FOREIGN EXCHANGE MASTER SERVICES AGREEMENT

Transcription

1 FOREIGN EXCHANGE MASTER SERVICES AGREEMENT This Foreign Exchange Master Services Agreement (the Agreement ) is effective as of, Introduction. This Agreement, including any schedule or exhibit attached hereto or incorporated by reference, governs use of the foreign exchange services described in this Agreement (the Services ). The Services are provided by Brookline Bank ( we, us, our, and Bank ), including through Bank s agents and service providers, to the customer designated below ( Customer, you, and your ). Capitalized terms are defined in the Definitions section at the end of this Agreement. 2. Access to and Use of the Services. We have no obligation under this Agreement until we have approved your use of, and provided you access to, the Services. We may reject your request to use the Services or terminate your use of the Services for any reason at our sole and absolute discretion, subject to applicable law. At any point, we may request additional information or documentation in order to continue to provide the Services to you. You acknowledge that at any time, at our sole and absolute discretion, we may restrict any remittances, disbursements, or transfers required or permitted hereunder with or without prior notice to you. The Services may not be used for personal purposes. If you wish to terminate your use of the Services, you agree to notify us of this intention in writing. Bank shall have a reasonable period of time after receiving such notice to terminate your access to the Services. The Agreement s terms and conditions will continue to apply to any FX Transaction not Settled prior to any termination of this Agreement. 3. Authorized Representatives. (a) Designating Authorized Representatives. In order to use the Services, you must complete the Bank s standard Certificate of Authority documentation which includes Schedule B- Incumbency Certificate and Signing Resolution (the Incumbency Certificate ) that identifies individuals who are authorized to sign documents on behalf of the Customer. The Incumbency Certificate and any subsequent replacement Incumbency Certificates are incorporated herein and made a part of this Agreement by reference. Revisions to the Incumbency Certificate must be made pursuant to the requirements set forth in the Certificate of Authority. For purposes of the Services, any individual who is authorized pursuant to the Incumbency Certificate, is authorized to administer Customer s use of the Services (individually and collectively referred to herein as Administrator ). The Administrator s authority pursuant to the Incumbency Certificate shall include the authority to serve as an Administrator for the Page 1 of 13

2 Bank s foreign exchange service web portal ( BROOKLINE BANK-FX ). The Administrator will be responsible for designating all persons authorized to access and use the Services on Customer s behalf (each an Authorized Representative ). Authorized Representatives will be identified by the Administrator on a trading authorization form provided by Bank, which is incorporated within this Agreement by this reference ( Trading Authorization Schedule ). The Administrator may also designate Authorized Representatives through the applicable function of BROOKLINE BANK-FX. Customer agrees that the Administrator will have all of the authority given to an Authorized Representative hereunder and may exercise that authority, and the authority of the Administrator, until such time as Customer notifies Bank in writing of any limitations on, or termination of, the Administrator s authority and Bank has had a reasonable opportunity to act on such notice. The term Authorized Representative, as used in this Agreement, includes the Administrator. Bank shall incur no liability to Customer for any act taken or omitted by the Administrator in relation to the appointment of Authorized Representatives. Customer and the Administrator are solely responsible for terminating any Authorized Representative. (b) Authority. Customer agrees that each Authorized Representative is authorized to initiate FX Transactions on Customer s behalf, designate Accounts (as defined herein), confirm FX Transactions, or otherwise participate in FX Transactions with Bank including, without limitation, by issuing settlement and delivery instructions to Bank. Customer may establish any limits on the authority of Authorized Representatives on the Trading Authorization Schedule and through BROOKLINE BANK-FX. Any limitations on the authority of Authorized Representatives established on the Trading Authorization Schedule shall apply solely to actions (for example, initiating FX Transactions) conducted hereunder by Authorized Representatives outside of BROOKLINE BANK-FX. Limitations on the authority of Authorized Representatives established through BROOKLINE BANK-FX shall apply solely to actions conducted by Authorized Representatives hereunder through BROOKLINE BANK-FX. Customer shall be solely responsible for establishing and maintaining such limitations. Bank may rely on the limitations established by Customer, including when there is an inconsistency between the limits established by Customer with respect to an Authorized Representative on the Trading Authorization Schedule and through BROOKLINE BANK-FX. Bank shall incur no liability for any act taken or omitted by any Authorized Representative, including the Administrator. 4. Compliance with Economic Sanctions. You agree to use the Services in full compliance with all applicable laws, rules, regulations, and codes of practice. We may choose to reject, cancel, or block an FX Transaction or Order you place with us for any reason, including because any party to the FX Transaction or Order is subject to government economic sanctions, or because acceptance of your FX Transaction or Order would constitute a violation of any applicable law or regulation. In the event we reject or cancel an FX Transaction or Order, we will refund any payment made to us for that FX Transaction or Order, unless we are prohibited to Page 2 of 13

3 do so by law. In the event that we reject an FX Transaction or Order, you may be responsible for losses related to exchange rate fluctuations between the time the FX Transaction was entered and the rejection of such FX Transaction. However, any gains or losses associated with the Bank s offsetting transaction will be used to offset your market generated financial gain or loss. 5. No Advice and Acknowledgement of Risk. You acknowledge that we do not and will not give any investment, legal, or tax advice, nor will we make any recommendations regarding the suitability, profitability, or appropriateness of any Order or FX Transaction. You acknowledge that all FX Transactions and Orders are unsolicited and entered into based on your own decision or that of your Authorized Representative. Bank and its employees cannot serve as your authorized representative or agent, and you agree not to solicit or rely on us or any of our employees for any investment, legal, tax, or trading advice. Any market analysis tools, consultative services, hedging strategies, or other services or data provided by us or our thirdparty service providers are for informational use only and do not constitute a recommendation regarding any FX Transaction or Order, and we do not guaranty the accuracy or timeliness of any such information. Foreign-denominated funds are subject to foreign currency exchange risk. You acknowledge that foreign exchange rates are subject to fluctuation based on factors including, but not limited to market movements. As such, investments in foreign currency are subject to risk. Depending on the applicable exchange rate, conversion of foreign currency into your home currency or any other currency may result in gain or loss. 6. FX Transaction Are Not FDIC Insured. You acknowledge and understand that FX Transactions are not insured by the Federal Deposit Insurance Corporation ( FDIC ). FX Transactions are not bank deposits and are not FDIC insured, nor are they guaranteed by the Bank. You are not protected against foreign currency exchange rate fluctuations, including by FDIC insurance, or any other insurance or guaranty program. 7. Execution and Settlement of Foreign Exchange Contracts. (a) Execution of FX Transactions and Orders. Customer may submit FX Transactions and Orders (i) through BROOKLINE BANK-FX, (ii) by telephone, through a Bank representative, on a recorded line at , or (iii) by to FXServices@Brkl.com provided that FX Transaction and Orders submitted by are not deemed to be received by Bank until Bank is able to contact an Authorized Representative by telephone (on a recorded line) to confirm the FX Transaction or Order. Bank will acknowledge FX Transaction or Orders by telephone call to an Authorized Representative. FX Transaction and Orders are made pursuant to the terms and conditions of this Agreement. Orders placed through BROOKLINE BANK-FX are market orders (executed immediately when placed using the current spot, or market, price) and are subject to any terms and conditions contained on BROOKLINE BANK- FX, which are incorporated herein by this reference. In the event of a conflict between the terms and conditions set forth in this Agreement and the terms and conditions contained on Page 3 of 13

4 BROOKLINE BANK-FX, the BROOKLINE BANK-FX terms and conditions shall control to the extent necessary to resolve such conflict. FX Transactions and Orders received by Bank, as determined by Bank s records, before 4 p.m. Eastern Time on a Business Day will be treated as received on that Business Day. FX Transactions and Orders received after 4 p.m. Eastern Time on a Business Day and FX Transactions and Orders received on days other than Business Days will be treated as received on the next Business Day. (b) Non-BROOKLINE BANK-FX Orders and FX Transactions. Orders placed other than through BROOKLINE BANK-FX may be established by Customer as At Market, Limit or Stop Loss by communicating such instructions to a Bank representative. When you designate an Order as an At Market Order, you are asking that we execute your Order at the market price, as determined by Bank, then available. When you designate an Order as a Limit Order, you are asking that we execute your Order at a minimum or maximum price at which you will buy or sell the applicable currency. When you designate an Order as a Stop Loss Order, you are asking that we execute your Order at a specific price at which you will buy or sell the applicable currency. We will use best efforts to fill each such Order at the designated price level. In the case of Stop Loss Orders, you acknowledge, however, that the execution price may differ from your designated price and that in the event that your Order cannot be executed at the designated price we fill your Order at our next best available price. The Bank may, but is not obligated to, accept orders by . If the Bank accepts an order by , it does so in its sole discretion, on an order-by-order basis. In no instance will orders submitted by become actionable until the order is confirmed by a telephone call on a recorded line between a representative of the Bank and an Authorized Representative of Customer. (c) Confirmations. We will seek to confirm each FX Transaction by calling (on a recorded line) and ing an Authorized Representative at the applicable telephone number and address set forth on the Trading Authorization Schedule. Customer will make every effort to confirm each such FX Transaction by not later than 4 p.m. Eastern Time on the date Customer executes the FX Transaction. In the event that Customer fails to confirm an FX Transaction by 4 p.m. Eastern Time on such date, Customer agrees that such failure will constitute Customer s confirmation of the FX Transaction and the terms of the Confirmation. Both parties will attempt, in good faith, to correct any errors. (d) Payment by Customer. You agree to provide payment ( Settle or Settlement ) in the agreed currency on the balance due for each FX Transaction on the date of final settlement for such FX Transaction ( Settlement Date ), unless we agree to receive payment on another payment date. The Settlement Date is reflected in the Confirmation for each FX Transaction. Such payment shall be in the form of immediately available funds debited from the deposit account held by you at Bank and that you designate for such purpose on the Trading Authorization Schedule (each such account is an Account ). You authorize us to debit the Account without any further instruction or authorization from you. We may require you to Page 4 of 13

5 establish and maintain a line of credit that can be used, in accordance with this Agreement, to satisfy any payment obligations you owe under this Agreement. If we require you to maintain a line of credit, it will be identified on the Trading Authorization Schedule ( Line of Credit ). In the event that the Account does not contain immediately available funds to pay any amounts you owe us under this Agreement, you authorize Bank to advance funds from the Line of Credit (each an Advance ) in amounts sufficient to satisfy any such payment obligation. You authorize us to issue such Advances without further instruction or authorization from you. You agree to maintain such Line of Credit during the term of this Agreement. Bank shall have the right, in lieu of issuing an Advance, to cancel any pending FX Transaction in the event the Account does not contain immediately available funds sufficient to Settle such FX Transaction. The agreement governing the Line of Credit is incorporated herein ( Line of Credit Agreement ). We have no obligation to Settle an FX Transaction unless the Account contains immediately available funds sufficient to Settle such FX Transaction. (e) Delivery of Payment by Bank. We will pay funds resulting from the Settlement of an FX Transaction electronically to your account on file with us, or by another method of our choosing. (f) Netting of FX Transactions. Bank may, at its option, net Customer s FX Transactions in accordance with the following terms: (a) Each FX Transaction will be netted with all pending FX Transactions between Customer and Bank for the same paired currencies having the same Settlement Date so as to constitute a single FX Transaction contract; and (b) If on any Settlement Date more than one delivery of a particular currency is to be made between Customer and Bank, each party shall aggregate the amounts deliverable by it and only the difference, if any, between these aggregate amounts shall be delivered by the party owing the larger amount to the other party. (g) Agreement to Pay. You agree to pay us upon demand all payments due for all FX Transactions, including but not limited to (i) any charges, fees, and costs as we may from time to time charge, as set forth in this or any other agreement applicable to the Services and any related services (such as Line of Credit Advance fees and interest, and Account fees), if any; (iii) any applicable tax imposed on FX Transactions; and (ii) any advances made under your Line of Credit to satisfy any Advances. You shall pay all such charges as they are incurred. At all times, Customer will be liable for the payment of costs and expenses associated with any debit balance or deficiency in the Account, together with interest on such amounts and all costs relating to any liquidation or collection, including reasonable attorneys fees. (h) Right of Set-Off. You agree that we may satisfy or partially set-off any liability you owe to us against any funds in the Accounts you hold with us without prior notice to you in the event that you fail to pay any fee, charge or other amount due hereunder at the time it is due. If such funds are insufficient to cover the payment you owe, you will remain liable to us for any balance Page 5 of 13

6 and for any losses suffered by us as a result of such insufficiency. We also have the right to place a hold on funds in your Accounts if we have a claim against you or pending exercise of our right of set-off. If we place a hold on your Accounts, you may not be able to withdraw funds from the Account and we can refuse to initiate or complete a pending FX Transaction or Order. In addition to any right of set-off, you hereby grant the Bank a security interest in your Accounts to secure any extension of credit we make to you now or in the future. We will notify you if we have exercised our right of set-off. (i) Applicable Rules and Regulations. All FX Transactions hereunder are subject to this Agreement (as in effect on the date of a Confirmation), to applicable laws and regulations, and to any applicable rules and interpretations of any governmental or regulatory authority. (j) No Cancellations. Except as otherwise permitted by this Agreement, you hereby acknowledge that all FX Transactions and Orders are final, unless otherwise required by law, and you agree that you may not, except as otherwise permitted by this Agreement, cancel or amend an FX Transaction and Order once placed. You are responsible for knowing the status of any pending FX Transactions and Orders before submitting additional FX Transactions and Orders. (k) Transaction Limits. Customer understands and agrees that Bank may place limits on the aggregate value of FX Transactions Customer will be allowed to enter into with Bank, and that these limits may be increased or decreased by Bank, in its sole discretion, without notice to Customer. (l) Quotes and Volatility. Generally, quotes given over the telephone and through BROOKLINE BANK-FX are valid for sixty (60) seconds from when they are made. Quotes made by are made for information purposes only and may not be a valid rate at the time you submit an FX Transaction or Order. At times, we may be unable to provide a quote on a requested currency pair, and under certain market conditions an FX Transaction s or Order s execution price may differ from the quoted rate provided by us. 8. BROOKLINE BANK-FX Transaction Platform. This Section 8 applies only when and to the extent Services are delivered to Customer through BROOKLINE BANK- FX. (a) End User License Agreement. We, or our third-party service provider(s), retain all right, title, and interest, including intellectual property rights, in and to BROOKLINE BANK- FX. You may not, nor permit any person, to: (a) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of BROOKLINE BANK-FX; (b) modify, translate, or create derivative works of BROOKLINE BANK-FX; (c) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to BROOKLINE BANK-FX; (d) remove, modify, or obscure any copyright notices or other Page 6 of 13

7 proprietary notices or legends appearing on or in BROOKLINE BANK-FX, or any portion thereof; (e) transfer, use, or export BROOKLINE BANK-FX in violation of any applicable laws, rules, or regulations of any government or governmental agency; (f) embed BROOKLINE BANK-FX in any third party applications; or (g) take any action that would interfere with the operation of BROOKLINE BANK-FX or expose it to any computer viruses or other contaminants. (b) Security. Customer and Authorized Representatives will access BROOKLINE BANK-FX through use of a username and password. Customer or its Administrator will establish a unique username and password for each Authorized Representative. Authorized users will also be required to answer a challenge question when accessing BROOKLINE BANK-FX. You agree that use of a user ID, password and challenge question is a commercially reasonable security procedure for accessing BROOKLINE BANK-FX and submitting FX Transactions and Orders to us. You will use security procedures required by any other agreement between you and us governing any Bank services you use in connection with FX Transactions, such as wire transfer services. You agree to notify us immediately if you become aware of any loss, theft or unauthorized use of any access credentials or devices you use to access BROOKLINE BANK- FX or to communicate with us, including your mobile devices. Bank is unable to ensure and does not guarantee that the data transmitted by you to Bank, or from Bank to you, will not be intercepted by third parties. You agree to refrain from transmitting confidential information through communications. You are responsible for all electronic communications, including image transmissions, and data and communications submitted to us via BROOKLINE BANK-FX. We reserve the right to deny you access to BROOKLINE BANK-FX if we believe that any loss, theft or unauthorized use of access credentials has occurred. To the fullest extent permitted by law, Bank will not have any liability in connection with any unauthorized interception or use of data relating to you; any inability to use or access BROOKLINE BANK-FX for any reason; any actions or transactions by an individual who uses your username and password; or any cause over which Bank does not have control, including problems attributable to computer hardware or software (including computer viruses), telephone or other communications, or Internet service providers; SPAM blockers or firewalls that may prohibit electronic communications, and/or Account information access through the Internet. (c) Unauthorized Access. Customer and Authorized Representatives are responsible for the protection of usernames and passwords used to access BROOKLINE BANK-FX, and must keep such information secret and not divulge to any third party other than an Authorized Representative. You acknowledge that you are responsible for all FX Transactions initiated on your behalf. If you permit another person to have access to your BROOKLINE BANK-FX credentials, we will treat this as if you have authorized such use and you will be liable for all transactions conducted by that person(s) and any fees incurred by such person s activities. However, we retain the right to cancel or reverse any FX Transactions or Orders that we deem, Page 7 of 13

8 in our sole and absolute discretion, to be unauthorized or ordered at a price not existing on our systems at the time the FX Transaction or Order was submitted. 9. Communications. You consent to the electronic delivery of all future terms and conditions, notices, disclosures, and any other documents, and you acknowledge that you may not receive any paper documentation. All communications in electronic format will be considered to be in writing, and to have been received no later than five (5) days after posting or dissemination, whether or not you have received or retrieved the communication. We may deliver any such documents to you via , by posting them on BROOKLINE BANK-FX, or by any other electronic means. You are solely responsible for reviewing and understanding all of the terms and conditions in these documents and for retaining them for your records. Your consent to receive communication electronically is valid until you revoke your consent by notifying us of your decision to do so. 10. Recordings. You hereby acknowledge and consent to the recording of any conversations with us regarding your use of the Services, Orders, and FX Transactions. We have no obligation to make or retain such recordings, and you consent to our use of any such recordings in any proceeding or as we otherwise deem appropriate. 11. Default. (a) Events of Default. We may declare you to be in default of this Agreement, in our sole discretion, for any of the following reasons: (a) you fail to make any payment when due; (b) you fail to perform any obligation in this Agreement or otherwise breach this Agreement in any way; (c) you have made any false or misleading statement in your Application, or a statement made in your Application becomes false or misleading and you do not correct this information within fifteen (15) days; (d) you are generally unable to pay your debts as they become due or are subject to a bankruptcy proceeding; (e) you fail to provide sufficient verification of your identity when requested or fail to provide supporting documentation when requested; (f) a payment order given by you or by us (on your instruction) to another financial institution is returned dishonored or unpaid and we are not provided with alternative payment within twentyfour (24) hours; (g) we are unable to contact you for a period of seven (7) days using the contact information you have provided to us; or (h) any other event of default described in this Agreement or the Line of Credit Agreement occurs (each an Event of Default ). (b) Remedies. If an Event of Default occurs, you will be responsible for any and all damages, losses, and expenses, including attorney s fees, incurred by us as a result of an Event of Default. If an Event of Default occurs, we may, without prejudice to any other of our rights against you and without prior notice to you, take any one or more of the following actions: (i) make your obligations to Bank immediately due and payable; (ii) close and liquidate any or all of your open Orders or Contracts and convert any foreign currency owing to you at our then- Page 8 of 13

9 prevailing exchange rate; (iii) satisfy any obligations due Bank out of any of your property in Bank s custody or control, including by exercise of our right of set-off or foreclosing on any security interest; (iv) decline to execute any or all of your outstanding Orders; (v) set off any obligations of Bank under this Agreement against the obligations of Customer to Bank under this Agreement; (vi) settle any outstanding Orders or Contracts; and (vii) close your Account(s) and terminate our relationship with you. 12. Disputes and Dispute Resolution. CUSTOMER AND BANK AGREE THAT THE FX TRANSACTIONS PROCESSED UNDER THIS AGREEMENT INVOLVE COMMERCE UNDER THE FEDERAL ARBITRATION ACT ( FAA ). ANY CONTROVERSY OR CLAIM BETWEEN CUSTOMER AND BANK, OR BETWEEN CUSTOMER AND ANY OF BANK S OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES FROM OR IS IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT OR IN TORT OR ANY OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (COLLECTIVELY, ANY CLAIM ), WILL BE SETTLED BY BINDING ARBITRATION. THE ARBITRATION WILL BE ADMINISTERED BY COMMERCIALLY REASONABLE ARBITRATION RULES AGREED UPON BY THE PARTIES ( THE ARBITRATION RULES ). UPON NOTICE BY EITHER PARTY TO ARBITRATE, THE PARTIES WILL REACH AN AGREEMENT AS TO THE SELECTION OF THE ARBITRATOR WITHIN THIRTY (30) DAYS OF THE DATE OF DEMAND FOR ARBITRATION. IF A CLAIM IS SUBMITTED TO ARBITRATION, (A) CUSTOMER WILL NOT HAVE THE RIGHT TO GO TO COURT (EXCEPT TO SELECT AN ARBITRATOR AND THE ARBITRATION RULES) OR TO HAVE A JURY TRIAL; (B) CUSTOMER WILL NOT HAVE THE RIGHT TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE ARBITRATION RULES OR OTHERWISE AGREED UPON BY THE PARTIES; (C) CUSTOMER WILL NOT HAVE THE RIGHT TO HAVE ANY CLAIM ARBITRATED AS A CLASS ACTION UNDER THE ARBITRATION RULES OR UNDER ANY OTHER RULES OF CIVIL PROCEDURE; (D) THE ARBITRATOR S DECISION WILL BE FINAL AND BINDING WITH LIMITED RIGHTS TO APPEAL; AND (E) THIS AGREEMENT SUPERSEDES ANY PRIOR ALTERNATIVE DISPUTE RESOLUTION AND/OR ARBITRATION AGREEMENT THAT MAY EXIST BETWEEN CUSTOMER AND BANK. THIS AGREEMENT TO ARBITRATE DISPUTES WILL SURVIVE THE CLOSING OF THE ACCOUNT AND THE TERMINATION OF THIS AGREEMENT. 13. Disclaimer of Liability; Indemnification. Customer s use of the Services and BROOKLINE BANK-FX is at its own risk. Neither Bank, nor any third-party service provider that Bank uses to provide the Services, will be liable for any losses, liabilities, cost, or damages including, without limitation, direct or indirect, express or implied, consequential, special, Page 9 of 13

10 punitive, incidental, or other damages, losses or expenses as a result of or in any way associated with the use of the Services or BROOKLINE BANK-FX or dependence on or use, or inability to use, the information, materials, products or Services available through Bank and BROOKLINE BANK-FX hereunder, or in association with any failure of availability, performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Bank or its third party providers are advised of the possibility of such damages, losses or expenses. Bank does not represent, warrant or guarantee that the Services or BROOKLINE BANK-FX will be free from errors or will be available. Bank will not be liable for any delay, difficulty in use, inaccuracy of information, computer viruses, malicious code or other defect in BROOKLINE BANK-FX, or for the incompatibility between BROOKLINE BANK-FX and Customer s computer devices accessing BROOKLINE BANK-FX. You hereby agree to indemnify us, including our officers, directors, employees, agents, affiliates, successors and permitted assigns, and to hold harmless the same from and against any and all loss, liability, cost, judgment, arbitration award, settlement, tax, penalty, action, damage, charge, expense, or fee (including attorneys fees) of any nature whatsoever, and claims therefore, including, but not limited to those arising out of or relating to: (a) your failure to provide true and accurate information in this Agreement and Application or to update such information as required; (b) any FX Transactions, instructions or Orders initiated by you or your Authorized Representative (including unauthorized Orders and FX Transactions as provided herein); and (c) any breach by you of any of the covenants, representations, acknowledgements, or warranties in this Agreement. You agree promptly to pay all damages, costs, and expenses, including attorney s fees, incurred by us in the enforcement of any of the provisions of this Agreement and any other agreements between us and you. YOU AGREE THAT BANK SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR LOST PROFITS, LOST SAVINGS, OR LOSS OF DATA, EVEN IF BANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OR RESULTING FROM CUSTOMER S USE OF THE SERVICES, INCLUDING BROOKLINE BANK-FX, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY. 14. Miscellaneous Provisions. (a) No Waiver. Our failure to exercise any of our rights or remedies under this Agreement shall not be deemed a waiver of such rights or remedies. (b) Counterparts. Any document that comprises this Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by delivery of a ".pdf" format data file, such signature shall Page 10 of 13

11 create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof. (c) Severability. If any provision of this Agreement is, or at any time becomes, inconsistent with any rule or law or becomes otherwise invalid or unenforceable, the term or provision will be deemed amended or superseded to conform with such rule or law and interpreted as close to the original intent of the provision as permitted under law, but all other terms of this Agreement will continue in full force and effect. (d) Governing Law. This Agreement, and the rights and obligations of the Parties hereto, are governed by, construed, and enforced in all respects by the laws of the state of Rhode Island, without regard to choice of law principles, and exclusive jurisdiction, sole venue and proper forum for all such disputes or legal proceedings to enforce this Agreement that are not subject to arbitration shall be in Rhode Island state and federal courts. (e) Assignment. You may not assign this Agreement, or any other part of this Agreement, without our prior written consent, which consent may be granted or withheld in our sole discretion, and any attempted assignment without our prior written consent will be null and void. We have the right, upon notice to you, to transfer or assign this Agreement and any other part of this Agreement to any affiliated or successor entity in our sole and absolute discretion without obtaining your prior consent. The Agreement will be binding upon and inure to the benefit of the Parties hereto, and to their permitted successors and assigns. (f) Force Majeure. Bank shall not be liable or responsible for any loss or consequence caused by circumstances beyond its control, including, but not limited to, acts of God, flood, fire, earthquake, explosion, riots, civil commotions, acts of terrorism, insurrection, wars, strikes, lockouts, irregularities or breakdown of public communications or circumstances arising out of laws and regulations imposed by domestic or foreign authorities or governments. (g) Entire Agreement. This Agreement (including each Confirmation) is supplemented by the terms of other agreements you may have entered into with us, or will enter into with us in the future based on the services you request that we provide to you, including, but not limited to the agreement governing the Account, Line of Credit Agreement, estatements Agreement, External Transfers Agreement, Funds Availability Policy, Online Banking Agreement, Privacy Notice, and, as applicable, related fee schedules and disclosures that govern the terms, conditions, and fees of your account(s) with us, each as may be amended from time to time (such account agreements, fee schedules and related disclosures being referred to as an Account Agreement and collectively as the Account Agreements ). The terms and conditions of your Account Agreements are incorporated by reference and made a part of this Agreement. Page 11 of 13

12 In the event of a conflict between the terms of this Agreement and any Account Agreements, the terms of this Agreement shall control as in regard to the provision of services outlined in this Agreement. Any terms not defined in this Agreement shall have the meaning assigned to them in the Account Agreements. (h) Modification. We may modify this Agreement at any time without prior notice and without your prior consent. Upon modification of this Agreement, we will notify you of such modification in writing. If you do not agree with any such modifications, your sole recourse is to terminate your relationship with us. Any FX Transaction or Order submitted by you after we notify you of a modification of this Agreement will be deemed acceptance by you of any such modification. You may not modify this Agreement without our express written consent. Any modification, amendment, alteration or waiver of this Agreement will not affect any outstanding orders or transactions or any legal rights or obligations that may have already arisen between Bank and Customer. (i) E-signatures. If you are executing this Agreement electronically, via the Bank s website or BROOKLINE BANK-FX, you are signing this Agreement electronically and agree to be bound by this Agreement. You agree that your electronic signature is the legal equivalent of your manual signature. 15. Definitions. The following definitions shall apply to this Agreement. Except where it is clearly inappropriate, words and phrases used in this Agreement should be interpreted so the singular includes the plural and the plural includes the singular. (a) Application means the form provided by Bank and completed by Customer requesting access to the Services. (b) Beneficiary means any payee designated by you as the recipient of a funds transfer related to the settlement of an FX Transaction. (c) Business Day means any day on which we are open for business, excluding Saturday, Sunday, and any Federal holiday. (d) Bank means Brookline Bank, a Massachusetts bank, the principal address of which is 131 Clarendon Street, Boston, MA (e) Confirmation is an electronic or verbal notice from Bank that describes all the relevant details and terms of an FX Transaction or Order that has been accepted by us. (f) Contract means a Spot Contract or Forward Contract. (g) FX Transaction means a currency transaction conducted pursuant to a Spot Contract or Forward Contract under this Agreement. Page 12 of 13

13 (h) Exchange Rate or Rate means the rate at which Bank has agreed to convert USD (or for an incoming transaction, foreign currency) into a specified foreign currency (or for an incoming transaction, into USD). (i) Forward Contract means a binding contract memorialized by a Confirmation wherein Customer agrees to purchase a specific amount of funds in one currency from Bank and also agrees to sell a specific amount of funds in another currency to Bank on a specific date or range of dates, but where the Settlement Date is more than two (2) Business Days after the Execution Date. (j) Order means any instruction placed by a Customer by or through telephone, , BROOKLINE BANK-FX, or any other mutually agreeable means by which the terms of a proposed FX Transaction are communicated to us. (k) Party means either the Customer or Bank. (l) Spot Contract means a binding contract wherein Customer agrees to purchase a specific amount of funds in one currency from Bank and also agrees to sell a specific amount of funds in another currency to Bank on a date which is two (2) Business Days or less after the Execution Date. (m) Standing Order means an Order at a predetermined rate, which remains active until cancelled by the Customer (if permitted) or filled by us. (n) You and your means the Customer and all Authorized Representatives of the Customer. If there is more than one Authorized Representative, then these words mean each Authorized Representative separately, and all Authorized Representatives jointly. IN WITNESS WHEREOF, the undersigned have executed this Foreign Exchange Master Services Agreement this day of, 20. Brookline Bank By: Title: Date: Name of Customer By: Title: Date: Page 13 of 13