Terms and Conditions for General Investment Services

These Terms and Conditions for General Investment Services (“Terms and Conditions”) set out the terms and conditions under which Bank of Communications Co., Ltd. Hong Kong Branch (the “Bank”) agrees to provide and continue to provide General Investment Services as specified in the Agreement (as defined below) to the Customer. These Terms and Conditions are accordingly supplemental to and form part of the Agreement.

The Agreement and these Terms and Conditions together with any other specific terms and conditions applicable to particular types of Services provided by the Bank to the Customer are binding on the Customer. If there is any inconsistency between the Agreement and these Terms and Conditions, these Terms and Conditions shall prevail.
These Terms and Conditions are subject to Applicable Regulations.

PART A: GENERAL PROVISIONS

1.      Definition and Interpretation


1.1    In these Terms and Conditions, unless the context otherwise requires:
"Account" includes any account or accounts of whatever nature or with whatever title maintained or to be maintained by the Bank for the Customer, including the Designated Account(s), the Related Account(s) and the Settlement Account(s).
"Account Address" means, in relation to a Designated Account, the correspondence address (if any) specifically designated by the Customer in the Agreement or any document acceptable to the Bank to be applicable to that particular Designated Account, as may be amended or changed from time to time.
"Advice" has the meaning ascribed thereto in Clause 5.1.
"Affiliates" means, in relation to the Bank, (i) any entity controlled, directly or indirectly, by the Bank; (ii) any entity that directly or indirectly controls the Bank or (iii) any entity directly or indirectly under common control with the Bank; and “control” of any entity or person means beneficial ownership directly or indirectly, of more that 50% of the issued ordinary or common share capital (or the like) of the entity or person and “Affiliate” shall be construed accordingly.
"Agreed Signing Arrangement" means the signing arrangement of a particular set of Authorized Signatory(ies) stipulated by the Customer and accepted by the Bank for or in connection with a Designated Account, subject to such changes as may be agreed by the Bank from time to time.
"Agreement" means the Agreement for General Banking Services and Electronic Finance Services or the Agreement for General Banking Services and General Investment Services or the Agreement for General Investment Services in the form as prescribed by the Bank from time to time and duly signed and submitted by the Customer to the Bank for the provision of the Services by the Bank.
"Applicable Regulations" means all laws, rules and regulations in HKSAR and elsewhere, and all rules, regulations, codes, guidelines, judgments, orders and directives (whether or not having the force of law) issued by any Authority, and all customs and practices of any exchange, clearing house or market in HKSAR or elsewhere, which are applicable to the Bank, the Customer, the Services and/or the Transactions from time to time.
"Authority" means the government of Hong Kong or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory (including self-regulatory) or supervisory body or commission, central bank or banking commission, court or other entity exercising statutory, regulatory, judicial, administrative, taxing or supervisory powers or functions of or pertaining to government or other regulatory body, exchange, clearing house or market operated by such exchange, industry or other agency which in the opinion of the Bank, has jurisdiction over the Bank Group, the Customer, the Service and/or the Account.
"Authorized Person" means, in relation to a Designated Account, each person appointed by the Customer and accepted by the Bank for the purpose of giving Instructions under Clause 18.4 for that particular Designated Account;
"Authorized Representative(s)" means, where the Customer is a limited company or other body or entity acceptable to the Bank, the person(s) designated as such by the Customer and accepted by the Bank for the purpose of giving notice or communication to the Bank under Clause 11.7(c), subject to such changes as may be agreed by the Bank from time to time.
"Authorized Signatory(ies)" means the authorized signatory(ies) appointed by the Customer and accepted by the Bank for or in connection with a Designated Account, subject to such changes as may be agreed by the Bank from time to time.  For the avoidance of doubt, in case where the Customer is an individual or consists of two or more individuals, such Authorized Signatory(ies) may include such person or (as the case may be) any one or more of such persons; and unless the context does not allow, the term "Authorized Signatory(ies)" shall mean the Authorized Signatory(ies) concerned together with his/her/their related specimen signature(s) on record with the Bank.
"Bank" means Bank of Communications Co., Ltd. Hong Kong Branch and any of its offices or sub-branches in HKSAR and includes its successors and assigns.
"Bank Group" means the Bank and its Affiliates and any of their branches.  
"Business Day" means, in connection with Transactions relating to deposits and outward remittance, a day on which banks are open for business in HKSAR; in connection with Transactions relating to Securities, a day on which dealing in such Securities can take place; in connection with Transactions relating to foreign exchange margin trading, any of the days prescribed by the Bank from time to time on which the Bank is open for foreign exchange margin trading for the relevant currency quotation; and in any other case, a day on which banks are normally open for business in HKSAR.
"Business Hours" means, in respect of each type of Transaction, the time prescribed by the Bank from time to time during which, on a Business Day, Instructions may be given to and accepted by the Bank.
"Customer" means the person or each person who has signed and submitted the Agreement and, where the context permits, includes the Authorized Person, the Authorized Signatory(ies) and the Authorized Representative(s).

"Code of Conduct" means the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission.

"Corporate Professional Investor" has the meaning given to it in the Code of Conduct.

"Correspondence Address" means the correspondence address specified as such by the Customer in the Agreement or any document acceptable by the Bank, as may be effectively amended by the Customer from time to time by notification to the Bank pursuant to the provisions hereunder.
"Consolidated Statement Address" means the address specifically designated by the Customer and agreed by the Bank to be the address for receiving a consolidated statement, as may be effectively amended by the Customer from time to time by notification to the Bank pursuant to the provisions hereunder, and in the absence of such specific designation, the Consolidated Statement Address shall be that of the Correspondence Address.
"Designated Account" means any account which the Bank may from time to time and at any time agree to establish and maintain for the Customer in connection with the provision of any particular Service or Services to the Customer.
"Device" means any device (including but not limited to (where applicable) Security Device, any digital or electronic certificate or encrypted software), equipment, machine or computer provided (whether by the Bank or not) to or otherwise employed by the Customer for giving an Instruction to the Bank under any Designated Account or Service.
"Device PIN" means the password used for activating the Security Device.
"EFC Number" means, in relation to a Designated Account or Service under the Electronic Finance Services, the identification number of the Customer from time to time and at any time designated by the Bank for the purpose of facilitating the Customer to identify himself to the Bank before or in the process of giving Instructions to the Bank under the relevant Designated Account or Service.
"Electronic Input" means any electronic signals which are given to the Bank by use of such Device as the Bank may from time to time require or specify and which are received and recognizable by the computer or other systems of the Bank.

"Exempt Corporate Professional Investor" means a Corporate Professional Investor in respect of which the Bank is reasonably satisfied that the criteria in paragraph 15.3A(b) of the Code of Conduct are met, and the Bank complies with the requirements set out in paragraph 15.3B of the Code of Conduct.
"HKSAR" means the Hong Kong Special Administrative Region of the People's Republic of China.
"Hong Kong Dollars" or "HKD" means the lawful currency for the time being of HKSAR.
"Instruction" means, in connection with any Designated Account or Service,  (a) any verbal instruction or instructions from the Customer to the Bank given personally or over the telephone, (b) any instruction or instructions from the Customer given by Electronic Input through such telecommunication means as specified by the Bank from time to time, or (c) any written instruction or instructions from the Customer transmitted or conveyed to the Bank by facsimile or in person or by other means, all complying with the Bank's respective specifications.
“Institutional Professional Investor” has the meaning given to it in the Code of Conduct.

"Investment Products" has the meaning ascribed thereto in Clause 1.1 of Part C.

"User Name" means a name or alias selected by the Customer to be used in place of the EFC Number for the purpose of giving Instructions through the Internet.
"Notice of Irregularity" has the meaning ascribed thereto in Clause 5.4.
"Notice of Non-receipt" has the meaning ascribed thereto in Clause 5.2.
"Password" means, in relation to a Designated Account or Service, the personal password(s) assigned to or selected by the Customer for the purpose of facilitating the giving of Instructions by the Customer in relation to the relevant Designated Account or Service, and such password(s) may be subsequently re-selected by the Customer from time to time.
"Related Account", means in relation to a Designated Account, any account or accounts of the Customer maintained with the Bank and specified by the Customer from time to time and at any time for the purpose of transfer of funds into the relevant Designated Account from such Related Account or vice versa.
"Rules" means the rules and regulations from time to time and at any time stipulated by the Bank in respect of the particular type of Account or Service.
"Securities" means any interests, rights or property (whether in the form of an instrument or otherwise) commonly known as securities or regarded as securities pursuant to law which the Bank may at its absolute discretion from time to time offer to deal in, including, without limitation:
(a)  shares, stocks, debentures, bonds, loan stocks, funds or notes of or, issued by, any body whether incorporated or unincorporated or any government or government authority;
(b)  rights, options or interests (whether described as units or otherwise) in or in respect of any securities in (a) above;
(c)  certificates or receipts for, or warrants to subscribe for or purchase, any securities in (a) above; and
(d)  interests in any unit trust, mutual fund or other collective investment scheme, and includes any unit, share or part thereof.  For the avoidance of doubt, "Securities" includes Investments Products.
"Security Code" means a one-time password generated by the Security Device for use by a Customer for Two-Factor Authentication.
"Security Device" means, where applicable, an electronic device designated by the Bank for use by each Customer to generate the Security Code.
"Service" means any service provided or to be provided by the Bank under the General Investment Services comprising the Electronic Finance Services and the Investment Accounts Services, as specified in the Agreement. 
"Settlement Account" as the context requires means a settlement account for the purposes of the Electronic Finance Services or has the meaning ascribed thereto in Clause 1.1 of Part C.
"Signature Number" or "Sign. No." means the number assigned by the Bank to the Customer to represent a particular set of Authorized Signatory(ies) together with the relevant Agreed Signing Arrangement.          
"Signing Instruction" means, in relation to the Authorized Representative(s), the signing arrangement as between the Authorized Representative(s) stipulated by the Customer and accepted by the Bank, subject to such changes as may be agreed by the Bank from time to time.
"Statement" has the meaning ascribed thereto in Clause 5.1.
"Terms and Conditions" means the terms and conditions set out herein, as the same may be supplemented or amended from time to time and where the context permits, includes the provisions in the Agreement.
"Transaction" means a transaction effected by the Bank under any Designated Account or Service pursuant to or as a result of an Instruction given in relation to the relevant Designated Account or Service.
"Two-Factor Authentication" means the combination of two different factors for the purpose of verifying a Customer's identity.
1.2    Unless otherwise stated, reference to Parts, Clauses and Schedules means the parts and clauses of and schedules to the Terms and Conditions and reference to Clauses in a Part means the clauses of that Part. Headings are inserted for convenience of reference only and shall be ignored in the interpretation hereof.

1.3    All the Schedules hereof are an integral part of the Terms and Conditions.

1.4    Unless the context otherwise requires:

(a)  words denoting the singular include the plural and vice versa;
(b)  words importing a gender include every gender;
(c)  the word "person" includes any individual, company, corporation, firm, partnership, joint venture, association, sole proprietorship, trust or other incorporated or unincorporated entity or body of persons.

2.      Terms and Scope of Services

2.1     All Instructions and Transactions are subject to and governed by the Terms and Conditions, the Rules and the applicable rules and regulations of the Hong Kong Association of Banks and subject to the provisions of all Applicable Regulations, including the rules, codes and guidelines of the Hong Kong Monetary Authority, the Securities and Futures Commission and the relevant exchange and clearing houses, provided always that the Bank will not be liable for any loss or damage caused to the Customer by reason of obligations thus imposed upon the Bank. Unless otherwise stated in the Rules, if there is any conflict between the Terms and Conditions and the Rules, the former shall prevail.

2.2    Subject always to the Bank's agreement with the Customer, the Services may cover:
(a)  transfer of funds from a Related Account to the related Designated Account or vice versa;
(b)  foreign exchange margin trading and such other currency exchange transactions, spot or forward, as the Bank may permit;
(c)  sale, purchase, transfer and custody of and other related services in connection with Securities;
(d)  outward remittance by telegraphic transfer;
(e)  the Investment Accounts Services; and
(f)   such other types of banking or investment services as the Bank may from time to time introduce.

2.3    The Bank may from time to time upon a Customer’s application open any Account and/or provide any Service at its sole and absolute discretion. The Bank may refuse an application for an Account and/or Service for any reason. Any Account and/or Service opened, maintained and/or set up shall be upon and subject to the Agreement and the Terms and Conditions and subject to such other conditions and requirements as the Bank thinks fit.

2.4    To enable the Bank to consider whether to open and/or provide the Customer with any Account and/or Service, the Customer is required to supply to the Bank from time to time the following documentation and information:

(a)  the Agreement together with any specific application form(s) for the relevant Account and/or Services duly completed and signed by the Customer;
(b)  a self-certification from the Customer and/or the Customer’s owner(s) or shareholder(s) as to his/their status in the Bank’s prescribed form or in such other form agreed by the Bank, or such other documentary evidence acceptable to the Bank; and
(c)  all documentation and other information required by the Bank for the purpose of performing the due diligence and identification procedures in relation to the Customer in accordance with all Applicable Regulations and its internal policies (including verification of the identity of the Customer or, as the case may be, owner(s) or shareholder(s) of the Customer and source of funds and the nature of business of the Customer).

2.5    The Customer agrees that the operation of the relevant Account and the use of the Service fully complies with and adhere to all Applicable Regulations and the Rules.

2.6    The Customer hereby warrants, represents and undertakes that:
(a)  all information (written or otherwise) furnished by the Customer to the Bank at any time is true and accurate in all material respects and does not omit material facts;
(b)  the Customer will from time to time provide such information and documents (including any self-certification) as the Bank may from time to time require or deem necessary for the purpose of the Bank Group's compliance with Applicable Regulations or any obligations imposed on any member of the Bank Group under any present or future contractual or other commitment with any Authority or compliance with the Bank’s internal policy and procedures; and

(c)  the Customer will promptly notify the Bank in writing of any change in circumstances that results in any change in any information furnished to the Bank or any change in the status of the Customer (including any change in name, nationality, tax residence status or residence status, residence address and mailing address, telephone or facsimile number and email address) and where the Customer is a partnership or a company, any change in its constitution, partners (including any change in tax residence status), shareholders (including any change in tax residence status), directors or company secretary, or the nature of the Customer’s business.

3.      Instructions

3.1    Instruction must be given in any of the following manners:

(a) In the case of verbal Instruction given by use of telephone, the Customer must dial such number as designated by the Bank for the relevant type of Transaction from time to time and at any time and the Customer must follow the procedure and directions given by the Bank on the line through an officer of the Bank and/or through the use of prerecorded voice response unit mechanism. Before accepting such verbal Instruction by the Customer, the Bank may (but shall not be obliged to) require the Customer to quote his relevant EFC Number and/or the relevant Password and/or such other information or identification as the Bank may deem fit at the time;
(b) In the case of Instruction by Electronic Input, the Customer must give such Instruction:

(i)      only by such means of telecommunication and in such manner as the Bank may from time to time designate for the relevant type of Transaction;

(ii)      by use of the suitable Device (if applicable) to obtain access to the designated computer or other systems of the Bank for the relevant type of Transaction; and

(iii)     at the request of the Bank (such request may be represented by electronic image or digitized voice or other electronic form, as the case may be), by inputting the relevant EFC Number or User Name and/or the relevant Password and/or the Security Code and any other information relating to the identity of the Customer as may be required by the Bank, as well as the information and details with respect to the Transaction; or

(c)  In the case of verbal Instruction given by the Customer personally or written Instruction transmitted or conveyed to the Bank by facsimile or in person or by any other means (other than by means of Electronic Input), the Customer must comply with all the specifications that the Bank may require at the time when the Instruction is given,
Provided Always That the Bank may from time to time, with respect to any particular type of Transaction, restrict the manner of giving Instruction to any one or two of the manners as described in Sub-clauses (a), (b) and (c) above and/or prescribe any specific requirements for such manner(s) of giving Instruction.
3.2     The Bank shall, and the Customer expressly authorizes the Bank to, record on a centralized tape recording system all telephone conversations between the Customer and the Bank in the course of business.  The Customer expressly agrees that if a dispute arises at any time in relation to the contents of any such communications, then the recording of such communications, or a transcript of the same certified as a true transcript by one of the Bank's officers, shall be conclusive evidence between the Bank and the Customer as to the contents and nature of such communications unless and until the contrary is established and may be used as evidence in such dispute.

3.3     All Instructions must be given by the Customer to the Bank in clear and unambiguous terms. Any Instruction given and any Transaction effected pursuant to or as a result of that Instruction as understood and executed by the Bank in good faith shall be irrevocable and binding on the Customer.

3.4     If any Instruction is given other than in accordance with this Clause 3, the Bank is authorized (but is not obliged) to elect without reference to the Customer either to ignore that Instruction or to execute it with such modifications as the Bank considers necessary.

3.5     The Bank is entitled to execute any verbal Instruction believed by it in good faith to have been given by the Customer.

3.6     The Bank is authorized to act on any written Instruction given by the Customer in accordance with the applicable Agreed Signing Arrangement. The Bank will in the ordinary case only conduct a check on the latest specimen signature(s) and Agreed Signing Arrangement specified by the Customer to the Bank.

3.7     In the case of written Instruction transmitted to the Bank by facsimile, the Bank shall have no duty to verify the identity or authority of the person giving the Instruction and may accept the same as originated from and authorized by the Customer, provided that the facsimile signature(s) in the Instruction is/are considered by the Bank in good faith to resemble the relevant specimen signature(s) provided to the Bank in the applicable Agreed Signing Arrangement.  Any facsimile Instruction so accepted by the Bank shall be irrevocable and binding on the Customer, whether or not such instruction is in fact given personally or authorized by the Customer.

3.8     The Customer recognizes the risks in giving Instructions by telephone, facsimile, electronic mail or other electronic means including, without limitation, the risk of any Instruction being unauthorized or given by an unauthorized person.  The Customer accepts the risks in full if the Customer chooses to give Instructions by such means.

3.9     It is the sole responsibility of the Customer to ensure that each Instruction and the relevant information are given to the Bank in the required form and manner and that all information is complete and accurate.  The Bank is not responsible to verify the properness, completeness or accuracy of any Instruction or any information provided in relation to any Instruction.  Nor is the Bank responsible for any consequence or loss or damage to the Customer arising from or in connection with any error or omission in any Instruction or any information provided in relation to any Instruction.

3.10   Once the Customer has given an Instruction, it may not be amended, rescinded or withdrawn without the Bank's written consent.

3.11   The Customer acknowledges that any Instruction given to the Bank may, depending on prevailing market conditions, fail to be executed (in whole or in part) or that the manner and timing of execution of any Instruction may be different from that directed by the Customer.  In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any loss or damage incurred or suffered by the Customer due to delay or failure by the Bank to execute any Instruction (in whole or in part).

3.12   The Bank shall not be obliged to accept or act on every Instruction received by it and may refuse to accept any Instruction without giving any reason or notice therefor. The Bank will only accept and act on an Instruction in so far as (in its sole and absolute discretion) is practicable or reasonable for the Bank so to do and in accordance with its regular business practice and procedure and even after accepting an Instruction if circumstances require, the Bank shall have the absolute right to suspend or discontinue or not to proceed or to delay proceeding with the execution thereof without giving any reason or notice therefor and in the absence of wilful misconduct or negligence by the Bank, without being liable for any consequences. Without limiting the generality of the foregoing, any Instruction received by the Bank outside the Business Hours or on a day which is not a Business Day will be considered to have been received by the Bank on the next Business Day. The Bank may impose from time to time the minimum or maximum amount applicable to a Transaction.

3.13   Without prejudice to the generality of the provisions in Clause 3.12 above, the Customer agrees and confirms that, if in the Bank’s sole opinion, any Instructions to act or not to act, or any document presented to the Bank or any intended Transaction involves or may involve any illegal or unlawful activities (including money laundering, drug-trafficking, terrorist financing, bribery, corruption or other activities that are prohibited or are deemed illegal or unlawful by any Applicable Regulations) or does not otherwise comply with Applicable Regulations or the Bank’s internal policy, or may constitute a breach or violation of economic or trade sanctions imposed by any Authority, the Bank has the absolute right:
(a)  not to act or to delay acting on any Instruction or enter into or conclude any Transaction for or with the Customer or any person;
(b)  to delay, block or refuse to make any payment under or in connection with such Instruction or Transaction;
(c)  not to handle or process such Instruction or Transaction or the documents,
and the Bank shall not be liable for any delay or failure to pay, process or return such documents or for any related disclosure of information.

3.14   The Customer agrees and acknowledges that the Bank Group are required to act in accordance with Applicable Regulations and that the Bank Group may take such action as it considers appropriate in accordance with or by reference to all such Applicable Regulations and requests of Authority. The Bank may:
(a) investigate any instructions, payment messages and other information provided to or passed through the Bank; or
(b) report suspicious transactions to the relevant Authority without reference to or knowledge of the Customer and free of any liability whatsoever to the Customer or any person.


3.15   Unless the Bank otherwise agrees, no Instruction may be given for transfer of funds from an Account of the Customer to another account which is not in the name of the Customer.

3.16   Any Instruction or Transaction outside the scope specified herein will generally not be acted upon or effected by the Bank. However, if any Instruction outside the scope specified herein is relied on or acted upon by the Bank, such Instruction and all Transactions arising therefrom shall be binding on the Customer.

4.      Sufficiency of Fund

4.1     Instructions will not be acted on if there is insufficient fund or pre-arranged credit available in the Account concerned. The Bank, however, may in its discretion act on such Instruction despite the lack of available fund without seeking prior approval of or giving prior notice to the Customer. The Customer shall be liable for the resulting overdraft, advance or credit and shall repay the same to the Bank on demand together with interest thereon from the date of advance to the date of actual repayment (before and after judgment) at 9% per annum above the best lending rate as conclusively quoted by the Bank from time to time and compounded at such intervals as the Bank may reasonably determine from time to time.

4.2     Without prejudice to Clause 4.1, the Customer acknowledges that the Bank is entitled to place order or enter into Transaction for the purpose of carrying out or effecting any Instruction without first checking whether there is sufficient fund or available pre-arranged credit in the Account concerned. In such a case, if the Instruction or an intended Transaction concerned is carried out or effected, the Bank is entitled (but not under any duty), at any time at its discretion without giving notice to the Customer, to place other order or enter into other Transaction to counter the Instruction so carried out or Transaction so entered into as above and any loss, deficit or shortfall arising therefrom or as a result thereof shall be entirely borne by and for the account of the Customer and the Bank shall be entitled to debit the same against any of the Account(s) of the Customer with the Bank. However, if there is any gain, such gain shall belong absolutely to and be retained by the Bank for its own use and benefit. For the above purpose, the Bank's certificate in writing as to such loss, deficit or shortfall and the amount thereof shall be binding and conclusive against the Customer, save for manifest error.

 

5.      Notification of Transaction


5.1     For all Transactions concluded in relation to a Designated Account (except for (a) a Transaction relating to foreign exchange margin trading which shall be governed by Schedule II of Part B, (b) a Transaction under the Investment Accounts Services which shall be governed by Part C, and (c) a Transaction involving only of a transfer of funds among the Related Accounts of the same Designated Account or from the Designated Account to the Related Account(s) or vice versa), the Bank will send an "Advice" relating to each Transaction in such form and by such means as determined by the Bank from time to time to the Customer no later than the end of the second Business Day after the conclusion of each Transaction; the Bank will also provide on a monthly basis the Customer with a monthly statement of account ("Statement") recording the Transactions made under a Designated Account during the relevant period or other details of the Designated Account, unless during the relevant period, there is no Transaction or revenue or expense item in such Designated Account, the particular Designated Account has no outstanding balance, the Customer has not deposited with the Bank any client securities, collateral or other security in relation to a margined Transaction and no such client securities, collateral or other security are held by the Bank for the account of the Customer and, if the Designated Account is a securities account, such Designated Account is not holding any Securities during the relevant period.

5.2     If the Customer does not receive the Advice or Statement by the close of business 5 Business Days (for a Customer with an address outside HKSAR, 8 Business Days) after the date of the Instruction concerned or the end of each regular period (as the case may be), the Customer shall immediately give the Bank a notice ("Notice of Non-receipt", in the form acceptable to the Bank) in writing thereof signed in accordance with the Agreed Signing Arrangement applicable to the relevant Designated Account or in such other form and by such other means as the Bank may from time to time expressly agree for the same to be actually received by the Bank within 10 Business Days (for a Customer with an address outside HKSAR, 15 Business Days) from the date of the Instruction concerned or the end of each regular period (as the case may be).

5.3     If the Bank receives the Notice of Non-receipt as aforesaid within 10 Business Days (or for a Customer with an address outside HKSAR, 15 Business Days) from the date of the Instruction concerned or the end of each regular period (as the case may be), the Bank shall forthwith send another Advice or Statement (as the case may be) to the Customer.

5.4     The Customer shall have a duty to examine each Advice and Statement and notify the Bank of any alleged error or irregularity therein in writing duly signed in accordance with the Agreed Signing Arrangement applicable to the relevant Designated Account or in such other form and by such other means as the Bank may from time to time expressly agree ("Notice of Irregularity"). Such notice should be actually received by the Bank within 90 days from the date of the Advice or Statement (as the case may be), or in the case of Advice or Statement (as the case may be) re-issued pursuant to a Notice of Non-Receipt, from the date of that re-issued Advice or Statement (as the case may be).

5.5     If the Bank does not receive any Notice of Irregularity in accordance with the aforesaid form and manner within the aforesaid 90 days, or if in the meantime the Customer shall have given any Instruction to the Bank to deal with any subject matter of the Transaction concerned, the Advice or Statement (as the case may be) shall be deemed to have been duly received by the Customer who shall be deemed conclusively to have accepted all the matters contained in the Advice or Statement (as the case may be) as true and accurate in all respects, save for manifest error.

5.6     If the Bank receives the Notice of Irregularity within 90 days from the date of the Advice or Statement (as the case may be), then unless the dispute regarding any alleged error or irregularity is settled between the Customer and the Bank within one Business Day, the Bank shall be entitled, at any time and without prior notice to the Customer, to take the following actions and to have the following rights and powers:

(a)  if the Transaction involves currency conversion (except any foreign exchange margin trading transaction), (i) debit the proceeds of the Transaction concerned against the Account into which they were credited, (ii) convert the same back to the original currency at the then prevailing buying or selling rate quoted by the Bank and (iii) credit the converted sum into the original Account from which the proceeds of the Transaction were derived (or in case where such proceeds were originally derived from a fixed or call deposit under a deposit account, apply the converted sum to establish a fixed or call (as the case may be) deposit on the original terms but at the rate of interest quoted by the Bank therefor at the time of such application); and
(b)  if the Transaction involves sale or purchase of Securities, place other order or enter into other Transactions on behalf of the Customer to counter the Transaction concerned.
5.7    (a)  Any loss, deficit or shortfall arising or resulting from the Bank taking such actions in Clause 5.6 above shall be entirely borne by and for the account of the Customer (except where the irregularity or error of the Transaction concerned is caused by wilful misconduct or negligence on the part of the Bank or its employees, agents or servants) and the Bank's certificate in writing as to such loss, deficit or shortfall and the amount thereof shall be binding and conclusive against the Customer, save for manifest error; and    
(b)  In the meantime the Bank is entitled not to allow any withdrawal, delivery or dealing by the Customer of the proceeds of a Transaction or Securities purchased except for the purpose of crediting the proceeds of the Transaction to another Account in the name of the Customer whether in the same currency of such proceeds or after conversion into another currency and except for the purpose of giving effect to the Transaction made under Clause 5.6(b) above.

5.8     Unless the Bank shall determine otherwise, the Bank shall have the right to express any figures on any Advice or Statement by rounding off to two places after the decimal, save in relation to Transactions involving currency exchange which may be expressed by rounding off to the number of places of decimal as the Bank may determine from time to time, which may have regard to prevailing market practice for the currency concerned.  Notwithstanding the above, commissions charged for Transactions in Securities may be rounded off to the nearest ten cents.

5.9     The Customer may choose to receive electronic statements of account in respect of the Designated Account under the e-statement service ("E-Statement Service") provided by the Bank, whereby all such statements ("e-statements") from time to time issued by the Bank to the Customer's in respect of the Designated Account can be viewed on the Bank's website, downloaded and printed out by an Authorized Person.

5.10     The Customer acknowledges and agrees that once an application for the E-Statement Service is accepted by the Bank, no physical copies of the statements in respect of the Designated Account will be issued and sent by the Bank to the Customer unless the Customer applies for discontinuance of the E-Statement Service and resumption of issue by the Bank of physical copy of the statements, or unless the Customer chooses to receive both the e-statements and physical copies. The Customer may be required to pay a fee if the Customer chooses to receive physical copies of the statements.

5.11     Notwithstanding any contrary provision in these terms and conditions, each Authorized Person is authorized to use the E-Statement Service. The Customer acknowledges and agrees that the Authorized Person(s) may view all transaction details of and receive all notices, advices, statements, confirmations or other communications in respect of the Designated Account even if the Designated Account has not been included as an account accessible to the particular Authorized Person for giving of Instructions.

5.12     The Customer shall check for and view e-statements through the E-Statement Service regularly. Without prejudice to the foregoing, the Bank may send a notice ("notice") to the email address designed by the Customer for the purpose of the E-Statement Service to notify the Customer of the posting of the latest e-statement on the Bank's website. If a notice is returned undelivered, the Bank may send an SMS message to the Customer. The Customer shall promptly notify the Bank of any change in the Customer's email address or mobile phone number. For the avoidance of doubt, it is the obligation of the Customer to review all e-statements through the E-Statement Service before the same are deleted by the Bank even if the Customer has not received a notice from the Bank for whatever reason.

5.13     The Customer confirms that the Customer has and will, at its own cost, maintain appropriate electronic equipment, connections and networks(including sufficient capacity) to, and agree to, receive e-statements at all times.

5.14     The Customer acknowledges and confirms that it is the responsibility of the Customer to safeguard the Customer's electronic equipment and take all reasonable precautions to prevent unauthorized persons accessing the E-Statement Service.

5.15     The Customer agrees to open, read or access and carefully review and examine all e-statements in a timely manner and advise the Bank as soon as possible and within 90 days from the date of each e-statement of any error, discrepancy, unauthorized transaction or other irregularity.

5.16     The e-statements can be viewed on the Bank's website, downloaded and printed out by an Authorized Person within 12 months (in the case of a monthly statement of account) or 1 month (in the case of a daily statement of account, contract note and receipt) after its posting. Thereafter the Customer may apply to the Bank for a physical copy subject to a charge.

5.17     The Customer shall inform the Bank as soon as possible if any e-statement, website hyperlink or any electronic profile appears to be irregular.

5.18     The Customer acknowledges that there are risks associated with viewing or sending of e-statements over open or third party networks or services, including the risks of e-statements being read, intercepted, altered, corrupted or misused by unauthorized persons, and malfunctioning, inadequacy, suspension or failure of software, equipment, system, network or service, and agrees to accept all risks in connection with the E-Statement Service.

5.19     The Bank will not be responsible for any act or omission of any communications service provider or system operator, or for any fee, charge or other amount charged by such communication service provider or system operator in connection with the Customer's use of the E-Statement Service.

5.20     The Bank will not be responsible for any loss or damage to the Customer's data, software, electronic equipment or other property resulting from the Customer's use of the E-Statement Service unless such loss or damage is directly and solely caused by the Bank's negligence or wilful misconduct.

5.21     Statements service may be provided subject to a charge at a rate determined by the Bank from time to time. The Bank may levy new charges and change any charge from time to time by not less than 30 days' notice to the Customer.

5.22     The Customer will authorise the Bank to debit the charges from the Settlement Account. The Customer will ensure that there will be sufficient funds/credit in the Settlement Account to cover all accrued charges.

5.23     The Customer is advised to enquire with the communications service provider whether any fee, charge or other amount will be charged for receiving e-statements. The Customer is solely responsible for all such charges.

5.24     The Bank may, without liability, suspend or terminate the E-Statement Service at its sole discretion forthwith upon giving notice to the Customer.

5.25     The Customer may suspend or terminate the E-Statement Service at any time by completing a form designated by the Bank or by such other means as accepted or required by the Bank from time to time.

6.         EFC Number, Password and Device

6.1     Subject always to the Bank's discretion, the Customer may be allowed to select a Password for a Designated Account or Service. Notwithstanding the foregoing, the Bank may in its absolute discretion issue the initial Password to the Customer instead of requesting the Customer to select the same.  Upon the issuance of such initial Password, a new Password must be re-selected by the Customer before the Customer may give any Instruction using the Password. The Bank may, where it considers appropriate, distribute the Security Device for Two-Factor Authentication to the Customer and the Customer or the relevant Authorized Signatory(ies) (when signed in accordance with the Agreed Signing Arrangement) shall acknowledge receipt of the Security Device upon receipt thereof. The Customer shall activate the Security Device online within 60 days after the date of distribution; otherwise the Security Device may be disabled automatically.

6.2     The Customer acknowledges that the Bank has no record of the Password selected or re-selected by the Customer.

6.3     The Customer undertakes to keep the EFC Number(s), the User Name(s), the Password(s), the Device (including any password or access control code related to its use) and (where applicable) the Device PIN secure and confidential.

6.4     Upon knowing or believing that there is a loss of any Password or Device (including (where applicable) any Security Code, password or access control code related to its use) or (where applicable) the Device PIN or any actual or possible unauthorized use or disclosure of a Password, a Device (including (where applicable) any Security Code, password or access control code related to its use), (where applicable) the Device PIN, an EFC Number or a User Name, the Customer shall notify the Bank as soon as reasonably practicable in writing, duly signed in accordance with the applicable Agreed Signing Arrangement, or by calling the Bank's designated hot-line for reporting such incidents as notified to the Customer from time to time.  

6.5     The Customer acknowledges that there are risks of the EFC Number(s), the User Name(s), the Password(s), (where applicable) the Device PIN or the Device (including (where applicable) any Security Code, password or access control code related to its use) being used by unauthorized persons or for unauthorized purposes. The Customer agrees to be responsible for all or any of the losses arising therefrom if the Customer has acted fraudulently or with gross negligence or has otherwise failed to perform his obligations under Clauses 6.3 and/or 6.4 above.

6.6     Once a Password has been duly assigned to or selected by the Customer, the Customer may change the Password in the manner as from time to time prescribed by the Bank. The Bank shall be entitled to rely and act on all Instructions given through the use of the relevant EFC Number, User Name, the Password, (where applicable) the Device PIN and/or the Device.

6.7     The Customer is responsible for the proper use of the Device, (where applicable) Device PIN, EFC Number and Password(s) and shall take reasonable steps to keep the Device (including (where applicable) any Security Code, password or access control code related to its use), (where applicable) Device PIN, EFC Number and Password(s) secure and confidential. The Customer shall not disclose (where applicable) the Security Code, (where applicable) Device PIN and Password(s) to any other persons other than the relevant Authorized User(s). The Customer undertakes to ensure that the Authorized User(s) will also comply with the aforesaid requirements as to the proper use of and the security and confidentiality of the Device (including (where applicable) any Security Code, password or access control code related to its use), (where applicable) Device PIN, EFC Number, User Name and Password(s) and that upon knowing or believing that there is a loss of the Device (including (where applicable) any Security Code, password or access control code related to its use) or (where applicable) the Device PIN or any Password or any actual or possible unauthorized use or disclosure of the Device (including (where applicable) any Security Code, password or access control code related to its use), (where applicable) Device PIN, the EFC Number, User Name or any Password, the Authorized User(s) shall notify the Customer immediately without delay or notify the Bank on behalf of the Customer in accordance with Clause 6.4 above.

6.8     In the event of loss or malfunctioning of any Device which was provided by the Bank, the Bank may, at its absolute discretion, provide replacement Device at the request of the Customer on such terms and conditions as it deems fit. The previous Device will automatically become invalid upon issuance of the replacement Device. If the Customer relocates such Device which was previously reported lost, he shall not use such Device unless and until he has obtained the prior approval of the Bank.

6.9     Where a Security Device is provided, the Customer acknowledges that the Security Device may be locked automatically if the Device PIN is entered incorrectly six consecutive times. In such event the Customer shall notify the Bank as soon as practicable and follow the prescribed procedures to unlock the Security Device and reset the Device PIN.

6.10     Where a Security Device is provided, the Customer acknowledges that Transactions made via [Electronic Finance Services] may be rejected due to incompatibility of the Security Device with the Bank's system. In such case the Security Device may need to be synchronized. In such event the Customer shall notify the Bank as soon as practicable and follow the prescribed procedures to synchronize the Security Device.

6.11    The Device which is provided by the Bank is and shall at all times be the property of the Bank and the Customer shall surrender such Device to the Bank immediately upon cancellation or termination of the Designated Account or Service for whatever reason. The Device must not be altered, tampered, disassembled or in any way copied or modified and must not be dealt with or exploited by the Customer in any way other than to give an Instruction. 

         7.      Service Charge

The Bank may charge fees for the Services at such standard rates as specified in any schedule of fees published by the Bank from time to time provided that the Bank may vary the amount of fees or their basis of calculation upon not less than 30 days' prior written notice (unless in the case where a variation is not within the Bank's control, upon reasonable notice) to the Customer by any one or more of the means mentioned in Clause 11 as reasonably determined by the Bank. Such schedule of fees will also be made available to the Customer at any time upon request. The Bank may debit the fees against any Account of the Customer with the Bank at any time without notice.

8.      Conclusive Evidence

The books and records of the Bank (including but not limited to any tape recording and electronic records) in respect of any Instruction or Transaction shall be binding and conclusive evidence (except for manifest error) against the Customer in all courts of law and for all purposes.  In this connection, a certificate signed by an authorized officer of the Bank as to any matter in respect of any Instruction or Transaction shall, save for manifest error, be conclusive and binding against the Customer.

9.      Designated Access Number and Channel

The access number(s), website(s) or any telecommunication channel(s), by or through which the Customer may give Instruction concerning any type of Transaction, will be designated by the Bank subject to change from time to time. Such change shall be effective on the date notified by the Bank by any one or more of the means mentioned in Clause 11 as reasonably determined by the Bank.

10.    Specific Terms and Conditions

10.1  The Electronic Finance Services are subject to the provisions of Part B and includes without limitation:

(a)  Transactions involving currency exchange, with the exception of Transactions effected in connection with foreign exchange margin trading, which are subject to the provisions of Schedule I of Part B;

(b)  foreign exchange margin trading which is subject to the provisions of Schedule II of Part B;
(c)  sale, purchase, transfer and custody of and other services in connection with Securities (other than Investment Products) which is subject to the provisions of Schedule III of Part B; and
(d)  outward remittance which is subject to the provisions of Schedule IV of Part B.
(e)  securities margin trading which is subject to the provisions of Schedule V of Part B.

10.2   The Investment Accounts Services are subject to the provisions of Part C.

10.3   The above specific terms and conditions to which any specific Instruction or Transaction is subject are without prejudice and in addition to the provisions in the Agreement and this Part A and the Rules, but in case of conflict, the above specific terms and conditions shall prevail in respect of the specific Transaction unless expressly provided to the otherwise (in particular, Clause 14.3).

11.     Notices and Announcements

11.1   All notices and other communications to the Customer in connection with any Services may be given by the Bank to the Customer orally or in writing.  Written notice to the Customer may be by letter, by way of advertisement in the newspaper or posting notices in banking halls or through such other means as the Bank deems fit.  When giving any notice or other communication to the Customer by letter in connection with any Designated Account, the Bank shall be entitled to dispatch the same to the last known Correspondence Address of the Customer, provided that if an Account Address is designated by the Customer in respect of a particular Designated Account, the Bank may, but is not obliged to, send notices or communications in connection with the relevant Designated Account to the designated Account Address (as opposed to the Correspondence Address).

11.2   Oral notice or communication shall be deemed to have been duly given to and received by the Customer when any officer or agent acting for the Bank verbally notifies, whether in person or through the telephone, the Customer or (as the case may be) any person comprising the Customer or any one of his Authorized Signatory(ies) or any person believed by such officer or agent in good faith to be the Customer or (as the case may be) any person comprising the Customer or any one of his Authorized Signatory(ies).

11.3   Subject to the provisions in Clause 11.5 below, written notice or communication shall be deemed to have been duly sent to and received by the Customer: (a) if delivered personally, at the time of such delivery or on leaving it at the address of the Customer last notified to the Bank; (b) if sent by letter postage prepaid, 48 hours after posting (for a Customer with a Correspondence Address or (as the case may be) an Account Address or (as the case may be) a Consolidated Statement Address outside HKSAR, 7 days after posting); (c) if sent by facsimile, at the time of despatch; (d) if sent by cable, 24 hours after despatch; and (e) if sent by any other telecommunication means, at the time of despatch.

11.4   Subject to the provisions in Clause 11.5 below, any written notice or communication from the Bank to the Customer shall be deemed duly sent to the Customer if it is sent to the Customer at the Correspondence Address, Account Address, facsimile number or e-mail address of the Customer stated in the Agreement and/or such other address, facsimile number or e-mail address from time to time notified by the Customer to the Bank in accordance with Clause 11.7 below.

11.5   All written notices and announcements by the Bank shall be deemed duly made and effectively given to the Customer (a) if published on newspaper, on the third Business Day after such publishing; and (b) if displayed at banking hall of the branch/sub-branches/offices as the Bank may in its absolute discretion determine, when it has been so displayed for 3 consecutive Business Days (except those in respect of the Investment Accounts Services, for 7 consecutive Business Days).

11.6   If the Customer shall consist of more than one person, any written notice or other written communication sent to the Correspondence Address, Account Address, facsimile number or e-mail address set out in the Agreement or to any one person comprising the Customer at the last known address, facsimile number or e-mail address of such person from time to time or to such other address, facsimile number or e-mail address as may have been notified in writing by the Customer to the Bank in accordance with Clause 11.7 below, shall be deemed effectively sent to the Customer.

11.7   Subject to the provisions in Clause 11.8 below, any notice or communication (excluding Instructions) from the Customer to the Bank shall be in writing.  Such notice or communication shall be addressed and delivered to the Bank at its principal place of business or such other branch/sub-branches/offices in HKSAR for the time being selected by the Bank and notified to the Customer or by such other means acceptable to the Bank and shall be deemed to have been received only upon actual receipt by the Bank.  Any notice or communication from the Customer relating to any Account or Service shall be signed as per the applicable Agreed Signing Arrangement, provided that if the notice or communication is relating to the change of the Correspondence Address, the Consolidated Statement Address, contact numbers or other details of the Customer,
(a)  the Bank may require the Customer to give and sign the notice or communication personally;
(b)  if the Customer consists of more than one person or is a partnership firm, the Bank may require any one of the persons comprising the Customer or (as the case may be) any one of the partners of the Customer to give and sign the notice or communication in favour of the Bank, and any such notice or communication so given and signed shall be binding upon the Customer absolutely;
(c)  if the Customer is a limited company or any other body or entity acceptable to the Bank, the Bank may require the Authorized Representative(s) of the Customer to give and sign in accordance with the Signing Instruction the notice or communication in favour of the Bank, and any such notice or communication so given and signed shall be binding upon the Customer absolutely.

11.8   The Bank may from time to time expressly agree (subject to any specific requirements from time to time prescribed by the Bank) any notice or communication from the Customer to the Bank (including those relating to the change of the Correspondence Address, the Consolidated Statement Address, contact numbers or other details of the Customer) to be given other than in accordance with Clause 11.7.  If the Customer chooses to give notice or communication by such other means to the Bank, the Bank is authorized to act on any notice or communication so given by any Authorized Person singly so long as it believes in good faith that such notice or communication has been given by an Authorized Person.

11.9   Items sent to the Customer or delivered to an authorized representative are supplied at the Customer's risk.

11.10 The Bank may, in its discretion and at the request of the Customer, provide hold mail service to the Customer subject to the following conditions:

(a)  by providing the hold mail service, the Bank will hold all and any items of mail (including, without limitation, all notices or communications from the Bank to the Customer and all information, annual reports, notices and other communications received by the Bank or its nominee in connection with the Securities of the Customer) until it has received Instructions to dispose of them;
(b)  the Customer acknowledges that the Bank's sole responsibility with respect to the hold mail service is to hold the items of mail until it has received Instructions to dispose of them, and then to dispose of them in accordance with such Instructions;
(c)  the Customer shall, on a timely basis, collect all the items subject to the hold mail service from the Bank or give Instructions to the Bank to dispose of them, failing which the Bank reserves the right to dispose of such items at its discretion; and
(d)  for all purposes including, without limitation, all Applicable Regulations and the Bank's terms and conditions from time to time (in connection with issues such as time limitations on the discovery and reporting of unauthorized transactions or errors), the items of mail subject to the hold mail service shall be deemed to have been made available to the Customer on the date the relevant items were received by the Bank or its nominee or (as the case may be) as would otherwise be sent by the Bank to the Customer and the Customer shall be deemed to be aware of the contents of such items which shall be binding on the Customer accordingly.
12.     Amendments

12.1   The provisions or schedules contained in the Agreement and/or the Terms and Conditions can be amended at any time in such manner and to such extent as the Bank may from time to time in its absolute discretion think fit.  Notice of such amendment shall be deemed duly and effectively given to the Customer if given in accordance with Clause 11 above.  Any amendments to such terms and conditions made by the Bank shall take effect and be binding on the Customer immediately upon notice to the Customer provided always that the amendments which affect the liabilities or obligations of the Customer shall not take effect until at least 30 days' prior written notice has been given to the Customer.

12.2   If the Customer would not accept any amendment to the Agreement and/or the Terms and Conditions as may be proposed by the Bank, the Customer may choose to terminate the relevant Designated Account or Service to which the amendment relates within a reasonable period.  In such event, the Bank shall, on application of the Customer, repay any annual or other periodic fee (if any), which can be separately distinguished, paid in advance in relation to such Designated Account or (as the case may be) Service on a pro rata basis unless the amount involved is minimal.

13.     Agents and Correspondents

13.1   The Bank may utilize the services of nominees, custodians, agents or correspondents of the Bank's own choice for the purpose of carrying out or giving effect to any Instruction and handling any Transaction for the Customer's account and at the Customer's risk.  In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any act, omission, negligence or default of any such person provided that the Bank has exercised such care in appointing such person as it would employ for its own business.

13.2   Subject to Applicable Regulations, the Customer agrees, consents and authorizes the Bank to accept and retain for its own account and benefit absolutely, all profits, rebate, brokerage, commission, fee, benefit or other advantage, if any, arising out of or in connection with the Bank's handling of the Transactions for the Customer.

14.     Suspension and Termination


14.1   When circumstances beyond the control of the Bank so warrant, the Bank may at any time without giving any notice to the Customer immediately suspend any one or more Service(s) or the operations of any one or more Designated Account(s) without giving any reason.

14.2   The Bank is entitled to cancel the use of the Device, (where applicable) Device PIN, EFC Number, User name and Password at any time when the Bank considers necessary or advisable to do so in its absolute discretion without notice and without giving any reason. The Bank may, upon not less than 30 days' prior written notice to the Customer, terminate any one or more of the Designated Accounts and/or Services with or without cause, without prejudice to the continuance of any one or more of the other Designated Accounts and/or Services which shall continue to be governed by the Agreement and the Terms and Conditions and/or applicable Rules.

14.3   Without prejudice to the generality of Clause 14.1 or 14.2, notwithstanding anything provided in the Agreement, the specific terms and conditions in Part B and Part C of these Terms and Conditions and any other agreement or contract relating to any Instruction or Transaction, the Bank may immediately terminate or suspend any one or more of the Services or the operations of any one or more of the Designated Accounts without any reason or notice if:

(a)  there is any change in any Applicable Regulations which prohibits or renders illegal the provision of any Designated Account or Service or any part thereof;

(b)  the Customer commits any breach or fails to comply with any of his obligations under the Agreement and the Terms and Conditions which, in the opinion of the Bank, amounts to a material default on the part of the Customer or there is a material adverse change in the circumstance relating to the Customer, including the Customer's legal status, assets, financial or business condition;
(c)  the Bank's books and records show a zero balance on the Customer's Designated Account(s) for a period of at least six continuous months or for such other period as the Bank shall prescribe from time to time;
(d)  there is or appears to be irregularity in the operations of any Designated Account or utilization of any Service; or the Bank suspects that the use of any Designated Account or any Service does not comply with Applicable Regulations;
(e)  conflicting instructions are received by the Bank in relation to any Designated Account or Service;
(f)   any proposed change to the Agreed Signing Arrangement for the time being of any Designated Account or Service is not acceptable to the Bank;
(g)  the Bank shall have received claims from third party or parties on the fund or other property or any part thereof in any Designated Account;
(h)  the Bank has determined in its absolute opinion that the Customer may possibly, for whatsoever reasons, have lost his legal capacity to continue to operate, or authorize any Authorized Signatory(ies) or Authorized Person to continue to operate, his Designated Account(s);
(i)   a petition for winding‑up or bankruptcy of the Customer has been presented to the court; or
(j)   any Designated Account or Service is being used or suspected to be used for illegal purpose including money laundering, drug trafficking, terrorist financing, bribery, corruption or other activities that are prohibited or are deemed illegal or unlawful by any Applicable Regulations or are restricted by any economic or trade sanctions imposed by any Authority.

14.4   The Customer may terminate any Designated Account or Service upon such prior written notice and in such manner as may be prescribed by the Bank from time to time and subject to payment of any handling fee which the Bank may at its discretion impose, provided always that the remaining Designated Accounts and Services shall continue to be governed by the Agreement and the Terms and Conditions and/or applicable Rules notwithstanding such termination.

14.5   For the avoidance of doubt, all liabilities and obligations of the Customer incurred or existing under the Agreement and/or the Terms and Conditions and/or any Designated Account or Service or Related Account or Settlement Account shall survive the termination of the Agreement, and/or any Designated Account, Service, Related Account or Settlement Account (as the case may be) for whatsoever cause.

14.6   Any suspension or termination of the Designated Account(s) or Service(s), and any withdrawal of cash or property, whether or not following such suspension or termination, shall be without prejudice to the right of the Bank to settle any Transactions entered into, or any liability incurred by or on behalf of, the Customer pursuant to the Agreement and the Terms and Conditions, prior to such suspension or termination.  Upon such suspension or termination, the Bank may cancel all or any unexecuted Instructions at its discretion.

15.     Liability of the Bank

15.1   In the absence of wilful misconduct or negligence by the Bank, the Bank shall have no responsibility whatsoever for any loss or damage suffered by the Customer as a result of or arising from:     

(a)  the cancellation of all or any Account or (as the case may be) any Service; and/or

(b)  the withdrawal or suspension of any transaction of the Customer or for any failure or delay to effect or execute any instruction or order from the Customer where it is attributable, either directly or indirectly, to any circumstances or events outside the control of the Bank or it would, or might in the Bank’s sole opinion, constitute a breach or violation of any Applicable Regulations or any economic or trade sanctions imposed by any Authority; and/or  

(c)  the mis-understanding or mis-interpretation of any Instructions;

(d)  any mechanical failure, malfunction, interruption or inadequacy of the Bank's telephone system, computer system or installation in connection with any Designated Account or Service, any delay, error or omission in transmission or any other cause beyond the reasonable control of the Bank; and
(e)  the acts, defaults, omissions or negligence of the Bank's nominees, custodians, agents or correspondents (other than the Bank's employees acting in the course of their employment).
15.2   Unless the Customer acts fraudulently or with gross negligence or otherwise fails to perform his obligations under Clauses 6.3 and/or 6.4 above, the Customer shall not be responsible for any direct loss suffered by him as a result of unauthorized Transactions effected by any Instructions , and not be liable for any unauthorized Transactions arising from any forgery or fraud of the Bank or any of its officers or employees, or arising from any forgery or fraud of any third party including any employee, agent or servant of the Customer and in relation to which the Bank has failed to exercise reasonable care and skill.

16.   Indemnity from Customer

In the absence of wilful misconduct or negligence by the Bank, the Customer undertakes to hold the Bank harmless and indemnify the Bank fully against all actions, proceedings, claims, liabilities, damages, and all reasonable costs and expenses (including, without limitation, legal costs) reasonably incurred by the Bank arising out of (a) any breach or default on the part of the Customer in the discharge or performance of its undertakings and obligations in or under the Agreement and/or the Terms and Conditions; or (b) any representation, warranty or statement by the Customer in the Agreement and/or the Terms and Conditions or any other document (including self-certification) delivered by or on behalf of Customer is or proves to have been incorrect or misleading when made or deemed to be made; or (c) any Transactions or contracts or services entered into and/or provided by the Bank under any Service and/or otherwise the provision of any of the Services to the Customer. This indemnity shall survive the termination of any Designated Account or Service.

17.     Set-off and Lien

17.1   In addition to any general lien, set‑off or similar right to which the Bank may be entitled by law, the Bank may at any time when any sum is due but unpaid by the Customer under the Terms and Conditions or under any Transaction, or when the Customer has breached any provisions under the Agreement or hereunder, without prior notice to the Customer:

(a)  apply any credit balance (whether or not then due) in any currency to which the Customer is at any time beneficially entitled on any account (whether current, saving, time, call or deposit accounts and whether alone or jointly with other person(s)) at any branch/sub-branches/offices of the Bank wherever situate; and/or
(b)  set-off any of liabilities of the Bank to the Customer or any of them including but not limited to such of the liability (whether actual or contingent) arising from any Transaction,
in or towards satisfaction of all or any liabilities of the Customer or any of them to the Bank arising out of any Instruction or Transaction, whether in the Customer's own name or that of the Customer and other person(s), including but not limited to such of the liability (whether actual or contingent) under any outstanding contract in respect of Securities or foreign exchange, and for such purpose, the Bank may convert all or any part of such credit balance or liability to such other currencies at the applicable rate of exchange quoted and determined by the Bank as may be necessary to effect such application or set-off.
17.2   If any sum is due but unpaid under the Terms and Conditions or under any Transaction, the Bank may retain all or any securities, valuables or any other property whatever and wherever situate which may be deposited with or otherwise held by the Bank for or in the name of the Customer whether for safe custody or otherwise and to sell and/or dispose of the same or any part thereof at such price and on such terms as the Bank shall reasonably determine whether by public auction, private treaty or tender without incurring any liability to the Customer for any loss which may arise from such sale. The Bank may engage such agent and broker for any such sale and apply the net proceeds thereof in or towards settlement of the liabilities of the Customer to the Bank under the Terms and Conditions or under any Transaction.

17.3   The Customer hereby agrees and confirms that if at any time and for any reason the Bank determines that it shall be required by any Applicable Regulations to make any deduction or withholding from any payments payable to the Customer by the Bank (whether as principal or as agent for a third party or otherwise), the Bank shall be entitled to make such deduction or withholding without consent or further reference to the Customer. The Bank shall not be required to increase any payment in respect of which it makes such a deduction or withholding or otherwise compensate the Customer of the payment for that deduction or withholding or liable for any losses that the Customer may incur by reason of such withholding or deduction. The Bank’s determination of the applicability of such withholding or deduction requirement under the Applicable Regulations shall be binding on the Customer and pending the Bank’s determination, the Bank has the absolute discretion to deposit any such monies into a sundry or other account and/or retain such monies in such manner as the Bank deems appropriate.

18.     Authorized Signatory(ies), Agreed Signing Arrangement, Authorized Person and Signature Number


18.1   Subject to Clause 11.8, the Authorized Signatory(ies) in relation to a Designated Account (when they signed as per the relevant Agreed Signing Arrangement) shall have full authority on behalf of the Customer to deal with the Bank in respect of any matter whatsoever concerning or arising from the relevant Services or to give to the Bank any directions, orders or Instructions of whatever nature (in the form of standing Instruction or otherwise) relating thereto and/or enter into all types of agreements with the Bank in connection with the aforesaid matters, including but not limited to:

(a)  the closing of the relevant Designated Account or the termination of any of the Service(s) under the relevant Designated Account;
(b)  any change of Account Address (if applicable) of the relevant Designated Account;
(c)  any change of any Related Account or Settlement Account for the relevant Designated Account; and
(d)  if signed as per the relevant Agreed Signing Arrangement of the highest level of authorization, selecting the User Name and collecting, selecting or re-selecting the relevant Password;

         But excluding:

(i)   the application for setting up of any new Designated Account(s),

(ii)   any change of the Authorized Signatory(ies) and/or his/her/their specimen signature(s) or the relevant Agreed Signing Arrangement; and
(iii)  any change of the Correspondence Address, the Consolidated Statement Address or contact numbers or other details of the Customer or any change of the Authorized Representative(s) and/or his/her/their specimen signature(s) or the relevant Signing Instruction.
18.2   Unless otherwise agreed to by the Bank or save as otherwise provided in the Agreement, any change in the Authorized Signatory(ies) and/or his/her/their specimen signature(s) and/or an Agreed Signing Arrangement and/or application for any opening of a new Designated Account shall only be effected as and when:
(a)  the Bank shall have received (i) in the case where the Customer is an individual (including a sole proprietorship) or the Customer consists of several individuals (including a partnership), written instructions from the Customer or, as the case may be, all the individuals comprising the Customer; (ii) in the case where the Customer is a limited company, a certified true extract of the board resolution of the Customer; and (iii) in any other case, such duly authorized written instruction from the Customer in form and substance satisfactory to the Bank, requesting the Bank for such change or application; AND
(b)  the Bank shall agree to give effect to such change or application.
18.3   Unless otherwise agreed between the Bank and the Customer in writing, any one of the Authorized Signatory(ies) of a Designated Account having the highest level of authorization should be an Authorized Person for that Designated Account. The Customer hereby acknowledges that he has duly and fully considered the risks in making such appointment including that such Authorized Signatory has powers set out in Clauses 11.8 and 18.4 of Part A.

18.4  Notwithstanding the Agreed Signing Arrangement specified by the Customer in connection with a Designated Account, if the Customer chooses to give Instructions to effect Transactions (subject to the Bank's agreement) by telephone, electronic mail or other means where the signature of the Customer is not provided, the Bank is authorized to execute Instructions given through such means by any Authorized Person singly so long as it believes in good faith that such Instructions have been given by an Authorized Person. The Bank will in the ordinary case verify the Password before accepting such Instructions. For the avoidance of doubt, the Agreed Signing Arrangement shall continue to apply where Instructions are given by other means.

18.5   The Bank may at its absolute discretion assign one or more Signature Numbers to the Customer.  Each Signature Number shall represent an agreed set of Authorized Signatories and the relevant Agreed Signing Arrangement.  Such set of Authorized Signatories and Agreed Signing Arrangement, subject to the absolute discretion of the Bank, may be designated specifically by the Customer or may be designated by the Customer by reference to the set of Authorized Signatories and the relevant Agreed Signing Arrangement of any existing Account or Service.  In the latter case, the Customer shall be deemed to have applied the relevant Signature Number to such existing Account or Service.

18.6   The Customer may, subject to the absolute discretion of the Bank, designate the Authorized Signatories and the Agreed Signing Arrangement to any Designated Account by applying a Signature Number of the Customer to such Designated Account.  For the avoidance of doubt, in such event, the Authorized Signatory(ies) and the Agreed Signing Arrangement applicable to the relevant Designated Account shall be such set of Authorized Signatory(ies) and Agreed Signing Arrangement as represented by the relevant Signature Number.

18.7   Any effective change in the Authorized Signatories, their specimen signatures, or the relevant Agreed Signing Arrangement under a Signature Number shall apply to all Designated Accounts using the same Signature Number.  For the avoidance of doubt, all other Designated Accounts using other Signature Numbers shall not be affected thereby, and the closure or termination of any Designated Account using a Signature Number shall not affect the other Designated Accounts using the same Signature Number.

18.8   Notwithstanding that more than one Designated Account may, subject to the absolute discretion of the Bank, be established under the same document or agreement, the Customer may apply a different Signature Number to each such Designated Account.

18.9   In case the set of Authorized Signatory(ies) and the relevant Agreed Signing Arrangement of a Designated Account (the "Relevant Account") are described as "the same as" those of  another Account or Service (the "Reference Account"), if there is any change in the Authorized Signatory(ies) and/or his/her/their specimen signature(s) and/or the relevant Agreed Signing Arrangement of the Reference Account, the corresponding Authorized Signatory(ies), his/her/their specimen signature(s) and/or the relevant Agreed Signing Arrangement of the Relevant Account shall be deemed to change accordingly without the necessity of any reference to the Customer, provided that the closure of the Reference Account shall not affect the continuity or effectiveness of the Authorized Signatory(ies) and the Agreed Signing Arrangement of the Relevant Account.

18.10 In respect of any of the Designated Accounts, with the exception of selection of the User Name and collection, selection or re-selection of the Password which requires the highest level of authorization of the Agreed Signing Arrangement, if the Agreed Signing Arrangement thereof shall consist of two or more levels of authorization, all and any of such levels of authorization shall be equally effective as the Agreed Signing Arrangement of the relevant Designated Account.

18.11 Notwithstanding that the Designated Account(s) may, subject to the absolute discretion of the Bank, be established simultaneously under one single document or agreement, the Authorized Signatory(ies) and the relevant Agreed Signing Arrangement of each and every Designated Account will be treated as independent by the Bank so that any change in the Authorized Signatory(ies) and/or the Agreed Signing Arrangement for any Designated Account will not affect the others.

18.12 The Customer shall, with the Bank’s agreement, designate a savings account or a current account as the Settlement Account for all the Customer’s Designated Accounts for the purposes of the Electronic Finance Services. The Authorized Signatory(ies), specimen signature(s) and the Agreed Signing Arrangement of such Settlement Account shall apply to all such Designated Accounts, and Clause 18.9 shall apply as if such Settlement Account is the Reference Account and such Designated Accounts are the Relevant Accounts. Unless the Bank otherwise agrees, all the Customer’s Designated Accounts for the purposes of the Electronic Finance Services will have a single EFC Number.

18.13 The Customer agrees to ratify at all times all acts, deeds, directions, orders or Instructions given by any or all of the Authorized Signatory(ies) in accordance with Clause 18.1 above and acknowledges that the same shall at all times be binding on the Customer.

18.14 The Authorized Signatory(ies) shall have continuous authority and powers to deal with the Bank in accordance with Clause 18.1 above unless and until the Bank shall have actually received written notice to the contrary in the prescribed form and duly signed by the Customer in accordance with Clause 18.2 above and the Bank shall have notified the Customer of the Bank's acceptance of, or have actually accepted and acted upon, such contrary notice.

18.15 Notwithstanding anything contained herein, the Customer agrees and acknowledges that the Bank shall have the absolute right at any time, without prior notice or giving any reason therefor, not to accept any order, request or Instruction from all or any of the Authorized Signatory(ies).

18.16 In the event of the death of the Customer or any one or more of the Customer (in case more than one), any payment, act, thing or matter made or done by the Bank pursuant to the request instruction or direction of the Authorized Signatory(ies) or any of them after such death but prior to the actual receipt of notice in writing thereof by the Bank shall be absolutely and conclusively binding on the Customer, the respective estate(s) and personal representative(s) and any party / parties claiming through or under the Customer or any one or more of them.
 

19.    Governing Law and Jurisdiction

The Agreement and the Terms and Conditions and all Transactions shall be governed by and interpreted in accordance with HKSAR law and the courts of HKSAR shall have non-exclusive jurisdiction to determine, enforce and adjudicate all disputes and claims arising therefrom and in connection therewith.

20.    Language

The Chinese version of the Terms and Conditions is for reference only. If there is any conflict between the English and Chinese versions, the English version shall prevail.
 

20A. Investment

20A.1 If the Bank solicits the sale of or recommends any financial product to the Customer, the financial product must be reasonably suitable for the Customer having regard to the Customer’s financial situation, investment experience and investment objectives. No other provision of these Terms and Conditions, other specific terms and conditions applicable to Services provided by the Bank to the Customer, or any other document the Bank may ask the Customer to sign and no statement the Bank may ask the Customer to make derogates from this Clause 20A.1.

 Note: “financial product” means any securities, futures contracts or leveraged foreign exchange contracts as defined under the Securities and Futures Ordinance. Regarding “leveraged foreign exchange contracts”, it is only applicable to those traded by persons licensed for Type 3 regulated activity.

 This Clause 20A.1 does not apply in respect of Customers that are Institutional Professional Investors or Exempt Corporate Professional Investors.

20A.2 For the purposes of Clause 20A.1, the Customer understands that:-
(a) the Bank will only take into account circumstances relating to the Customer which the Customer has disclosed to the Bank or that the Bank should reasonably be aware of;
(b) the Bank will not take into account the Customer’s investments which are held by the Customer outside the Bank (unless the Customer has specifically disclosed such investments to the Bank);
(c) the Bank makes no representation and does not guarantee the outcome or performance of any investment made by the Customer;
(d) if the Customer does not provide the Bank with the Customer’s up-to-date financial situation, investment experience and investment objectives, the Bank’s ability to assess the suitability of any solicitation or recommendation may be affected;
(e) the Bank may make available to the Customer general information or general explanations about investments and investment strategies (including market views, research and/or investment ideas which are widely available to customers of the Bank) whether prepared by the Bank or others. Unless expressly acknowledged by the Bank in writing, none of this information is personalized or in any way tailored to reflect the Customer’s particular financial situation, investment experience or investment objectives;
(f) where the Customer instructs the Bank to enter into a Transaction, the Customer does so on the basis that: (i) the Customer has carefully considered any information provided by the Bank (whether tailor made or not) in connection with any Transaction (including explanations of the risks and features of Transactions); (ii) the Customer is satisfied with the information provided by the Bank (if any) in connection with the Transaction (including explanations of its risks and features); and (iii) the Customer had the opportunity to ask questions and seek independent advice;
(g) the Customer must promptly notify the Bank if the Customer does not understand any information provided by the Bank (whether tailor made or not);
(h) subject to and save as otherwise required by Applicable Regulations, the Bank does not accept any responsibility for the performance or monitoring of the Customer’s investments unless agreed with the Bank in writing;
(i) subject to and save as otherwise required by Applicable Regulations, the Bank will not advise the Customer on an ongoing basis on the making and/or disposal of investments in the Customer’s accounts unless agreed with the Bank in writing; and
(j) subject to and save as otherwise required by Applicable Regulations, the Customer is responsible for being fully apprised of market prices and conditions and the effect of the same on any investments held by the Customer unless agreed with the Bank in writing.


20A.3 Where the Bank does not make a solicitation or a recommendation to the Customer or advise the Customer in respect of any investment product, the following clauses shall apply, unless otherwise agreed with the Bank or to the extent permitted under Applicable Regulations:

(a) the Customer acknowledges that the Bank does not, and its employees, agents or correspondents do not on its behalf, advise the Customer on such product; and

(b) in respect of transactions under Schedule III of these Terms and Conditions, the Customer confirms that the Customer has not relied and will not at any time rely on the Bank to provide the Customer with any advice.


21.    Miscellaneous


21.1   If at any time any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby.

21.2   None of the Terms and Conditions nor any rights, powers or remedies of the Bank hereunder shall in any respect be waived, altered, modified or amended unless such waiver, alteration, modification or amendment be reduced to writing and signed by one of the authorized officers of the Bank. No delay or failure by the Bank to demand, exercise or enforce, or any single or partial exercise or enforcement of, any rights, powers or remedies hereunder shall constitute a waiver or preclude any other or further exercise or enforcement of such rights, powers and remedies.  No time or indulgence granted to the Customer or any of them or any third party shall release or discharge any of the liabilities of the Customer under the Terms and Conditions. The rights, powers and remedies conferred on the Bank by the Terms and Conditions are cumulative and are not exclusive of any other rights, powers and remedies available under law or other arrangements.

21.3   All sums payable by the Customer under the Terms and Conditions shall be paid to the Bank direct in full, free and clear of any present or future taxes, levies, imposts, duties, charges, fees or withholding and without set off or counterclaim or any restriction, condition or deduction whatsoever. If the Customer is required by any Applicable Regulations to make any deduction or withholding, the Customer shall promptly pay to the Bank such additional amount as will result in the net amount received by the Bank being equal to the full amount which would have been receivable had there been no deduction or withholding. Any additional amount paid under this Clause 21.3 shall not be treated as interest but as agreed compensation.

21.4   The Terms and Conditions shall be binding on the heirs, legal or personal representatives, successors or assigns of the Customer.

21.5   If the Customer consists of or the Agreement is signed or intended to be signed by two or more persons:

(a)  the liabilities of the Customer hereunder shall be joint and several and the provisions of the Terms and Conditions shall be construed accordingly;

(b)  the Bank may settle or compromise (including but not limited to acceptance of instalment payment or acceptance of partial payment for release or discharge of full liability) with any one or more of such persons constituting the Customer without affecting releasing or discharging the liabilities of the others;

(c)  unless the Bank has actually received written notice of the death or legal disability (including but not limited to bankruptcy) of any person, the Bank shall be entitled to treat each person as having full power to operate the Designated Account(s) and enter into any Transactions;

(d)  all Instructions and Transactions in the event of the death of any one or more of the persons constituting the Customer shall be subject to any claim or objection on the part of the Estate Duty Commissioner or any other relevant authority and shall be without prejudice to any right which the Bank may have arising out of any lien, charge, pledge, set-off, counterclaim or otherwise whatsoever or any step or legal proceedings which the Bank may in its absolute discretion deem desirable to take in view of any claim by any person other than the survivors of them or the executors or administrators of the deceased; and

(e)  subject to Clause 21.5(d), the Bank shall, upon notice of the death or legal disability (including but not limited to the presentation of a bankruptcy petition) of any one of the persons constituting the Customer, be entitled to refuse to accept or execute any Instruction and hold all credit balances in all the Accounts and all moneys due by the Bank to the Customer under all the Transactions (in the case of death only, to the order of the survivor or the executor or administrator of the last survivor of the Customer and any payment by the Bank as above shall be an absolute, full and conclusive discharge to the Bank as against the Customer (including the deceased and his/her estate and successor) provided the Bank may require the production of documentary proof of the death and/or evidence of estate duty clearance or exemption and/or the relevant legal grant to the estate of the deceased and/or any other evidence as the Bank may reasonably require).

21.6   If the Customer is a firm (whether sole proprietorship or partnership firm), the following provisions shall apply in addition to Clause 21.5:

(a)  the Customer and the proprietor/partners and persons carrying on business in the name of the firm concerned now or at any time hereafter shall be jointly and severally liable under the Terms and Conditions;

(b)  the Customer shall advise the Bank of any change in the constitution or membership of the firm and unless expressly released, the Customer and all persons signing the Agreement as the proprietor or partners of the Customer shall continue to be liable hereunder irrespective of any such change; and

(c)  unless the Bank has actually received written notice from the Customer of any change in the membership or constitution of the firm whether as a result of death or otherwise, the Bank shall be entitled to treat the remaining partner(s) or persons carrying on business in the name of the firm as having full power to continue the business of the firm and to operate the Designated Account(s) and enter into any Transactions as if there had been no such change. If the Bank receives notice of dissolution of the firm, the Bank may (but is not obliged to) suspend any further dealings in respect of the Designated Account(s) and Service(s) and place any money payable by the Bank to the firm in an interest free suspense account pending completion of the dissolution process.

21.7   The Customer hereby warrants and represents that:

(a)  in the case of an individual, he is of full age and capacity, and in the case of a sole proprietorship, partnership or limited company, it is duly organized and validly existing under the law of the place of its establishment or incorporation and has power to enter into the Agreement and conduct all transactions and activities contemplated by the Terms and Conditions, and in the case of a body corporate or an unincorporated body of persons (other than a sole proprietorship, partnership or limited company), it is duly organized and validly registered and existing under the law of the place of its establishment and has power to enter into the Agreement and conduct all transactions and activities contemplated by the Terms and Conditions subject to any restriction on investment notified to the Bank in writing, and in each case, the Agreement and all transactions and activities conducted by the Customer under the Terms and Conditions are and will constitute legally binding and enforceable obligations of the Customer;

(b)  all acts, conditions, things required to be done, performed and observed in order that the Terms and Conditions shall constitute the legal, valid and binding obligations of the Customer enforceable in accordance with its terms have been done, performed and observed in strict compliance with all Applicable Regulations and (if applicable) the Memorandum and Articles of Association or other constitutional documents of the Customer;

(c)  all the information provided to the Bank to facilitate the provision and/or maintenance of the Services is true, complete and up-to-date and the Customer shall notify the Bank as soon as reasonably practicable of any change in such information, and the Bank is entitled to rely on the latest information recorded with it as true, complete and up-to-date;

(d)  save as otherwise notified to the Bank in writing and subject to any rights or interests that the Bank may have over such Securities and funds, all Securities and funds of the Customer are and will be in the sole beneficial ownership of the Customer free from any encumbrance or adverse interest and the Customer acts as principal in respect of all Instructions and Transactions; and

(e) save as otherwise notified to the Bank in writing, the Customer shall at all times enter into Transactions relating to Securities and derivatives written over such Securities as principal, and shall be the person who is ultimately responsible for originating any Instruction for such Transactions and ultimately benefits from and bears the risk of these Transactions. The Customer further agrees that the Bank shall be entitled to refuse to accept or execute any Instruction for any such Transaction unless the Bank shall be satisfied that the representations and warranties given by the Customer under this Sub-paragraph (e) are true and genuine in all respects.
 If the Customer is not the ultimate beneficiary or the person ultimately responsible for originating an Instruction, the Customer agrees to comply with the following:
(i) the Customer agrees to provide full details (including the identity, address and contact details) of the ultimate beneficiary and of the person ultimately responsible for originating the relevant Instructions directly to the HKSAR exchanges, the Securities and Futures Commission and/or the Hong Kong Monetary Authority (collectively, the “regulators”) within 2 business days of a request by any regulator;

(ii) if the Customer effects the dealing for a collective investment scheme, discretionary account or discretionary trust, the Customer, upon request by the Bank, agrees to inform the regulator(s) of the full details (including the identity, address and contact details) of the scheme, account or trust and, if applicable, the full details (including the identity, address, occupation and contact details) of the person who, on behalf of the scheme, account or trust, instructed the Customer to effect the dealing or, as applicable, who has or have given instructions resulting in such instruction being given;

(iii) if the Customer effects the dealing for a collective investment scheme, discretionary account or discretionary trust, the Customer, as soon as practicable but in any event within the time limit specified by the Bank, agrees to inform the Bank when the Customer’s discretion to invest on behalf of the scheme, account or trust has been overridden. In the case where the Customer’s investment discretion has been overridden, the Customer shall, within the time limit specified by the Bank (which request shall include the contact details of the relevant regulator(s)), inform the regulator(s) of the full details (including the identity, address, occupation and contact details) of the person(s) who has or have given the instruction in relation to the dealing or, as applicable, who has or have given any instructions resulting in such instruction being given;

(iv) if the Customer is aware that the Customer’s client is acting as intermediary for its underlying client(s), and the Customer does not know the full details (including the identity, address, occupation and contact details) of the underlying client(s) for whom the dealing was effected or the person originating the instruction, the Customer undertakes and confirms that:-
(1) the Customer has arrangements in place with the Customer’s client which entitle the Customer to obtain such information from the Customer’s client immediately upon request (and in any event within the required time limit) or procure that it be so obtained; and
(2) the Customer will, upon request of the Bank in relation to any dealing, within the time limit specified by the Bank, promptly request such information from the Customer’s client on whose instructions the dealing was effected, and provide the information to the regulator(s) as received from the Customer’s client or procure that it be so provided;

(v) the Customer's agreement in this Sub-paragraph (e) above to provide information will survive even after termination of the Agreement or any Account; and

(vi) if a beneficiary or a person originating an Instruction is located in a foreign country or place, the Customer confirms that the terms set out in this Sub-paragraph (e) are binding under the relevant foreign law.
 
21.8   The Customer shall not assign any or all of its rights and interest under the Terms and Conditions or any Transactions without the prior written consent of the Bank. Such consent may be given or withheld by the Bank at its sole discretion without giving any reason therefor.

21.9   The Customer expressly acknowledges that:
(a)  the foreign exchange markets, and the Securities markets are all volatile and there may be fluctuation in price resulting in loss, and all transactions shall be deemed to have entered into by the Customer upon the Customer's own judgment and deliberation and at the own risk of the Customer; and
(b)  the Bank shall not be under any liability whatsoever or howsoever arising in respect of any private dealing, contract, transaction or relationship between the Customer and any of the employees, agents or correspondents of the Bank. For the avoidance of doubt, private dealings between the Customer and employees, agents or correspondents of the Bank are not permitted by the Bank.


21.10 The Bank shall be entitled to employ debt collecting agent(s) to collect any sum due but unpaid by the Customer hereunder. The Customer is hereby warned that the Customer shall indemnify and keep the Bank indemnified on a full indemnity basis against all reasonable costs and expenses which the Bank may reasonably incur in employing debt collecting agent(s).

21.11 (a)  The Customer undertakes and acknowledges that the Customer shall at all times notify the Bank in writing and signed in accordance with the Agreed Signing Arrangement of any change of the Customer's particulars (where the Customer shall consist of any individual, the Customer's personal particulars), name, address(es), telephone number(s), facsimile number(s) and/or email address(es).

          (b)  The Customer (whether an individual, a corporation or otherwise) acknowledges that he has noted and will note the content of the notice to customers relating to the Personal Data (Privacy) Ordinance issued by the Bank (the "Notice", which expression shall include the same as amended from time to time) and on display in the Bank's banking halls or otherwise made available to the Customer and agrees that it is necessary to supply the Bank with data in connection with the opening or continuation of Accounts and the establishment or continuation of banking facilities or provision of banking and related services (including but not limited to the provision of the Services). The Customer further authorizes the Bank and its Affiliates to use the Customer's data for the purposes set out in the Notice and notes that data held by the Bank and its Affiliates will be kept confidential but permit the Bank and its Affiliates to provide such information to the persons listed in the Notice or any person(s) (including, debt collecting agent(s) and credit reference agency(ies)) for the purposes set out in the Notice or in compliance with any Applicable Regulations binding on the Bank and its Affiliates. The Bank may, at its absolute discretion, provide and divulge information in respect of the Customer or in connection with any Transaction to any Authoritiy or any person pursuant to Applicable Regulations in any jurisdiction or pursuant to any agreement or arrangement that the Bank or any of its Affiliates have or may have in the future with any Authority, whether local or foreign governmental, regulatory, tax, law enforcement or other authorities, or self-regulatory or industry bodies or associations of financial services providers, whether imposed by law or assumed by the Bank or any of its Affiliates for the protection of its financial, commercial, business or legitimate interests in or related to such jurisdiction. The Customer further authorizes the Bank to contact any of the Customer's employer(s), bank(s), referee(s) or any other sources for the purpose of obtaining or exchanging any information and to compare the information provided by the Customer with other information collected by the Bank for checking purposes. The Bank is entitled to use the result of such comparison to take any action which may be adverse to the Customer's interest. The Customer also consents to the Customer's data being transferred to another jurisdiction outside HKSAR.  The Customer acknowledges that a business support centre ("centre") operated and managed by the Bank's wholly owned subsidiary (incorporated in China) has been established in China to provide service support to the Bank.  The processes performed by the centre are mainly labour intensive or standard, less complex data processing activities and the Bank will remain fully responsible for the integrity of processes as well as the security and confidentiality of customers' data.  The staff of the centre responsible for providing support services will give strict undertaking to the Bank to ensure that all customers' data will be kept confidential.   No customers' data will be disclosed to third parties, except as required by Applicable Regulations, or to such persons and used for such purposes as set out in the Terms and Conditions.  The operation of all Account(s) of the Customer and all Service(s) to the Customer will remain unchanged.

21.12 The Customer confirms and warrants that, in respect of any information provided to the Bank that relates to a third party (including any shareholder, director, associate or partner of the Customer), the Customer has obtained the consent of such third party to the provision of such information to the Bank for the purposes set out in this Clause 21 and for disclosure to such persons as stipulated in this Clause 21.

21.13 The Bank will notify the Customer in the event of any material change to: (i) the name or address of the Bank, the licensing or registration status of the Bank with the Securities and Futures Commission or the Hong Kong Monetary Authority or the Bank’s CE number; (ii) the nature of Services provided by the Bank to the Customer; (iii) the remuneration (or the basis for payment) that is to be paid by the Customer to the Bank (such as commission, brokerage or any other fees or charges); or (iv) if margin or short selling facilities are provided to the Customer, the details of the margin requirements, interest charges, margin calls or the circumstances under which a Customer’s positions may be closed without the Customer’s consent.

21.14 Where the Bank provides the Customer with Services in relation to derivative products: (i) the Bank will, upon the Customer’s request, provide to the Customer the product specifications and any prospectus or other offering document covering such derivative products; and (ii) the Bank will provide, if applicable, a full explanation of the margin procedures and the circumstances under which a Customer’s positions may be closed without the Customer’s consent.

21.15 Clauses 21.13 and 21.14 do not apply in respect of Customers that are Institutional Professional Investors or Exempt Corporate Professional Investors. While the Bank may provide such information to Customers that are Institutional Professional Investors or Exempt Corporate Professional Investors, there is no obligation on the Bank to do so.

21.16 When the Bank provides any quotation whether in writing or orally, the Bank shall have the right to quote the figures to the number of places after the decimal as the Bank may determine from time to time, who may have regard to prevailing market practice in relation to the currency concerned.

21.17 Time shall be of the essence as regards any obligation of the Customer arising from or in connection with the Terms and Conditions.

21.18 Rights of Third Parties
A person who is not a party to these Terms and Conditions has no right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623, the Laws of Hong Kong) to enforce or to enjoy the benefit of any term under these Terms and Conditions. No person other than the Customer and the Bank will have any right to enforce the provisions of these Terms and Conditions

PART B: ELECTRONIC FINANCE SERVICES

SCHEDULE I

Transactions involving currency exchange, with the exception of Transactions effected in connection with foreign exchange margin trading, are subject to the following terms and conditions:

1.      Currency exchange transactions shall be for value the day on which the Instruction concerned is executed by the Bank.
2.      The Bank may, at any time without giving any prior notice, suspend or refuse quoting exchange rate and effecting exchange transaction for any currency.
3.      Exchange rate quoted by the Bank in the course of taking Instruction from the Customer is for reference only and shall not be binding on the Bank until and unless re-confirmed by the Bank and the re-confirmed rate, once accepted by the Customer, shall be binding on the Customer.
4.      In the case of any forward currency exchange transaction accepted by the Bank, the Customer shall, on the value date, pay to the Bank the amount due by the Customer under the transaction concerned in the currency agreed and in freely disposable immediately available funds and the Bank may (i) at any time as from the acceptance of the order concerned, hold or retain any funds in any of the Accounts or deposits of the Customer with the Bank in such amount as is sufficient to meet the Customer's obligation under the forward currency exchange transaction and (ii) without notice to the Customer, apply such funds for the discharge of the Customer's obligation on the value date.
5.      For a Transaction involving currency exchange pursuant to an Instruction (save for foreign exchange margin trading which is governed by Schedule II of this Part B below), an Advice will be provided to the Customer in accordance with Clause 5 of Part A and all provisions of Clause 5 of Part A shall apply to such Advice.

 

SCHEDULE II

Transactions effected in connection with foreign exchange margin trading are subject to the following terms and conditions:

1.      Definition and Interpretation

1.1     In this Schedule II, except where the context otherwise requires:

"Account Equity" has the meaning ascribed thereto in Paragraph 4.2(a).

"Balancing Interest" has the meaning ascribed thereto in Paragraph 9.1.

"Bank Quotation" means the prevailing market spot exchange rate of exchange for a pair of FX determined by the Bank at the relevant time on the basis of or with reference to the information or quotations obtained by the Bank from its internal department or section carrying out the treasury function or received by the Bank from such outside information agency or agencies as the Bank may in its absolute discretion select from time to time.

"Base FX" means the FX determined by the Bank to be so in a Non-HKD-Based Contract.

"Bid Interest Rate" means, in respect of a particular FX, the rate of interest at which the Bank is prepared to pay for borrowing such FX from a third party, such rate to be determined by the Bank absolutely on a daily basis with reference to the prevailing market condition.

"Cash Margin" means the balances (either in credit or in debit and in currency or currencies acceptable to the Bank) kept by the Bank as "Cash Margin" on the FX Margin Trading Account upon and subject to the terms of this Schedule II.

"Confirmation" means the statement of account, advice, contract note, or other similar statement of account or other confirmation in writing for the purpose of Paragraph 5.8(a) or (b), as the case may be, containing such particulars as the Bank may determine.

"Contract Documents" means all documents prescribed by the Bank from time to time to be given, signed and/or confirmed by the parties or any of them for the entering into of FX Transactions and/or giving of orders or instructions therefor by the Customer and/or confirming FX Transactions or orders or instructions relating thereto, including but not limited to the Confirmation.

"Counter FX Contract" of two squared FX Contract has the meaning ascribed thereto in Paragraph 8.2(a).

"Cross FX" means the FX determined by the Bank to be so in a Non-HKD-Based Contract.

"Delivery Party" has the meaning ascribed thereto in Paragraph 8.2(e).

"Designated Lines" means such of the telephone numbers of the Bank at which orders or Instructions relating to FX Transactions from the Customer should be made which are notified by the Bank to the Customer from time to time or announced by the Bank in accordance with Clause 11.

"Effective Period" has the meaning ascribed thereto in Paragraph 6.2.

"FX" means all types of currencies (including Hong Kong Dollars).

"FX Contract" means any contract for the sale or purchase by the Bank to or from the Customer (as the case may be) of any FX in exchange for any other FX at an agreed rate, which is concluded or deemed to be formed pursuant to a FX Transaction upon the terms of this Schedule II.

"FX Market" means the local or foreign interbank foreign exchange market generally having quotation for the sale or purchase of the relevant type of FX.

"FX Margin Trading Account" means an account opened and maintained in the name of the Customer with the Bank from time to time for the purpose of settling FX Transactions.  For the avoidance of doubt, the FX Margin Trading Account is a Designated Account within the meaning of the Terms and Conditions.

"FX Transaction" means the sale or purchase of FX for the purposes of trading in FX which is unrelated to bills or documentary credit, foreign currency deposit, remittance, draft, traveller's cheque transactions.

"FX Transaction Business Day" means a day other than a public holiday in Hong Kong.

"HKD-Based Contract" means any FX Contract in which the pair of FX to be delivered by the parties thereunder involves HKD.

"Local Business Day" means a day other than: (a) a public holiday in Hong Kong; and (b) a gale warning day or a black rainstorm warning day as defined in section 71(2) of the Interpretation and General Clauses Ordinance (Cap. 1 of Laws of Hong Kong).

"Margin Percentage" means any percentage(s) determined by the Bank to be applicable to HKD-Based Contracts and/or Non-HKD-Based Contracts for the purpose of determining the Margin Requirement under Paragraph 4.2(b).

"Margin Requirement" has the meaning ascribed thereto in Paragraph 4.2(b).

"Market Practice" means the practice of the FX Market in which the relevant FX Transaction is carried out.

"Non-HKD" means any FX other than HKD.

"Non-HKD-Based Contract" means any FX Contract in which the pair of FX to be delivered by the parties thereunder does not involve HKD.

"Offer Interest Rate" in respect of a particular FX, means the rate of interest at which the Bank is prepared to accept for lending such FX to a third party, such rate to be determined by the Bank absolutely on a daily basis with reference to the prevailing market condition.

"Other Party" has the meaning ascribed thereto in Paragraph 8.2(e).

"Periodical Statement" has the meaning ascribed thereto in Paragraph 5.9.

"Potential FX Contract" has the meaning ascribed thereto in Paragraph 4.1.

"Potential HKD-Based Contract" means any Potential FX Contract in which the pair of FX to be delivered by the parties thereunder involves HKD.

"Potential Non-HKD-Based Contract" means any Potential FX Contract in which the pair of FX to be delivered by the parties thereunder does not involve HKD.

"Resultant Amount" has the meaning ascribed thereto in Paragraph 8.2(e)(ii).

"Rules and Regulations" means such rules and regulations from time to time in force prescribed by the Bank governing the conduct of FX Transactions between the Bank and its customers in general.

"Specified Rate" has the meaning ascribed thereto in Paragraph 6.3(a)(i).

Two FX Contracts may be "squared" if and when the terms of Paragraph 8.1 are met and the expressions "square", "squared" and "squaring" shall be construed accordingly.

"Standing Order" means a conditional order or instruction relating to FX Transactions which the Customer has requested the Bank to carry out during Business Hours if the relevant conditions are met.

"Subject FX Contract" of two squared FX Contract has the meaning ascribed thereto in Paragraph 8.2(a).

"Termination Date" means the effective date of the termination of an FX Contract or order or instruction relating to FX Transactions pursuant to Paragraph 10.

"Termination Event" means any of the events described in Paragraph 10.1.

"USD" means the lawful currency for the time being of the United States of America.

"Value Date" means the date for delivery of the FX to settle the FX Transaction concerned as determined by the Bank in accordance with Market Practice, and if it falls on a non-FX Transaction Business Day, the Value Date shall become the next succeeding FX Transaction Business Day which is not a Saturday.

1.2     Unless otherwise stated, reference to Paragraphs means the paragraphs of this Schedule II and reference to Clauses means the clauses of Part A.

1.3     Unless otherwise provided or unless there is something in the subject or context inconsistent therewith all the words and phrases defined in Part A shall have the same meanings in this Schedule II.

1.4     All FX Transactions are entered into in reliance on the fact that the Agreement and all FX Contracts made between the Bank and the Customer form a single agreement between them and that the Bank and the Customer would not otherwise enter into any FX Transactions.

1.5     The Customer hereby acknowledges and agrees that:

(a)  in the determination of the Bank Quotation, the Bank may depart from the rates quoted by its internal treasury department or section or by outside information agency or agencies to such extent as the Bank may deem fit;
(b)  the outside information agency or agencies selected by the Bank for determining the Bank Quotation may include any company, firm, organization or centre related to or under the control of the Bank; and
(c)  owing to the difference in the source of information, the Bank Quotation as determined by the Bank may be at variance with those rates quoted or broadcasted by any other third party (including but not limited to any other financial institutions, financial information suppliers or mass media).

2.      Terms and Conditions of FX Contracts

All FX Contracts entered into between the Bank and the Customer from time to time shall be subject to the following provisions which shall prevail in that order in case of conflict:
(a)  the terms and conditions of the relevant Contract Documents;
(b)  the Terms and Conditions;
(c)  the Rules and Regulations; and
(d)  the Market Practice.

3.      FX Margin Trading Account and Cash Margin

3.1     To effect an FX Transaction with the Bank, the FX Margin Trading Account must be opened at the relevant time.
3.2     The Bank shall keep account of the balances of the Cash Margin under the FX Margin Trading Account.  The outstanding balances of the Cash Margin may be denominated in such different currencies as the Bank may deem fit from time to time.  The Bank may (but is not obliged to) allow all or any balances of the Cash Margin to go into debit up to such extent as the Bank may in its absolute discretion deem fit from time to time.
3.3     When the Customer is required to pay any sum as Cash Margin to the Bank, the Bank may determine in its absolute discretion the manner in which such sum shall be paid to the Bank.  Upon receipt of such sum to the Bank's satisfaction, the Bank shall credit the appropriate balance of the Cash Margin with the sum received.
3.4     Interest may be earned on the outstanding credit balances of the Cash Margin at such rate(s) and payable at such intervals as the Bank may from time to time determine absolutely, provided however that the Bank shall not be obliged to pay any interest on any credit balances of the Cash Margin.  Without prejudice to the above, the Bank reserves its right to impose charges on, and deduct the same from, the credit balances of the Cash Margin.
3.5     Any debit balances of the Cash Margin shall be payable by the Customer in the relevant currency on demand and the Bank may charge interest on such debit balances at such rate(s) and payable at such intervals as the Bank may from time to time determine absolutely.
3.6     Irrespective of whether any demand has or has not been made under Paragraph 3.5 above and in addition to any other rights of the Bank, the Bank may at any time without prior notice to the Customer convert the currencies of any balances of the Cash Margin into other currencies at such exchange rate(s) as quoted and determined by the Bank absolutely and/or set off any credit balances of the Cash Margin against the debit balances thereof.  The Bank shall not be liable to the Customer for any loss resulting from any fluctuation in exchange rates before or after the exercise of the powers under this Paragraph 3.6.
3.7     Any sum due and payable by the Customer to the Bank under the Terms and Conditions may, in the Bank's absolute discretion, be debited to the balances of the Cash Margin without the prior consent from or notice to the Customer, notwithstanding that in doing so, a debit balance of the Cash Margin will be created or the amount of the relevant debit balance will be increased.
3.8     All sums standing to the credit of any balances of the Cash Margin shall be held by the Bank as cash cover and deposit for the performance by the Customer of all the FX Contracts of the Customer for the time being outstanding, and the Bank may appropriate such sums and thereby reduce such credit balances of the Cash Margin at any time in accordance with the Terms and Conditions and the Customer shall not be entitled to withdraw any part of the credit balances of the Cash Margin unless with prior consent of the Bank, which consent may be withheld by the Bank in its absolute discretion for so long as there is any outstanding FX Contract or any sum owing by the Customer to the Bank.
3.9     Any determination by the Bank as to the outstanding balances of the Cash Margin shall be conclusive and binding upon the Customer absolutely, save for manifest error.
3.10   The Customer may, with the prior written agreement of the Bank, provide any other form of security acceptable to the Bank in substitution for or in addition to the Cash Margin.  Such security shall be evidenced or constituted in writing by way of a separate agreement between the Bank, the Customer and/or any applicable third party.
3.11   The operating hours of the Designated Line are subject to change at the Bank's discretion and as notified to the Customer from time to time.  The Customer acknowledges that the Designated Line may not be in operation when the Customer wishes to give an Instruction relating to FX Transactions or an Instruction to transfer funds in or out of the FX Margin Trading Account.  The Customer acknowledges that it is the Customer's responsibility to ensure that sufficient funds are in the account at the required time for carrying out Instructions and defraying interest and expenses.

4.      Account Equity and Margin Requirement


4.1     The Bank shall not be obliged to enter into any FX Contract proposed by the Customer or accept or execute any Standing Order given by the Customer which may potentially result in the formation of any FX Contract (such potential FX Contract is hereinafter called the "Potential FX Contract"), unless the Account Equity (as defined below) of the Customer as at the relevant time is not less than the Margin Requirement (as defined below) after taking into account the Potential FX Contract.  If the Account Equity is insufficient to cover the said Margin Requirement, the Bank shall have the absolute right (but not under any duty) to demand the Customer to deposit sum(s) for the credit of the Cash Margin, or security in such form and value as the Bank may in its absolute discretion accept to increase the credit allowance for the Cash Margin, so as to increase the Account Equity to meet the required amount of the said Margin Requirement, before the Bank will enter into the Potential FX Contract or otherwise accept or execute the Standing Order which may lead to the formation of the Potential FX Contract.

4.2    For the purposes of this Schedule II:

(a)  "Account Equity" means the credit balances of the Cash Margin plus (i) any credit allowance granted by the Bank in favour of the Customer as Cash Margin; plus (ii) the unrealized profits on the outstanding FX Contracts resulting from the marking‑to‑market calculation made by the Bank under Paragraph 7 below and any interest accrued in favour of the Customer under Paragraph 9.1(b) below and any interest accrued in favour of the Customer on any credit balances of the Cash Margin; less (iii) the debit balances of the Cash Margin; less (iv) the unrealized losses on the outstanding FX Contracts resulting from the marking-to-market calculation made by the Bank under Paragraph 7 below and any interest accrued in favour of the Bank under Paragraph 9.1(a) below and any interest accrued in favour of the Bank on any debit balances of the Cash Margin; and less (v) any other sum(s) (whether of interest or otherwise) due or payable by the Customer to the Bank under the Terms and Conditions or, as the Bank may in its absolute discretion deem appropriate, under any other arrangements or transactions between the Bank and the Customer, provided that:

(i)   all such balances and amounts, where necessary, shall be converted notionally into HKD at the Bank Quotation(s) determined by the Bank absolutely at the time of calculation; and
(ii)   in calculating the Account Equity, the Bank may discount those credit balances or amounts which are not denominated in HKD by not more than 10%, and may impose a levy of not more than 10% on those debit balances or amounts which are not denominated in HKD; and
(b)  "Margin Requirement" means the sum of (i) the aggregate of the open positions of the Customer under all the outstanding HKD-Based Contracts (whether the Value Dates thereof have passed or otherwise) and where applicable, under the Potential HKD-Based Contracts, multiplied by the Margin Percentage applicable to HKD-Based Contracts, and (ii) the aggregate of the open positions of the Customer under all the outstanding Non-HKD-Based Contracts (whether the Value Dates thereof have passed or otherwise) and where applicable, under the Potential Non-HKD-Based Contracts, multiplied by the Margin Percentage applicable to Non-HKD-Based Contracts, provided that:
(i)   for the purpose of determining the said open position of the Customer, where the same pair of FX has to be exchanged by the Bank and the Customer with the other under two or more outstanding FX Contracts and the Potential FX Contract (where applicable), the delivery obligations of the parties in the respective FX may, at the absolute discretion of the Bank, be aggregated or netted off, as the case may be, as if there were a single FX Contract;
(ii)   in respect of a HKD-Based Contract or (where applicable) Potential HKD-Based Contract, the said open position of the Customer under the same shall be equal to the non-HKD amount to be delivered by the Bank or the Customer (as the case may be) under the HKD-Based Contract or the Potential HKD-Based Contract (where applicable), as converted notionally into HKD at the Bank Quotation determined by the Bank absolutely at the time of calculation; and
(iii)  in respect of a Non-HKD-Based Contract or (where applicable) Potential Non-HKD-Based Contract, the said open position of the Customer under the same shall be equal to the amount in any one of the relevant FX selected by the Bank absolutely, as converted notionally into HKD at the Bank Quotation determined by the Bank absolutely at the time of calculation, provided that where one of the FX involved is USD, then the amount of FX to be notionally converted into HKD shall be the amount not denominated in USD.

4.3     The Margin Percentage(s) applicable to HKD-Based Contracts and/or Non-HKD-Based Contracts shall be determined by the Bank from time to time absolutely.  As at the date of the Agreement, the Margin Percentage applicable to HKD-Based Contracts is 14.28% and that applicable to Non-HKD-Based Contracts is 5%, provided that the Bank may at its discretion adjust any one or more of the Margin Percentage(s) upon not less than 30 days' prior written notice to the Customer.

4.4     Any determination as to the Account Equity and/or the Margin Requirement at any time by the Bank shall be conclusive and binding upon the Customer, save for manifest error.

4.5     If at any time the Account Equity of the Customer shall fall below the Margin Requirement, the Bank may, but shall not be obliged to, demand the Customer to deposit sum(s) for the credit or additional credit of the Cash Margin, or security in such form and value as the Bank may in its absolute discretion accept to increase the credit allowance for the Cash Margin, so as at least to restore the Account Equity to the level of the Margin Requirement.  Such demand shall be deemed conclusively and validly made with immediate effect notwithstanding that the Customer cannot be contacted personally so long as message therefor has been left for the Customer (or any of them in case where the Customer consists of more than one person) by telephone at any one of the telephone number(s) of the Customer on the Bank's record or provided by the Customer or by facsimile or in writing left at the applicable Account Address or in the absence of which, the Correspondence Address on record with the Bank.  The Customer acknowledges that the Bank's right to require the Customer to restore the Account Equity to the level of the Margin Requirement pursuant to this Paragraph shall not in any way be construed as a limitation on its other rights contained herein.

 

5.      Conclusion of FX Contracts and Confirmation

5.1     The Bank reserves the right at any time without giving any reason therefor not to enter into any FX Transaction with or to accept any Instruction (including any Standing Order) for sale or purchase of FX from the Customer. No failure on the Bank's part to execute any Instruction given by the Customer for the sale or purchase of FX, despite receipt of the same having been acknowledged or confirmed by the Bank, shall give rise to any claim by the Customer against the Bank.

5.2     Unless otherwise agreed by the Bank under exceptional circumstances, order for sale or purchase of FX and any instruction of whatever nature relating to any FX Transaction shall be given by the Customer in accordance with Clause 3.1(a) but only at the Designated Lines or by such other means as the Bank may from time to time expressly agree. All telephone conversations between the Customer and the Bank made in the course of business will be recorded on a centralized tape recording system operated by the Bank. Where the voice of the Customer cannot be recorded on the centralized tape recording system operated by the Bank for any reason, in the absence of any written instruction given by the Customer, the Customer shall be required to sign an order form in respect of the Customer's instruction relating to such FX Transaction.

5.3     Unless the Bank shall in its absolute discretion agree to the contrary, all FX Transactions shall be effected during such Business Hours as the Bank may in its absolute discretion determine from time to time.  It is acknowledged that the Bank's normal services for operating FX Margin Trading Accounts for its general customers may be suspended at such time and for such period as the Bank deems fit if typhoon signal No. 8 or above or black rain storm warning is issued in Hong Kong.

5.4     The Customer acknowledges that rates for FX may fluctuate in a very short period of time and agrees that any rate quoted by the Bank for a proposed FX Contract whether verbally, by telephone, by telex or otherwise shall not form the basis of any binding FX Contract unless the Bank has confirmed such FX Contract in accordance with Paragraph 5.5(a) below.

5.5     Notwithstanding any rule of law to the contrary:

(a)  an FX Contract shall be concluded when the Customer has, by way of an Instruction, indicated the Customer's acceptance of the terms of such FX Contract to the Bank  AND  the Bank has then, whether in writing or orally or by or through any telecommunication means or otherwise, confirmed its agreement to enter into such FX Contract with the Customer;

(b)  a Standing Order shall be deemed to be accepted by the Bank when the Customer has, by way of an Instruction, indicated the terms of the Standing Order to the Bank AND the Bank has then, whether in writing or orally or by or through any telecommunication means or otherwise, confirmed its agreement to accept such Standing Order from the Customer; and
(c)  where the Bank does not have the Customer's order for sale or purchase of FX recorded on tape or an order form signed by the Customer in accordance with Paragraph 5.2 above, and the Customer disputes the order within 10 Local Business Days of its execution, the said order shall be voidable at the option of the Customer by written notice given not later than 3 Local Business Days after the said dispute is raised, or the end of the said 10 Local Business Day period, whichever is later.
5.6    All Contract Documents signed by the Customer and/or (where applicable) the Authorized Signatory(ies) in accordance with the relevant Agreed Signing Arrangement, by way of acknowledgement or confirmation or otherwise, shall be conclusively binding upon the Customer, save for manifest error.
5.7    For all intents and purposes of the Terms and Conditions, any FX Contract entered into between the Bank and the Customer hereunder for the FX Margin Trading Account shall be "spot" FX Contract which shall have a Value Date falling on the conclusion of the FX Contract or such other date as the Bank may in its absolute discretion from time to time determine in accordance with prevailing market practice for the FX concerned.

5.8    A Confirmation will be sent by the Bank to the Customer as follows:

(a)  For each FX Contract concluded (except pursuant to a Standing Order) the Bank will send to the Customer a Confirmation in writing as a matter of record on or before the second Local Business Day following the day of Instruction concerned.
(b)  For each FX Contract concluded pursuant to a Standing Order, the Bank will send to the Customer a Confirmation on or before the second Local Business Day following the conclusion of the FX Contract concerned.
5.9  The Bank will also issue monthly statements for the FX Margin Trading Account (each, a "Periodical Statement") to the Customer setting out the particulars of FX Contracts and Confirmations concluded or held by the Customer together with any amount of Balancing Interest credited or (as the case may be) debited to the FX Margin Trading Account or such other information as the Bank may determine in respect of the relevant month, unless during the relevant month, no FX Contract has been concluded, no revenue or expenses item (including any Balancing Interest) has arisen under the FX Margin Trading Account, no FX Contract is outstanding in the FX Margin Trading Account as at the end of the relevant month, no sum (or other security) has been deposited by the Customer for the credit of (or for obtaining credit allowance for) the Cash Margin and the balance of the Cash Margin is nil at all times during the relevant month.

5.10   Clauses 5.2 to 5.5 are applicable as if a Confirmation were an Advice and a Periodical Statement a Statement referred to therein, and references to "Business Day" therein shall mean "Local Business Day".

5.11   If the Bank receives a Notice of Irregularity for an FX Contract concluded duly signed by the Customer in accordance with the relevant Agreed Signing Arrangement within 90 days from the date of the Confirmation or (as the case may be) the Periodical Statement, then unless the dispute regarding any alleged error or irregularity is settled between the Customer and the Bank within one Local Business Day, the Bank shall have the sole discretion to deem a Termination Event as having arisen.

6.      Standing Orders

6.1    Standing Orders may be placed by the Customer with the Bank by Instructions given in accordance with Clause 3.1(a) but only at the Designated Lines or by such other means as the Bank may from time to time expressly agree.
6.2     Subject to the Bank's absolute right not to accept any Standing Order pursuant to Paragraph 5.1 above, every Standing Order shall take immediate effect upon acceptance thereof by the Bank, and unless otherwise agreed to by the Bank, the Customer shall specify in each Standing Order the time up to which the Standing Order is open for execution (the "Effective Period").
6.3     Subject to Paragraph 4.1 above, no FX Contract or FX Transaction shall be deemed concluded pursuant to a Standing Order save and except as provided in the following circumstances:
(a)  in case of a Standing Order for the sale or purchase (as the case may be) of an FX:
(i)   at or above the rate specified in the Standing Order ("Specified Rate"); or
(ii)   at a Specified Rate but at the time of acceptance by the Bank of the Standing Order, the prevailing Bank Quotation applicable is below the Specified Rate,

  the Standing Order shall be deemed to have been executed by the Bank and a valid and binding FX Contract shall be deemed to have formed at the time the applicable Bank Quotation is, for the first time after the Bank's acceptance of the Standing Order but before the expiration of the Effective Period, at or above the Specified Rate, and the Specified Rate or the Bank Quotation above mentioned (at the Bank's discretion) shall be the rate at which such FX Contract is concluded pursuant to the Standing Order; and

(b)  in case of a Standing Order for the sale or purchase (as the case may be) of an FX:
(i)   at or below a Specified Rate; or
(ii)   at a Specified Rate but at the time of acceptance by the Bank of the Standing Order, the prevailing Bank Quotation applicable is above the Specified Rate,

  the Standing Order shall be deemed to have been executed by the Bank and a valid and binding FX Contract shall be deemed to have formed at the time the applicable Bank Quotation is, for the first time after the Bank's receipt of the Standing Order but before the expiration of the Effective Period, at or below the Specified Rate, and the Specified Rate or the Bank Quotation above mentioned (at the Bank's discretion) shall be the rate at which such FX Contract is concluded pursuant to the Standing Order.

6.4     The Customer acknowledges and agrees that notwithstanding the Bank's acceptance of a Standing Order, such Standing Order may not eventually result in the formation of any FX Contract owing to market conditions.

7.      Marking-to-Market Calculation
The Bank may, at such time or times as it thinks fit, mark all of the Customer's outstanding FX Contracts to market in accordance with the prevailing Bank Quotations determined by the Bank at the time of calculation, provided that for the purpose of such marking-to-market calculation, where the same pair of FX has to be exchanged by the Bank and the Customer with the other under two or more outstanding FX Contracts, the Bank may at its sole discretion aggregate or net off, as the case may be, the delivery obligations of the parties in the respective FX under the FX Contracts as if there were a single FX Contract.

8.      Squaring and Physical Delivery
8.1     If the Customer shall at any time enter into two FX Contracts with the Bank involving the same pair of FX which satisfy the following conditions:

(a)  they have all reached or passed their respective Value Dates; and
(b)  the Bank is obliged to deliver one type of FX to the Customer under one FX Contract and the Customer is obliged to deliver the same type of FX to the Bank under the other FX Contract,
THEN  the Bank may in its absolute discretion regard such two FX Contracts as "squared" in accordance with Paragraph 8.2 below without prior notice to or consent from the Customer, whereupon the Bank and the Customer shall be absolutely released and discharged from all liabilities and further performance of such two FX Contracts, save and except as provided in Paragraph 8.2 below.
Provided that:
(i)  if there are more than two FX Contracts satisfying the conditions set out above, the Bank shall have the sole and absolute right to determine which two FX Contracts shall be squared, unless otherwise expressly agreed with the Customer; and
(ii)  without prejudice to the Bank's right under Paragraph 10 below, the Bank may, at its absolute discretion and upon the Customer's request, agree not to square any of the FX Contracts for such time as the Bank deems fit notwithstanding that such FX Contracts have satisfied the conditions set out in this Paragraph 8.1 but any such action by the Bank shall not affect the Bank's absolute right at any time thereafter to square any or all remaining FX Contracts.

8.2    Where any two FX Contracts are squared, the following provisions shall apply:

(a)  Out of the two squared FX Contracts, the FX Contract concluded earlier shall hereinafter be called the "Subject FX Contract", whereas the other FX Contract shall hereinafter be called the "Counter FX Contract".

(b)  The delivery obligations of the parties in the respective FX under the Subject FX Contract and the Counter FX Contract shall be netted off against each other as if there were a single FX Contract.
(c)  The provisions of Paragraphs 8.2(d) to (g) below shall apply to the two squared FX Contracts which are HKD-Based Contracts.
(d)  Where the two squared FX Contracts are HKD-Based Contracts and the netted delivery obligation of one party to the other in Non-HKD is equal to nil, the following provisions shall apply:
(i)   the party who is under the netted delivery obligation in HKD is deemed to have made a loss in an HKD amount equal to the amount of the netted delivery obligation;
(ii)   if the Bank is such party as mentioned in Sub-paragraph (i) above, the Bank shall credit the balances of the Cash Margin with the amount of loss; if the Customer is such party, the Bank shall be entitled to debit the balances of the Cash Margin with the amount of loss; and
(iii)  the two squared FX Contract shall be referred to as "completely squared" in such event.
(e)  Where the two squared FX Contracts are HKD-Based Contracts and the netted delivery obligation of one party (the "Delivery Party") to the other (the "Other Party") in Non-HKD is not equal to nil, the parties shall be deemed to have entered into a new replacement FX Contract upon the following terms:
(i)   under such new replacement FX Contract, the Delivery Party, which may be the Bank or (as the case may be) the Customer, shall assume the netted delivery obligation in the relevant Non-HKD amount to the Other Party;
(ii)   in exchange for the netted delivery obligation in the Non-HKD amount of the Delivery Party as aforesaid, the Other Party shall, under the new replacement FX Contract, assume a delivery obligation to the Delivery Party in a HKD amount (the "Resultant Amount") which is calculated on the basis of the "applicable exchange rate" determined as follows:
(1)  where the Delivery Party is the same party obliged to deliver in Non-HKD under the Subject FX Contract, the applicable exchange rate shall be that of the Subject FX Contract; and
(2)  where the Delivery Party is not the same party obliged to deliver in Non-HKD under the Subject FX Contract, the applicable exchange rate shall be that of the Counter FX Contract; and
(iii)  the new replacement FX Contract shall be deemed to have reached or passed its Value Date and shall be immediately available for squaring as any other FX Contract.
(f)   If the netted delivery obligation of the Other Party in HKD as arrived at through the netting under Paragraph 8.2(b) above is greater than the Resultant Amount as arrived at under Paragraph 8.2(e) above, the Other Party shall be deemed to have made a loss in a HKD amount equal to the difference.  If the Bank is the Other Party, the Bank shall credit the balances of the Cash Margin with the amount of loss; or if the Customer is the Other Party, the Bank shall be entitled to debit the balances of the Cash Margin with the amount of loss.
(g)  If the netted delivery obligation of the Other Party in HKD as arrived at through the netting under Paragraph 8.2(b) above is less than the Resultant Amount as arrived at under Paragraph 8.2(e) above, the Other Party shall be deemed to have made a gain in a HKD amount equal to the difference.  If the Bank is the Other Party, the Bank shall be entitled to debit the balances of the Cash Margin with the amount of gain; or if the Customer is the Other Party, the Bank shall be entitled to credit the balances of the Cash Margin with the amount of gain.
(h)  If the two squared FX Contracts are Non-HKD-Based Contracts, the Bank shall be entitled to determine which FX of the pair to be the "Base FX" and that the other FX to be the "Cross FX", provided that if one of the FX involved is USD, USD shall be the Base FX.
(i)   In respect of the two squared FX Contracts under which a pair of Base FX and Cross FX is involved, where the netted delivery obligation of one party to the other in the Cross FX is equal to nil, Sub-paragraphs (i), (ii) and (iii) in Paragraph 8.2(d) above shall apply to the parties mutatis mutandis, except that references to "HKD" and "HKD amount" therein shall be to "Base FX" and "Base FX amount" respectively and that the Bank shall be entitled to credit or (as the case may be) debit the Base FX Amount of loss to the balances of the Cash Margin.
(j)   In respect of the two squared FX Contracts under which a pair of Base FX and Cross FX is involved, where the netted delivery obligation of one party to the other in the Cross FX is not equal to nil:

(i)   the parties shall be deemed to have entered into a new replacement FX Contract upon the terms set out in Paragraph 8.2(e) above except that references to "HKD" and "HKD amount" therein shall be to "Base FX" and "Base FX amount" respectively and references to "Non-HKD" and "Non-HKD amount" therein shall be to "Cross FX" and "Cross FX amount" respectively; and

(ii)   the provisions of Paragraphs 8.2(f) and (g) above shall apply to the parties mutatis mutandis, except that references to "HKD" and "HKD amount" shall be to "Base FX" and "Base FX amount" respectively and that the Bank shall be entitled to credit or (as the case may be) debit the Base FX amount of loss or gain (as the case may be) to the balances of the Cash Margin.

8.3     It is acknowledged that the parties may make a loss or gain in HKD or Base FX (as the case may be) when two FX Contracts are squared pursuant to the provisions of Paragraph 8.2 above.  If the Customer has designated that any such loss or gain is to be settled in HKD, USD or any other currency acceptable to the Bank, the Bank shall be entitled (but not be obliged) to convert any such loss or gain into the designated currency (where necessary) at such exchange rate as quoted and determined by the Bank absolutely at the relevant time, before making the appropriate credit or (as the case may be) debit to the balances of the Cash Margin under Paragraph 8.2 above in respect of the loss or gain.


8.4     Subject always to the absolute discretion of the Bank, the parties may settle any FX Contract which has reached or passed its Value Date by way of physical deliveries.  Once the parties have agreed to settle a FX Contract by physical deliveries, the following provisions shall be applicable:

(a)  on the agreed settlement date at or prior to the agreed settlement time, the Customer shall pay and deliver the amount payable by the Customer to the Bank under the FX Contract in the relevant type of FX and in freely disposable immediately available funds to an account (whether in Hong Kong or abroad) designated by the Bank; and

(b)  subject to the receipt by the Bank of evidence or confirmation satisfactory to the Bank of such payment from the Customer as provided in Paragraph 8.4(a) above, the Bank shall as soon as practicable pay the amount payable to the Customer under the FX Contract in the relevant type of FX by way of crediting the same into the FX Margin Trading Account as Cash Margin or in such other manner as the Bank may in its absolute discretion agree, whereupon the FX Contract concerned shall be deemed settled completely and cease to subsist.

9.      Balancing Interest

 

9.1     In respect of each FX Contract, interest shall be payable respectively by the Bank and the Customer to each other as from and including the Value Date up to and until the date when the FX Contract ceases to subsist, whether by way of squaring under Paragraphs 8.1 and 8.2 above, physical deliveries under Paragraph 8.4 above or as a result of the Bank exercising its powers under Paragraph 10.2 below.  Such interest is hereinafter called the "Balancing Interest" and shall be payable:

(a)  by the Customer to the Bank in the type of FX of and on the amount to be delivered by the Customer under the FX Contract at such prevailing Offer Interest Rate of the currency concerned quoted and determined by the Bank from time to time; and
(b)  by the Bank to the Customer in the type of FX of and on the amount to be delivered by the Bank under the FX Contract at such prevailing Bid Interest Rate of the currency concerned quoted and determined by the Bank from time to time.

9.2     The following provisions shall be applicable to the Balancing Interest:

(a)  The Balancing Interest shall accrue on the actual number of days elapsed in a year of 365 days in case of HKD, in a year of 360 days in case of USD, or in case of any other currencies in a year of such number of days as may be customary in accordance with the Market Practice for computation of interest for the currency concerned.

(b)  The Bank shall not be obliged to discharge any Balancing Interest to the Customer unless the Customer has duly paid and discharged to the Bank all Balancing Interest accrued in favour of the Bank.
(c)  All Balancing Interest accruing in favour of the Bank shall be payable on demand and if without demand monthly.  Without prejudice to the foregoing, when any amount of Balancing Interest is due and payable by the Customer, the Bank shall have the right to debit the balances of the Cash Margin with the relevant amount of Balancing Interest.
(d)  Any Balancing Interest payable by the Bank to the Customer shall be deemed paid once it is credited to the balances of the Cash Margin of the FX Margin Trading Account.
(e)  Subject always to Paragraph 3.11 above, if any Balancing Interest shall be payable on a non-FX Transaction Business Day, it shall automatically become payable on the immediately preceding FX Transaction Business Day.
(f)   Any Balancing Interest due but unpaid by the Customer may be compounded by the Bank monthly.
9.3     If the Customer has designated that any Balancing Interest, whether payable by the Bank or by the Customer, is to be settled in HKD, USD or any other currency acceptable to the Bank, the Bank shall be entitled (but not be obliged) to convert any amount of Balancing Interest into the designated currency (where necessary) at such exchange rate as quoted and determined by the Bank absolutely at the relevant time, before making the appropriate credit or (as the case may be) debit to the balances of the Cash Margin of the FX Margin Trading Account or (as the case may be) making any demand against the Customer in respect of the Balancing Interest.

10.    Termination Events

10.1  The occurrence of any one of the following events shall be a Termination Event:

(a)  the failure of the Customer to pay any amount of whatever nature under any FX Contract or this Schedule II when due;
(b)  the breach by the Customer of any terms and conditions of this Schedule II or any FX Contract;
(c)  the failure by the Customer to pay any additional Cash Margin promptly as provided in Paragraph 4.5 above;
(d)  a Termination Event is deemed to have arisen pursuant to Paragraph 5.11 above;
(e)  the failure of the Customer to pay any amount of whatever nature undertaken or covenanted to be paid by the Customer to the Bank under any loan agreement, indemnity, guarantee, bond or undertaking of whatsoever nature upon maturity or where demand is required, after demand has been duly made;
(f)   the continuing performance of any of the FX Contracts becomes illegal or is in breach of Applicable Regulations or is claimed by any government authority to be illegal or in breach of Applicable Regulations ;
(g)  the continuing performance of either party's obligation under this Schedule II becomes illegal or is in breach of Applicable Regulations or is claimed by any government authority to be illegal or in breach of Applicable Regulations ;

        (h)  notice or knowledge on the part of the Bank from whatever source of the death or mental 
         incapacity of the Customer;

(i)   the Customer shall become insolvent or generally suspend payment of debts when due or a bankruptcy petition or a winding-up petition is being presented against the Customer or a resolution is being passed for the winding-up of the Customer; or the Customer shall suffer any distraint or levy of execution of any kind, or a receiver is being appointed over the Customer or any substantial part of the property or assets of the Customer;
(j)   if at any time the Account Equity shall be equal to or fall below 50% of the Margin Requirement; and
(k)  circumstances shall have arisen or continued which, in the Bank's opinion, may jeopardize the position of the Bank in relation to any FX Contract and require the Bank to take such action as may be necessary for the protection of the Bank.

10.2  Without prejudice to the Bank's overriding right to terminate any and all Services to the Customer at any time immediately and without notice under Part A of these Terms and Conditions, immediately upon or at any time after the occurrence of any of the Termination Events, the Bank shall be entitled (but not under any duty), without prior notice to the Customer and without prejudice to the other rights and remedies of the Bank and without releasing the Customer from any liability, to exercise all or any of the following powers:

(a)  to completely square (within the meaning as described in Paragraph 8.2(c) above) all or any of the outstanding FX Contracts for the Customer; and/or
(b)  to deem all or any of the orders or Instructions (accepted or otherwise) relating to FX Transactions (including but not limited to Standing Orders) as revoked by the Customer absolutely.  

10.3 (a) Where the Bank has, pursuant to Paragraph 10.2 above, decided to completely square (within the meaning as described in Paragraph 8.2(c) above) any outstanding FX Contract for the Customer, such FX Contract in question shall in this Paragraph 10.3 be referred to as the Subject FX Contract and the Bank shall be entitled, without prior notice to the Customer, to enter into a new FX Contract (which is in this Paragraph 10.3 referred to as the Counter FX Contract) with the Customer unilaterally at the prevailing applicable Bank Quotation determined by the Bank absolutely such that the Subject FX Contract and the Counter FX Contract shall become completely squared and cease to subsist once when they have all reached or passed their respective Value Dates.  Upon such complete squaring, subject always to the Bank's right (to be exercisable at its absolute discretion) to forfeit any gain of the Customer in respect of any or all FX Contracts of the Customer, the respective rights and obligations of the parties in relation to the Subject FX Contract and the Counter FX Contract in question shall be governed by Paragraphs 8.2 and 8.3 above.

         (b)  Without prejudice to the Bank's rights under Paragraph 10.3(a) above, Confirmation as to the formation of the said Counter FX Contract may be given to the Customer in accordance with Paragraph 5.8 above.

10.4 Where the Bank has, pursuant to Paragraph 10.2 above, decided to deem any Standing Orders accepted but not yet executed by the Bank as revoked by the Customer absolutely, the Bank shall have no special obligation to refund any sum(s) paid by the Customer as Cash Margin, or to release any security given by the Customer for obtaining credit allowance for Cash Margin, at the time when the Customer gave the relevant Standing Orders to the Bank, nor shall the Bank have any duty to notify the Customer of the deemed revocation of any Standing Orders.

 

11.   Payment Provisions

 

11.1   All payments by the Customer under this Schedule II or any FX Contract shall be made in full without set off or counterclaim and free from and clear of any deduction and withholding whatsoever and unless otherwise expressly agreed to the contrary, shall only be deemed made upon the crediting of the same in the currency agreed into such account as the Bank may designate (whether in Hong Kong or abroad) in freely disposable immediately available funds. If any payment to be made is subject to any tax or other withholding, the Customer undertakes to pay to the Bank such additional amounts as may be necessary to ensure the receipt by the Bank is equivalent to the amount which the Bank would otherwise have received had there been no such tax or other withholding. 

11.2   All payments by the Bank to the Customer under this Schedule II or any FX Contract shall be made by crediting the same into the FX Margin Trading Account of the Customer with the Bank or by remitting the same into such other accounts of the Customer as the Customer may designate subject to the payment by the Customer of such charges and commissions as the Bank may impose or such withholding or deduction that the Bank is entitled or required to make by any Applicable Regulations.

11.3   Any Instruction given by the Customer relating to any payment by the Bank of any net equity, floating profit or margin excess (where applicable) in respect of the Customer's FX Margin Trading Account shall be complied with within 1 FX Transaction Business Day after the giving of such Instruction.

11.4   The Bank may debit the accounts of the Customer and in case where the Customer consists of more than one person, the accounts of any one or more of such persons for any or all sums due by the Customer to the Bank under this Schedule II or under any FX Transactions or FX Contracts without any prior notice to the Customer and irrespective of whether such accounts are with the Bank or with any of its subsidiaries in Hong Kong or abroad and of whatsoever nature (including but not limited to all types of current, savings, time, call and deposit accounts) and in whatever currency and if necessary the Bank may make such conversion in currency at such selling or buying rate (as the case may be) as the Bank may in its absolute discretion deem fit or determine.

12.    Acknowledgment and Warranties

         The Customer declares and warrants that:

(a)  the Customer is fully aware of the risk in the sale or purchase of FX and all FX Contracts will be entered into by the Customer  the Customer's own judgment and at the risk of the Customer whether or not advice have been obtained from the Bank;
(b)  the Customer understands and acknowledges the high degree of leverage that is often associated with FX Transactions because of the small margin requirements and such high leverage can work against as well as for the Customer. The high leverage can lead to large losses as well as gains;
(c)  save as otherwise notified to the Bank in writing, the Customer is trading and entering into FX Transactions and FX Contracts on his own behalf;
(d)  the Customer is fully aware that under certain market conditions, the Customer may find it difficult or impossible to liquidate a position and therefore the losses of the Customer may not be limited to the Cash Margin deposited with the Bank;
(e)  there is commercial justification for the Customer entering into FX Transactions and FX Contracts with the Bank and that the Customer has full power and authority to enter into FX Transactions and FX Contracts and perform its obligation thereunder and that such obligations are valid and binding upon the Customer;
(f)   subject to Paragraph 5.2 above, the FX Margin Trading Account shall be operated by the Customer and/or (where applicable) the Authorized Signatory(ies) on behalf of the Customer in accordance with the relevant Agreed Signing Arrangement and/or (where applicable) any Authorized Person on behalf of the Customer; and
(g)  the Customer is fully aware that the Customer may be affected by any curtailment of, or restriction on, the capacity of the Bank to trade in respect of open positions as a result of action taken by the Securities and Futures Commission under applicable rules and regulations or for any other reason, and that in such circumstances, the Customer may be required to reduce or close out the Customer's positions with the Bank.
13.    Liability of the Bank

13.1   In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any failure or delay in receiving any of the Customer's Instructions or orders relating to FX Transactions, including but not limited to as a result of the breakdown or failure of transmission or communication facilities maintained by the Bank or otherwise.

13.2   In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any loss or damage suffered by the Customer or any other person as a result of:
(a)  the withdrawal or suspension of any FX Transaction and/or Instruction of the Customer or for any failure to effect or execute any FX Transaction where it is attributable, either directly or indirectly, to any circumstances or events outside the control of the Bank or it would, or might, in the Bank's sole opinion, constitute a breach or violation of any Applicable Regulations or any economic or trade sanctions imposed by any Authority; and/or
(b)  any mechanical, electronic or other failure or inadequacy of the Bank's telecommunications and/or computer system or its installation or any incomplete or erroneous transmission of any Instruction of the Customer or any error in the execution of any FX Transaction nor for any delay, loss (including loss of profit or any economic loss), expenses or damages whatsoever incurred or suffered by the Customer as a result thereof.

14.   Indemnity

In the absence of wilful misconduct or negligence by the Bank, the Customer shall indemnify and keep the Bank fully indemnified from and against all loss, damages, expenses (legal or otherwise), actions, demands, claims, proceedings whatsoever which the Bank may incur, suffer and sustain as a result of or arising from any Termination Event and the exercise by the Bank of any right as a result thereof or the Bank's entering into or performance of any FX Contract provided that the Customer's indemnity shall only cover reasonable expenses (legal or otherwise) reasonably incurred by the Bank.

15.    Rights of the Bank

Without prejudice and in addition to any other rights of the Bank, the Bank shall have the right to take whatever action in the markets as the Bank may deem necessary for its own protection without notice to the Customer, including without prejudice to the generality of the foregoing the right to hedge its position under any FX Contract in the markets.

16.     Dormant Account

16.1   If no FX Transaction has been effected by the Customer in the FX Margin Trading Account for a continuous period of two years or such other period as the Bank may determine from time to time and the Cash Margin maintained in that Account is determined absolutely by the Bank as minimal or negligible, the Bank shall be entitled to levy such amount of handling charges as the Bank deems fit on the FX Margin Trading Account upon not less than 30 days' prior written notice to the Customer.  If the Account continues to be inactive and the balance of such Account subsequently falls to zero, the Bank is entitled to close such Account upon reasonable notice to the Customer.

16.2   If no FX Contract is outstanding in the FX Margin Trading Account and the Cash Margin is equal to nil for a period of or longer than one year, the Bank shall be entitled (but not obliged) to close the FX Margin Trading Account upon not less than 30 days' prior written notice to the Customer.

17.     Bank's employees

17.1   The Customer shall not appoint any of the Bank's employees or representatives to act as agent or the Authorized Signatory(ies) of the Customer to operate the FX Margin Trading Account on behalf of the Customer, and none of the Bank's employees or representatives shall accept such appointment.
17.2   No employee or representative of the Bank may enter into any leveraged foreign exchange dealings on his own account with the Bank.
17.3   The Bank shall enter into FX Contracts with the Customer as principal only on the terms and conditions of the Terms and Conditions (including this Schedule) and the Agreement.  The Customer acknowledges that the Bank will take an opposite position to the Customer in respect of all or any FX Contracts.

18.    Rebate and Commission

Subject to Aplicable Regulations, the Customer agrees that the Bank may accept and retain for its own account and benefit absolutely, all profits, rebate, brokerage, commission, fee and benefit or other advantage, if any, arising out of or in connection with the Bank's entering into FX Transactions with the Customer.

 

SCHEDULE III

Transactions effected in connection with Securities (other than Investment Products) are subject to the following terms and conditions:

1.      Definitions and Interpretation


1.1    In this Schedule III, except where the context otherwise requires:
"Appointed Depository" means a nominee of HKSCC or such other person whether appointed by HKSCC or otherwise which performs or assists in performing the depository, custodian and/or nominee services in respect of the Eligible Securities.
"CCASS" means the Central Clearing and Settlement System established and operated by HKSCC.
"Eligible Securities" means Securities deposited by the Customer with the Bank for safe custody and placed by the Bank in CCASS or held by the Appointed Depository as sub-custodian or agent of the Bank.
"Exchange" means The Stock Exchange of Hong Kong Limited or any organization which is permitted to operate or not prevented from operating in a country or territory outside HKSAR by the laws of that country or territory and provides for the establishment, operation and management of a stock market.
"HKSCC" means Hong Kong Securities Clearing Co. Ltd.
"Registered Securities" means Securities deposited by the Customer with the Bank for safe custody and registered in the name of the Bank's nominee.
"Relevant Securities" means any Eligible Securities and/or Registered Securities.
"Securities Account" means an account opened and maintained in the name of the Customer for the purpose of Transactions relating to Securities.  For the avoidance of doubt, the Securities Account is a Designated Account .
"Stock Broker" means any stock broker, underwriter, dealer or agent selected by the Bank for effecting or implementing any orders or Instructions for the Transactions relating to Securities on behalf of the Customer.
1.2     Unless otherwise stated, reference to Paragraphs means the paragraphs of this Schedule III and reference to Clauses means the clauses of Part A.

1.3     Unless otherwise provided or unless there is something in the subject or context inconsistent therewith, all the words and phrases defined in Part A shall have the same meanings in this Schedule III. For the avoidance of doubt, reference to "Securities" in this Schedule III shall exclude Investment Products which shall be governed by Part C.

2.      Duties

2.1     The duties of the Bank are limited to those expressly set out in this Schedule III.

2.2     For all Transactions relating to Securities under the Securities Account, the Bank is only acting as the agent of the Customer and nothing herein contained shall constitute the Bank or its nominee as trustee for the Customer nor constitute a partnership between the Bank and the Customer.

3.      Powers and Rights Generally

3.1     The Customer hereby expressly agrees and acknowledges that notwithstanding the Bank's duties in acting as the agent of the Customer as herein set out, the Bank shall have the absolute and unfettered right and discretion at any time without giving any reason therefor not to effect as the agent of the Customer any Transaction relating to Securities.
3.2     The Bank shall have the absolute unfettered right and discretion to select which Stock Broker or nominee should be engaged for effecting or implementing Instructions for any Transaction relating to Securities whether or not the Bank has any interest (whether directly or indirectly) in such Stock Broker or nominee. In this respect, in the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable to the Customer for having made such selection should the Customer suffer any loss or damage of whatever nature as a result or in connection with any act or omission of the relevant Stock Broker or nominee.
3.3     Any of the Bank's orders or instructions to any Stock Broker or nominee may be given in the name of the Customer or in the Bank's own name as the Bank may in its absolute unfettered discretion think fit and may be lumped together with instructions or orders of the Bank's other customers.
3.4     The Bank may engage any Stock Broker or nominee on any terms and conditions and subject to such exemptions as the Bank may in its absolute unfettered discretion determine and the Bank shall not be required to disclose to the Customer the terms and conditions of the Bank's contract with the Stock Broker or nominee and the same shall be binding on the Customer. The Customer expressly agrees and acknowledges that, in the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable to the Customer for any loss or damage arising out of the selection of the Stock Broker or nominee and the negotiation of the terms with the Stock Broker or nominee.
3.5     Subject to Applicable Regulations, the Bank shall be entitled to accept and receive for the Bank's own use and benefit absolutely rebate, benefit, allowance of brokerage or commission and/or any other advantage for all transactions effected (including but not limited to any sale, purchase, subscription and/or dealing howsoever of Securities) for the Customer from any Stock Broker engaged therefor.
3.6     Notwithstanding any other provisions in this Schedule III, the Customer acknowledges that due to market conditions, Instructions in connection with Securities may not be able to be effected or carried out by the Bank and/or the Stock Broker. Where orders of the Customer, for example, are aggregated with those of the other customers of the Bank (including, but not limited, to a placement of Securities), the Bank shall allocate such contracts so effected among its customers in a fair manner subject to Applicable Regulations. For the avoidance of doubt, the Customer expressly declares that the Bank's allocation of contracts aforesaid shall be final and conclusive and binding on the Customer.
3.7     The Bank or its nominee may refrain from doing anything which would or might in its/their opinion be contrary to any Applicable Regulations or otherwise render the Bank or its nominee liable to any person and may do anything which is in its/their opinion necessary to comply with any such Applicable Regulations.
3.8     The Bank or its nominee may refrain from taking any step (or further step) to protect or enforce the rights of the Customer under any Transaction relating to Securities effected by the Bank on behalf of the Customer or under any of the Relevant Securities until the Bank or its nominee has been indemnified and/or secured to its/their reasonable satisfaction against any and all costs, losses, expenses or liabilities (including legal fees on a solicitor and own client basis) which the Bank or its nominee would or might sustain or incur as a result.
3.9     The Bank may rely on any communication or document believed by the Bank to be genuine and/or not inconsistent on the face of it and the Bank is entitled to reject any document which, on the face of it, is not regular, valid and/or acceptable in accordance with prevailing market practice.
3.10   The Bank is authorized to perform any of its duties under this Schedule III by or through its personnel, agent or nominee.
3.11   The Bank shall be entitled to sell or dispose of the Relevant Securities for any or all of the purposes permitted by Applicable Regulations.
3.12   The Bank will not without the written authority of the Customer:

(a)  deposit the Relevant Securities with any person as collateral for an advance or loan made to the Bank, or with a clearing house as collateral for the discharge of the Bank's obligations under the clearing system; or

(b)  without prejudice to Paragraph 3.11 above, deposit, transfer, lend, pledge or otherwise deal with any of the Relevant Securities;

         provided that any such authority from the Customer (if any):

(i)   will be effective for a period of up to 12 months and may be renewed for subsequent periods of up to 12 months each, either:

(1)  with the Customer's written consent; or
(2)  without further action on the part of the Customer, and for such a period (not exceeding 12 months) as the Bank may stipulate, where the Bank has given to the Customer written notice of such renewal at least 14 days prior to the expiry of the authority, and the Customer does not object in writing to such renewal before the expiry of the then existing authority; and

         (ii)   may be revoked by the Customer at any time upon written notice to the Bank in the manner referred to in Clause 11.7.


3.13   Subject to Applicable Regulations, an Instruction in connection with Securities in large quantities (as from time to time determined by the Bank) may be split into more than one Instruction and be effected at different times subject to conditions in Paragraph 5.4 being met. The Customer expressly declares that the Bank’s allocation aforesaid shall be final and conclusively binding on the Customer.

4.      Exoneration

 

4.1     In the absence of wilful misconduct or negligence by the Bank, the Bank or its nominee shall not be responsible for the adequacy, accuracy or completeness of any representation, warranty, statement or information in any document or instrument relating to the Relevant Securities or any Transactions relating to Securities or any notice or other document or instrument delivered through the Bank to the Customer.

4.2     In the absence of wilful misconduct or negligence by the Bank, the Bank or its nominee shall not be responsible for the execution, delivery, validity, legality, adequacy, enforceability or admissibility in evidence of any of the Relevant Securities or any Transaction relating to Securities.

4.3     The Bank or its nominee shall not be under any obligation other than those for which express provisions are made in this Schedule III and, without prejudice to Clause 15.2, in the absence of wilful misconduct or negligence by the Bank, the Bank or its nominee shall not be liable for anything done or not done by it/them under or in connection with this Schedule III.

4.4     The Customer confirms that the Customer has been and will at all times continue to be responsible for (a) making his own investigation and appraisal of the business, operations, financial conditions, credit-worthiness, status and affairs of the company or body whose Securities the Customer intends to deal with; and (b) making his own decision in respect of any or all Transactions relating to Securities.

4.5     In respect of the Registered Securities, the Bank or its nominee shall have no duty or responsibility:
(a)  except if the Customer has selected otherwise in the Agreement or any other document acceptable to the Bank, to forward notices and communications received to the Customer or for any failure to inform the Customer of any matters referred to in any such notice or other communications;
(b)  to seek Instruction from or inform the Customer with respect to or for taking any action concerning calls, conversions, offers, redemption, dividends, coupons, payments, or any similar matters; and
(c)  to send proxies received by the Bank in respect of the Registered Securities or give any notice of the receipt of such proxies to the Customer.

4.6     Notwithstanding the provision in Paragraph 4.5 above, the Bank or its nominee shall not be precluded from acting in its/their absolute and unfettered discretion as regards attendance at meetings or voting in respect of any of the Registered Securities or as regards any subscription, conversion or other rights in respect thereof or as regards any merger, consolidation, reorganization, receivership, bankruptcy or insolvency proceedings, compromise or arrangement or the deposit of any of the Registered Securities in connection therewith or otherwise, nor shall the Bank or its nominee be under any duty to investigate or participate therein or take any affirmative action in connection therewith except in accordance with written instructions from the Customer and upon such conditions, indemnity and provision for expenses as the Bank may require.

4.7     For Eligible Securities, the Bank or its nominee may be appointed as proxies or representatives for the purpose of attending and voting at meetings of holder of such Eligible Securities or other similar purposes and instructions with regard to the exercise of rights or entitlements accruing to such Eligible Securities or to participate in other actions, transactions or matters affecting such Eligible Securities may be sought from the Bank or its nominee. The Customer shall be notified of such rights, entitlements or in respect of any matter which affects the Eligible Securities to which the Customer is entitled and unless clear Instruction is received by the Bank within the time prescribed by the Bank in such notice, the Bank shall be entitled not to give any effect to the Instructions and take or abstain from taking such action as the Bank may consider appropriate or desirable in its absolute discretion.

4.8     Without prejudice to Clause 15.2, in the absence of wilful misconduct or negligence by the Bank, the Bank or its nominee shall not be liable in respect of any loss or damage suffered by the Customer including but not limited to any deduction (by way of taxation or otherwise) from any funds or payments received whether or not due to or arising out of the handling or dealing by the Bank or its nominee with the Relevant Securities or any Transaction relating to Securities.

4.9     The Customer acknowledges that the stock price information quoted for the Service relating to the Securities is provided by The Stock Exchange of Hong Kong Limited or such other information providers as selected by the Bank. Whilst every effort will be made to ensure the accuracy and reliability of the information provided, the Bank and The Stock Exchange of Hong Kong Limited and/or other information provider(s) do not guarantee its accuracy or reliability and accept no liability for any loss or damage arising from any inaccuracies or omissions.

5.      Transactions relating to Securities Generally

5.1     The Bank will keep separate Securities Account for each customer.  All Transactions relating to Securities under the provisions of this Schedule III shall be effected under the Securities Account.  The Bank will also keep record of the Securities and cash balances from time to time held by the Bank for the Customer under the Securities Account.

5.2     Instructions in respect of the Relevant Securities or the Transactions relating to Securities may be given by the Customer in the manner(s) prescribed by the Bank from time to time.  Instructions which have not been effected (as conclusively determined by the Bank) may be amended but in the manner(s) and subject to conditions prescribed by the Bank from time to time.  Where Instructions are given in writing, it should be in such form and manner prescribed by the Bank from time to time and duly signed as per the applicable Agreed Signing Arrangement and will only be valid and effective if received by the Bank within the Business Hours.

5.3     Save as herein specifically provided otherwise, all Transactions relating to Securities under the Securities Account shall be subject to the prevailing market practice of the Exchange where the Transaction is conducted and the relevant provisions of the constitution, rules, regulation, bye-laws, orders, directions, practice notes, customs and usage of the relevant Exchange, its clearing and settlement system and of the laws of the relevant jurisdiction as amended from time to time.

5.4    All Instructions for effecting Transactions relating to Securities which are:

(a)  at the available market price, shall be at the price or prices obtainable by the Stock Broker at the stock market; and

(b)  at a set price or for a limit, shall be at the price set or at the limit and above for selling Securities and at the price set or at the limit and below for buying Securities, and Instructions will not be effected if the foregoing conditions, as the case may be, cannot be attained.

5.5    Unless duration of an Instruction is specified, an Instruction for effecting Transactions relating to Securities not executed or in case of partial execution, for such part thereof not executed, shall automatically lapse and be of no effect by the end of the Business Day on which the Instruction is given.

5.6    Pursuant to Paragraph 3.6 above, Instructions for effecting Transactions relating to Securities of a specified quantity may be partially executed. Such portion executed shall be binding on and be accepted by the Customer and the portion not executed shall automatically lapse and be of no effect as provided in Paragraph 5.5 above.

6.      Selling Securities

6.1     Instructions for selling Securities on behalf of the Customer under the Securities Account will only be accepted if at the time of giving such Instructions:

(a)  the Customer has deposited the relevant Securities with the Bank under the Securities Account; and/or

(b)  the Customer has duly signed or caused to be signed the instrument of transfer and sold notes or duly endorsed such other documents or evidence of title relating to such Securities.
6.2     Without prejudice to the Bank's overriding right to terminate any and all Services to the Customer at any time immediately and without notice under Part A of these Terms and Conditions, if the Customer has not observed Paragraph 6.1 above, the Bank shall upon receipt of the Instruction concerned be entitled to earmark or hold a sum against the credit balance and/or available pre-arranged credit in the Securities Account up to 50% or any percentage of the value of the sale order (as estimated by the Bank in its absolute discretion) as may be agreed between the Bank and Customer, until (a) the Securities have been deposited or transferred to the Bank; or (b) the Bank's actual receipt of the confirmation from the Stock Broker that the order cannot be effected. Notwithstanding this Paragraph, the Bank shall be entitled not to effect the Instruction concerned.

6.3     In effecting any Instruction for selling Securities on behalf of the Customer, the Bank is authorized to appropriate, withdraw and/or apply the relevant quantity of the appropriate Securities from the pool of Securities of the Customer deposited with the Bank under the Securities Account (including the Registered Securities and/or the Eligible Securities, as the case may be) so as to enable the Bank to complete the sale of Securities as instructed.

6.4     The net proceeds of sale after deducting all stamp duty and Exchange levies and all reasonable brokerage, commission, fees and expenses reasonably incurred by the Bank in selling the relevant Securities as instructed shall first be applied towards payment and discharge (whether in full or partially) of all indebtedness (if any) due and owing to the Bank under the Terms and Conditions and the surplus (if any) shall be credited into the Securities Account.

7.      Buying Securities


7.1     Immediately upon the receipt of an Instruction for buying Securities (which includes application for new issue of Securities) under the Securities Account, the Bank shall be entitled to earmark or hold a sum against the credit balance and/or available pre-arranged overdraft facilities in the Securities Account for the full amount of purchase or subscription price of the Securities or such amount as the Bank may from time to time in its absolute discretion think fit until the Bank's actual receipt of the confirmation from the Stock Broker that the order cannot be effected in full or where pursuant to Paragraph 3.6 above, only part or parts of the Instructions of the Customer is/are effected, or, where application for new issues is concerned, the application is not successful in its entirety or due to over-subscription of the new issue, only part of the application is successful then the Bank may release such sum earmarked or held by the Bank which are in excess of the cost of the Securities purchased or subscribed Provided Always That if at the time of giving Instruction the available fund denominated in the currency of the purchase or subscription price and pre-arranged overdraft facilities in the Securities Account are not sufficient to meet the aforesaid liabilities, the Bank shall be entitled not to accept, entertain, carry out, effect or implement the Instructions concerned.

7.2     Immediately upon receipt of confirmation from the Stock Broker that Instructions for buying Securities or subscribing for Securities have been effected or where the contract cannot be fully effected, immediately upon the Bank's allocation of the Securities to the Customer pursuant to Paragraph 3.6 above, the Bank shall be entitled to debit the entire amount payable for such purchase or subscription (including but not limited to the purchase price, all stamp duty, tax or levy incurred, and all reasonable fees, expenses or commissions reasonably incurred by the Bank) from the Securities Account.

7.3     The Bank shall only be liable to make ready for collection by the Customer at the Bank's branch/sub-branches/offices where the buying Instruction was made the relevant scrip and/or documents for the Securities purchased upon the Bank's receipt of the same from the Stock Broker and in the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any delay or default of such agent(s) or broker(s).

7.4     For Securities other than Eligible Securities, unless otherwise agreed, if the Customer neglects or fails to collect the relevant scrip and/or documents for the Securities purchased for the Customer within 7 days from the date of the Customer giving the Instructions to the Bank, the Bank is authorized to transfer such Securities under the Securities Account into the name of the Bank's nominee for account of the Customer without prior notice to the Customer and all reasonable costs and expenses reasonably incurred relating to such transfer and safe custody shall be borne and paid by the Customer in full to the Bank.

7.5     The Customer hereby confirms that in the absence of his Instruction to the contrary, the Bank shall be authorized (but not obliged) to deposit in CCASS all Eligible Securities (that remain in scrip form) acquired and to be acquired from time to time by the Bank under the Securities Account for the account of the Customer.

8.      Safe Custody of Securities

8.1     All Securities registered in the name of the Customer or third party and deposited (from the Customer or direct from the issuer or any third party for the account of the Customer) with the Bank for safe custody under the Securities Account shall be governed by the following provisions:

(a)  Such Securities are held by the Bank as custodian of the Customer for safe-keeping. The Bank shall be entitled to deposit such Securities with itself or with such other institution which provides facilities for the safe custody of documents (in the case of Securities in HKSAR, such institution shall be acceptable to the Securities and Futures Commission as a provider of safe custody services) on such terms as it may deem fit.

(b)  The Customer agrees that such Securities deposited with the Bank may be treated by the Bank as fungible and can be pooled with the Securities of the Bank's other customers and that at any time the Bank may at its absolute and unfettered discretion allocate specific Securities to the Customer, which allocation shall be conclusive and binding on the Customer.

(c)  The Customer agrees that such Securities deposited with the Bank shall be at the sole risk of the Customer and in the absence of wilful misconduct or negligence by the Bank, the Bank's liability for any loss or damage suffered by the Customer shall be limited to the extent stated in Paragraph 14 below.

(d)  The Customer shall pay to the Bank on demand all custodian fees as the Bank may from time to time determine together with all reasonable costs, expenses and disbursements reasonably incurred by the Bank in connection with the Bank's performance of the duties in this Schedule III. The custodian fees and other charges are set out in schedule(s) of fees/charges published by the Bank from time to time and shall be made available to the Customer at any time upon request.  The Bank shall have right to debit such costs, expenses and disbursements from any account(s) of the Customer without prior notice to the Customer.

(e)  For Securities other than the Relevant Securities, the Customer agrees to give to the Bank such prior written notice as may be prescribed by the Bank for any withdrawal of such Securities deposited with the Bank and such withdrawal shall be effected at the Bank's branch/sub-branches/offices where the Securities Account is opened.

(f)   For withdrawal of the Securities concerned, the Customer shall complete such form(s) as required by the Bank and sign the form(s) as per the applicable Agreed Signing Arrangement(s) and delivery by the Bank of the Securities concerned to any person instructed by the Customer shall absolutely discharge the Bank from all liabilities therefor Provided Always That notwithstanding the above, (i) the Customer may instruct the Bank to sell the Securities concerned subject to this Schedule III without completing and signing the required forms; and (ii) the Bank reserves the right to request the Customer or any of them to be personally present for withdrawal.

(g)  The Customer acknowledges that Eligible Securities may be withdrawn by his instructing that such Securities be transferred to an account of another CCASS participant. The Customer is deemed to have withdrawn the Eligible Securities upon execution by the Bank of such Instructions for the Eligible Securities to be transferred and the Bank shall not be under any duty to ensure that such Eligible Securities have been received by the CCASS participant named by the Customer or to confirm with such participant that the same is to hold the Eligible Securities to the order of the Customer.
8.2     The Customer acknowledges that the Eligible Securities held in CCASS or by an Appointed Depository may be held in the form deposited or may be registered or re-issued in the name of HKSCC or an Appointed Depository or its nominee.  The Bank is further authorized to enter into such other arrangement or agreement with HKSCC relating to the custody, settlement and/or clearance of the Eligible Securities as the Bank may in its sole discretion consider appropriate and the Customer agrees to abide by and be bound by such arrangement or agreement.

8.3     Notwithstanding anything herein contained to the contrary, withdrawal of Eligible Securities from CCASS or an Appointed Depository via HKSCC shall be subject to the rules and regulations of HKSCC and/or the relevant Appointed Depository relating to the withdrawal of Eligible Securities.  For withdrawal of Eligible Securities in registered form, the Customer may, subject to the availability of the type and quantity of certificates requested, elect to withdraw either new certificates or old certificates and the withdrawal of such certificates shall be in board lots or such other denominations as may be specified by HKSCC or the Appointed Depository concerned.  For withdrawals of Eligible Securities other than in registered form, withdrawal shall be in such denominations as may be prescribed by HKSCC or the Appointed Depository concerned.

8.4     Any Securities deposited with the Bank (by the Customer or from the issuer or third party for the account of the Customer) may be registered in the name of the Bank's nominee, or in the case of Eligible Securities, may be held in the name of HKSCC, an Appointed Depository or its nominee.  If so registered or held, such Securities shall be governed by the following provisions:
(a)  Such Securities shall in all respects be deemed deposited with the Bank and held by the Bank for the account of the Customer.
(b)  Save where not applicable or inconsistent with the provision of this Paragraph 8.4, the provision of Paragraph 8.1 shall apply to such Securities.
8.5     For all Securities deposited with the Bank under the Securities Account which are not registered in the name of the Customer:

(a)  The Bank or its nominee is/are authorized:        

(i)   to collect on behalf of the Customer dividends, interest and other payments of income or capital in respect of the Securities and to credit the same after deduction of all reasonable fees, costs and expenses reasonably incurred therewith into the Securities Account;

(ii)   to take such action at the costs and expenses of the Customer when the Bank or its nominee deems appropriate to effect the collection mentioned in Sub-paragraph (i) above;

(iii)  to surrender any of the Securities against receipt of the monies payable at maturity or on redemption if called prior to maturity, provided that where the Securities are called for redemption prior to maturity the Bank or its nominee shall have no duty or responsibility to present the Securities for redemption, unless after notification by the Bank that the call is made, the Customer requests the Bank in writing so to do;

(iv)  where monies are payable in respect of any of the Securities in more than one currency, to collect them in such currency(ies) as the Bank may in its absolute discretion determine;

(v)   if required by the laws governing the Securities or the laws governing the operation of the Bank or its nominee, to complete and deliver on behalf of the Customer as owner thereof any ownership certificates, declaration or information in connection with the Securities;

(vi)  in its/their absolute discretion, to comply with the provisions of any law, regulation or order now or hereafter in force which purport to impose on a holder of any of the Securities a duty to take or refrain from taking any action in connection with any of the Securities payments or distributions or monies payable in respect of any of such Securities; and

(vii) to exchange any of the Securities in interim or temporary form for Securities in definitive form.

(b)  Any rights issue arising from any of the Securities shall be dealt with in the following manner:

(i)   The Bank or its nominee will within a reasonable time after receipt of the relevant rights issue documents inform the Customer;

(ii)   If the Customer fails to instruct the Bank within the time prescribed by the Bank to reply:

(1)  where the rights issue is not obligatory, it shall be conclusively deemed that the Customer has irrevocably renounced all his rights and entitlements regarding such rights issue in favour of the Bank for its own use and benefit absolutely and the Bank is entitled to deal with such rights issue in its own right and for its own benefit in whatever manner it deems fit without having to account to the Customer for the profits (if any); and

(2)  where the rights issue is obligatory, the Bank is entitled at its absolute discretion either to realize part of the Securities deposited to raise sufficient moneys to pay for the subscription of such obligatory rights issue or to pay on behalf of the Customer for such subscription, the payment of which shall be an advance of money to the Customer and secured by the Securities deposited and shall be repayable by the Customer on demand, together with interest thereon at the rate and calculated in the manner as reasonably determined by the Bank and the Securities deposited may be applied by the Bank towards such payments as well;

(iii)   If the Customer shall instruct the Bank to take up the rights issue by subscribing the requisite shares, the Bank is not obliged to do so unless and until sufficient immediate available funds have been received by the Bank within the time limit as set out in Sub-paragraph (ii) above and in default thereof, the provisions of Sub-paragraph (ii) above shall apply as if the Customer has failed to instruct the Bank in time; and

(iv)   All shares allotted pursuant to the rights issue taken up by or on behalf of the Customer (but excluding those which the Customer has renounced in favour of the Bank) shall form part of the Securities deposited with the Bank.

(c)  The Customer must give to the Bank such prior written notice as may be prescribed by the Bank to withdraw any or all of the Relevant Securities provided always that:

(i)   where any such Securities are in the course of being processed for transfer to and registration in the name of the Bank's nominee or has been submitted for registration or reissue in the name of HKSCC or its nominee or in the name of an Appointed Depository or its nominee, the Customer shall have no right to withdraw such Securities until the same have been received by the Bank's nominee after due registration or the same have become available for withdrawal from HKSCC or the Appointed Depository concerned;

(ii)   withdrawal of Registered Securities of any class shall be in multiples of the lowest denomination (whether in board lots or otherwise) of Securities of that class and shall be effected at the Bank's branch/sub-branches/offices where the Securities Account is opened;

(iii)  the Customer is not indebted to the Bank; and

(iv)  the Bank shall have no duty or responsibility to return to the Customer Relevant Securities bearing serial numbers identical to those delivered to the Bank so long as the Relevant Securities returned are of the same class, denomination and nominal amount and rank pari passu with those originally accepted by the Bank, subject always to any capital reorganization which may have occurred in the meantime.

8.6     For Securities deposited with the Bank under the Securities Account which have been deposited with an Appointed Depository, any dividend or other distributions or benefits which accrue in respect of such Securities shall upon receipt by the Bank be credited to the Securities Account (or as otherwise, directed by the Customer in writing and agreed by the Bank). Such benefit shall be shared on a pro-rata basis by reference to the proportion of the total number or amount of Eligible Securities held by the Bank on behalf of the Customer under the Securities Account and deposited into the Appointed Depository to the total number or amount of Eligible Securities held by the Bank for all its customers and deposited into the Appointed Depository.

8.7     For all Securities deposited with the Bank for safe custody under the Securities Account, whether such Securities are registered in the name of the Customer or the Bank's nominee or otherwise and whether such Securities are held in CCASS or otherwise, the following provisions shall apply:

(a)  If for any reason whatsoever any certificates for the Securities are lost, in the course of being deposited with or withdrawn from any depository, the Customer shall, and shall procure its nominee to, assist in reporting the loss and obtaining replacement certificates for the Securities as the Bank may reasonably request.  In the absence of wilful misconduct or negligence by the Bank, if the Customer or its nominee fails to do so, the Bank shall not be responsible to the Customer for any loss or damage suffered by the Customer in relation to the lost Securities and in any event the Bank's liability shall be limited to the extent stated in Paragraph 14 below.

(b)  If the Customer fails to collect any certificates for Securities, the Bank shall be entitled to (i) redeposit the certificates with a custodian, and the Customer shall pay to the Bank all reasonable fees, charges and expenses reasonably incurred by the Bank, or (ii) send the certificates by prepaid ordinary/registered post or such other means as the Bank may deem fit to the last known Correspondence Address or Account Address of the Customer, in which case the certificates shall be deemed to have been duly returned to and received by the Customer.

9.      Written Notification

Upon conclusion of any Transaction relating to Securities under this Schedule III, the Bank will send an Advice to the Customer in accordance with Clause 5.1. Save where not applicable or inconsistent with the provisions of this Paragraph, Clause 5 shall apply to the Advice so given.

10.     Acknowledgment and Covenants

10.1   The Customer hereby expressly acknowledges and agrees that due to market conditions, the Bank and/or the Stock Broker concerned may not be able to obtain the best available price for the Customer whether for selling or buying.
  
10.2   The Customer shall reimburse the Bank in full with or without demand and without deduction or set-off as and when the Bank has placed instructions in respect of Transactions relating to Securities with any Stock Broker for all reasonable expenses (including stamp duties, transaction levies of whatever nature or any other tax) reasonably incurred for the Transaction and for all reasonable fees, commission, brokerage and expenses as agreed between the Bank on behalf of the Customer and such Stock Broker and the Bank shall be entitled to debit the same to any Account of the Customer with the Bank whether of savings, current, fixed deposit (matured or not yet matured) or deduct the same from the proceeds, if any, of the Transaction effected.

10.3   The Customer undertakes and agrees to pay the Bank's reasonable agency service charges/fees for transacting on behalf of the Customer Transactions relating to Securities and/or the Bank's reasonable custodian charges/fees for safe keeping of Securities as specified in any schedule of fees/charges made available by the Bank to the Customer by any one of the means mentioned in Clauses 11 as reasonably determined by the Bank from time to time. Such schedule of fees/charges will also be made available to the Customer at any time upon request.

10.4   The Customer shall upon request perform such acts and sign and execute all such agreements, proxies, authorities or documents whatsoever as may be reasonably required by the Bank for the performance or implementation of their duties and/or the exercise of its rights under the Terms and Conditions.

10.5   The Customer hereby expressly agrees that the Bank, its nominee or any Stock Broker may, if requested by the Exchange or such other regulatory or supervisory authority, provide details of any Transaction relating to Securities and/or any other information, documents, transactions relating thereto or therefor, in order to assist the Exchange or the relevant regulatory or supervisory authority with any investigation or enquiry being undertaken.

10.6   The Customer hereby expressly acknowledges and agrees that where the dividends of the Relevant Securities is payable in a currency other than Hong Kong Dollars and the Customer does not hold such foreign currency account to receive the dividends, the Bank is authorized to convert the amount of the dividends from such foreign currency into Hong Kong Dollars at the prevailing market rate of exchange as the Bank determines and credit the same after deduction of all reasonable fees, costs and expenses reasonably incurred therewith into the Securities Account, such determination shall be conclusive and binding on the Customer. The Customer acknowledges and agrees that any loss and/or reasonable costs arising from such conversion will be borne by the Customer.

11.     Representations and Warranties

11.1   The Customer represents and warrants to the Bank that:

(a)  subject to any rights or interests that the Bank may have in such Securities, the Customer has unencumbered and absolute beneficial title to all Securities deposited with the Bank whether for safe custody, selling or otherwise, which are free and clear of and not subject to any charge, lien, trust, negative pledge or other adverse interest and claim and all such Securities are regular, valid and acceptable in accordance with the prevailing market practice and in the absence of wilful misconduct or negligence by the Bank, the Customer shall indemnify the Bank against all claims and liabilities, losses or damages which the Bank may suffer or sustain in handling such Securities;
(b)  all such Securities are fully paid and that there are no moneys or liabilities outstanding or payable in respect of such Securities; and
(c)  the representations and warranties set out in this Paragraph 11 shall be deemed repeated and given by the Customer in respect of such further Securities deposited with the Bank on each and every subsequent occasion.

12.     Cash Balances held under the Securities Account


12.1   At the Bank's absolute discretion, the outstanding cash balances (whether in credit or debit) under the Securities Account may be denominated in such different currencies as the Bank may deem fit from time to time.  The Bank may (but shall not be obliged to) allow the cash balances to go into debit up to such extent as the Bank may in its absolute discretion deem fit from time to time.

12.2   Interest may be earned on the outstanding cash credit balances at such rate(s) and payable at such intervals as specified in the relevant schedule of charges and/or interest published by the Bank from time to time and to be made available to the Customer upon request, provided however that the Bank shall not be obliged to pay any interest on any cash credit balances.  In addition, the Bank may impose charges on and deduct the same from the credit balances provided that not less than 30 days' prior notice will be given to the Customer when such a charge accrues for the first time.

12.3   Any cash debit balance shall be payable by the Customer in the relevant currency on demand and the Bank may charge interest on such debit balance from the date of advance to the date of actual repayment (before and after judgment) at the rate of 9% per annum over the best lending rate as conclusively quoted by the Bank from time to time and compounded at such intervals as the Bank may reasonably determine from time to time.

12.4   Any sum due and payable by the Customer to the Bank under this Schedule III may, in the Bank's absolute discretion, be debited to the cash balances under the Securities Account without the prior consent from or notice to the Customer, notwithstanding that in doing so, a debit cash balance will be created or the amount of the relevant debit balance will be increased.

13.     Deposit and Withdrawal of Cash Balances


13.1   The Customer undertakes to pay and maintain sufficient cleared and immediately available funds into the Securities Account in such manner as specified by the Bank from the time to time for the purpose of the Transactions relating to Securities.  In case of insufficiency of the cleared and immediately available fund in the required currency(ies) held in the Securities Account at the time when the Instruction is given, the Bank is at liberty to refuse to carry out such Instruction without notice to the Customer.

13.2   In relation to any Instruction for buying Securities (which includes, without limitation, application for new issues of Securities), the Customer may (subject to the Bank's agreement) authorize the Bank to do the following acts whenever in the Bank's absolute discretion there are insufficient funds in the Securities Account to carry out the Instruction:

(a)  to earmark or hold a sum against the credit balance in the Related Account designated by the Customer for such purpose in such amount as the Bank may in its absolute discretion estimate to be the full amount of the purchase or subscription price of the Securities, the relevant fees and expenses and all moneys owing by the Customer to the Bank in respect of the Securities Account (if any) less the available cash credit balance in the Securities Account;

(b)  to transfer the amount referred to in paragraph (a) above to the Securities Account to be earmarked for the Instruction; and
(c)  to debit from the Securities Account the entire amount payable for the purchase or subscription of all or any Securities (including all fees and expenses incurred) and all moneys owing by the Customer to the Bank in respect of the Securities Account (if any).
The Customer agrees that if for whatever reasons (i.e. technical problem in the Bank's system):
(i)   the Bank is unable to carry out the transfer and the debit respectively referred to in paragraphs (b) and (c) above during the day on which the Instruction is received from the Customer, the Bank shall be entitled to carry out such transfer and debit on the next Business Day (subject to changes by the Bank from time to time); and
(ii)   the Instruction cannot be effected or only part of the Instruction can be effected, the Bank shall be entitled to release the sum earmarked or held under paragraph (a) above or the remaining balance thereof (as the case may be) on the next Business Day (subject to changes by the Bank from time to time) following the day on which the Transaction would otherwise settle.

13.3   The Customer may withdraw credit cash balances held in the Securities Account by transferring the fund to the Related Account or by such other means as the Bank may in its absolute discretion agree from time to time.  Notwithstanding this, the Bank shall only comply with the withdrawal Instruction if there is sufficient cleared fund in the Securities Account, after deducting therefrom all amounts that the Bank is entitled to hold or debit.

13.4   The Customer may (subject to the Bank's agreement) authorize the Bank to transfer all cash credit balance held in the Securities Account to the Related Account designated for such purpose at midnight on each day (subject to changes by the Bank from time to time).  The Customer agrees that:

(a)  a service fee may be payable by him to the Bank in respect of such authorization and such fee may be debited from the said Related Account; and

(b)  if for whatever reason (e.g. technical problem in the Bank's systems), the Bank is unable to carry out the aforesaid transfer on any day, the Bank shall be entitled to carry out such transfer within the next 5 Business Days.
13.5   The Bank may convert cash balances in the Securities Account into and from any currency at their prevailing market rate of exchange as the Bank determines.  Such conversion may be made for the purpose of any Transaction relating to Securities or for the purpose of set-off among the cash balances denominated in different currencies under the Securities Account.  The Customer acknowledges that any loss or reasonable costs arising from such conversion will be borne by the Customer.

14.     Limitation of Liability, Indemnity and Ratification

14.1   To the extent permitted by Applicable Regulations, the Customer agrees and accepts that in the absence of wilful misconduct or negligence by the Bank, the liabilities of the Bank or its nominee in connection with any of the Relevant Securities and/or any of the Transactions relating to Securities and/or under the Terms and Conditions shall be the par value or the market value of the Securities as may be reasonable in circumstances.

14.2   As a separate and independent obligation hereunder, in the absence of wilful misconduct or negligence by the Bank, the Customer hereby undertakes to indemnify the Bank and keep the Bank fully indemnified from and against all actions, suits, proceedings, claims, demands, losses, damages, costs, fees, expenses and/or liabilities of whatever nature which the Bank may suffer, incur or sustain, whether actual or contingent, by reason, arising out or on account of the Bank's agreeing to act as the agent of the Customer in transacting Transactions relating to Securities and/or to act as the custodian of the Customer for the safe keeping of Securities provided that the Customer's indemnity shall only cover reasonable costs, fees and expenses reasonably incurred by the Bank and the Customer shall pay to the Bank on demand all sums (whether actual or contingent) so suffered, incurred or sustained by the Bank (whose determination shall be conclusive and binding on the Customer) together with interest accrued thereon from the date when the same were first paid or incurred by the Bank until actual payment in full by the Customer (before and after judgment) at the rate of 9% per annum over the best lending rate as conclusively quoted by the Bank from time to time and compounded at such intervals as the Bank may reasonably determine from time to time.

14.3   The Customer hereby undertakes to ratify and confirm everything which the Bank as the agent of the Customer shall do or purport to do pursuant to the Terms and Conditions in transacting Transactions relating to Securities on behalf of the Customer.

15.    Dormant Account

If no Transaction has been effected by the Customer in the Securities Account for a continuous period of two years or such other period as the Bank may determine from time to time and the cash balances maintained in that Account is determined absolutely by the Bank as minimal or negligible, the Bank shall be entitled to levy such amount of handling charges as the Bank deems fit on the Securities Account upon not less than 30 days' prior written notice to the Customer.  If the Account continues to be inactive and the balance of such Account subsequently falls to zero, the Bank is entitled to close such Account upon reasonable notice to the Customer.

16.   Bank's employees

The Customer shall not appoint any of the Bank's employees or representatives to act as the Authorized Signatory(ies) of the Customer to operate the Securities Account on behalf of the Customer, and none of the Bank's employees or representatives shall accept such appointment.

17.   Application for Securities in a public offering

17.1   The provisions in this Paragraph 17 shall apply to any Instruction given by the Customer to the Bank to apply for any Securities in a public offering. In this Paragraph 17, "Offer Documents" means prospectus, supplemental prospectus, instructions and application forms, whether in paper or electronic form, in relation to Securities.
17.2   The Customer confirms that:

(a)  prior to issuing an Instruction for application for any Securities in a public offering, he has been provided with sufficient opportunity to access the Offer Documents and the information disclosed therein and he has read and fully understood the Offer Documents including the relevant risk disclosure statements and has obtained independent professional advice where he considers appropriate;

(b)  an Instruction for application for Securities is based solely on the contents of the Offer Documents and not on any other information including promotional or marketing materials and media coverage;
(c)  if he applies through the Bank's website, he has read and agrees to be bound by all the terms and conditions, instructions, disclaimers and internet privacy statements set out on the Bank's website;
(d)  he is eligible to apply; and
(e)  all information provided by him to the Bank is true and correct and he shall promptly notify the Bank of any change of such information.
The Customer agrees to comply and be bound by the Offer Documents and all application procedures and the Customer agrees that the Bank shall be entitled to disclose any personal information of the Customer to the issuer or seller of the Securities applied for, the relevant share registrar, HKSCC, CCASS, other parties involved and their agents.  The Customer further agrees that if he is applying for Securities together with one or more other persons, the Terms and Conditions shall apply to the Customer and each of such other persons.

17.3   Immediately upon receipt of an Instruction for application for Securities in a public offering through the Securities Account, the Bank shall be entitled to apply for such amount of Securities as the Customer may instruct and to hold on behalf of the Customer the Securities allotted to him.  An Instruction for application for Securities is irrevocable, except in the circumstances (if any) provided in the Offer Documents.  The subscription cost of the Securities and all necessary expenses, including without limitation brokerage commissions, stamp duties, taxes, levies and the Bank's reasonable fees and expenses, may be debited from the Securities Account.  An Instruction may not be acted upon by the Bank if there are insufficient funds in the Securities Account. The Bank will send a confirmation relating to each Instruction in such form and by such means as determined by the Bank from time to time to the Customer no later than the end of the second Business Day after receipt of the Instruction.  The Customer agrees to accept any quantity of Securities allotted by the issuer or seller or the Bank to the Customer.  Any Securities allotted to the Customer will only be credited to the Securities Account after the Bank has actually been credited with or received such Securities.  Any refund due to the Customer will only be credited to the Customer's account after the funds have actually been received by the Bank.

17.4   The Customer authorizes the Bank and/or its nominee on behalf of the Customer:

(a)  to do anything which the relevant Offer Documents require to be done by an applicant;

(b)  to give all undertakings required for the purpose of the application for the Securities which the Customer applies for; and
(c)  to make such application by means of any applicable computer storage method, transmission over any network or any other available means, to include the Customer's application as part of an application made on behalf of the Bank and other customers, and to submit the Customer's application moneys together with other application moneys in the form of a single cheque or by any other means.
The Customer understands that the Bank does not act on behalf of the issuer or seller of the Securities, that his Instruction to the Bank is not in itself an application to the issuer or seller for Securities, and that no legal relationship exists between the Customer and the issuer or seller until an application on his behalf has been made to and accepted by the issuer or seller.  The Customer shall not, and shall not attempt to, copy, reproduce, frame, upload to a third party, transmit or distribute the whole or any part of the Offer Documents or in any way tamper with any part of the Bank's website.

17.5   The Customer acknowledges that the Bank shall not be obliged to accept or implement any Instruction for application for Securities:

(a)  once the public offering of the relevant Securities closes; 

(b)  if the Bank, in its absolute discretion, thinks that any Offer Documents or processes for collection and handling of applications have been tampered with or duplicate or multiple applications by or on behalf of the Customer have been made to the issuer or seller; or
(c)  if the Bank, in its absolute discretion, thinks that to implement such Instruction might be illegal or might breach any contract or rules of any regulatory body or any rules or operational procedures of any clearing system involved.

17.6   The Customer assumes all risks associated with conducting transactions over the Internet or other electronic means, including, without limitation, that the transactions may be subject to interruption, transmission blackout, delayed transmission due to internet traffic, incorrect data transmission due to the public nature of the Internet, any delay or error in transmission of instructions due to breakdown or failure of communication facilities, or any other cause beyond the control of the Bank or its nominee.

17.7   In the absence of wilful misconduct or negligence by the Bank, neither the Bank nor its nominee shall be liable to the Customer for:

(a)  the adequacy, accuracy or completeness of any Offer Documents, whether they are delivered through the Bank to the Customer, through a hyperlink on the Bank's website or otherwise;

(b)  any losses which the Customer may suffer as a result of any rejection of his application for Securities;
(c)  any losses which the Customer may suffer from anything which the Bank or its nominee does or omits to do in connection with any Instruction for application for Securities;
(d)  anything done or omitted to be done because of any legal requirement, any requirement of a regulatory body or authority or an order or direction of a court or tribunal;
(e)  any interruption, failure or error of the Internet or any electronic, computer or other system;
(f)   anything done or omitted to be done by any of the other parties involved in the issue or sale of Securities; or
(g)  anything beyond the control of the Bank or its nominee.

17.8   In the absence of wilful misconduct or negligence by the Bank, the Customer shall indemnify the Bank and its nominee against all losses and reasonable expenses reasonably incurred by the Bank arising out of or in connection with:

(a)  the acceptance and implementation of any Instruction;

(b)  any breach by the Customer of his obligations;
(c)  anything done or omitted to be done by the Bank or its nominee in reliance on instructions or communications which the Bank or its nominee in its absolute discretion believes to have been given by the Customer or on his behalf or any failure of the Customer to give instructions;
(d)  any proceeding or investigation by or on behalf of any regulatory body; and
(e)  any action by the Bank or its nominee taken in good faith to comply with any law, regulatory requirement or order or direction or any court or tribunal.

18. Supplemental Terms and Conditions for China Connect Securities

18.1. Definition and Interpretation

18.1.1 Unless the context otherwise requires, capitalised terms used herein shall have the meaning defined in the General Terms.

18.1.2 In these Supplemental Terms and Conditions, unless the context otherwise requires:
"China Connect Securities" means the securities listed and traded on a PRC Stock Exchange which may from time to time be traded by Hong Kong and overseas investors under the Programme.
 "PRC" means the People's Republic of China, excluding for the purposes of these Supplemental Terms and Conditions, Taiwan, Hong Kong and Macau.
"PRC Clearing House" means a clearing house established in the PRC with the approval of the PRC securities regulatory authority.
"PRC Stock Exchange" means a stock exchange in the PRC established with the approval of the State Council of the PRC.
"Programme" means the programme for the establishment of mutual stock market access between the PRC and Hong Kong.

18.2. The Customer's obligations

18.2.1 The Customer shall provide instructions within the time required by the Bank in connection with any action to be taken in respect of corporate actions in respect of its China Connect Securities, and shall provide sufficient cleared funds to the Bank to take such action.
18.2.2 The Customer shall maintain an account denominated in RMB and an account in denominated in HKD, each in its own name, with the Bank for the settlement of money obligations in respect of its China Connect Securities.
18.2.3 The Customer shall bear all taxes, fees, charges and levies payable in RMB and in HKD, in the PRC and in Hong Kong, in respect of its China Connect Securities, including PRC stamp duty, income tax and/or withholding tax.
18.2.4 The Customer agrees that information about it and its China Connect Securities may be disclosed to the relevant brokers, agents, exchanges, clearing houses, regulators and tax or other authorities in the PRC and in Hong Kong including for surveillance and investigation purposes.
18.2.5 The Customer shall fully understand and comply with all applicable PRC and Hong Kong laws and regulations, including the Law of the PRC on Securities; PRC laws and regulations in respect of short-swing profits, reporting and disclosure to the PRC regulators, the relevant PRC Stock Exchange and listed company; in respect of prohibitions on purchase and sale of China Connect Securities; and in respect of taxes; and the business and trading rules and regulations of the relevant PRC Stock Exchange, including its regulations relating to the Programme. The Customer shall be responsible for seeking its own independent professional advice to ensure such compliance.
18.2.6 No information provided by the Bank in relation to China Connect Securities shall be regarded as legal or other professional advice.
18.2.7 The Customer shall comply with any rules from time to time prescribed by the Bank in relation to China Connect Securities.
18.2.8 The Customer warrants that:
(a) it does not know of any fact that might impair the validity of its China Connect Securities and has full authority to receive, deal with and give instructions, authorizations and declarations in respect of them; and (b) there is no adverse claim to such securities and there is no restriction on the transfer of such securities other than any transfer restriction which is expressly provided for under the rules of the Hong Kong stock exchange and clearing house.
18.2.9 The Customer shall on request provide the Bank with any information or document in Chinese (or where the information or document is not in the Chinese language, a Chinese translation thereof) the Bank may require in order to provide any service in relation to the Programme or to comply with any request for information made by any exchange, clearing house, regulator or tax or other authority.

18.3. China Connect Securities

18.3.1 There is no guarantee that any securities may be bought or sold under the Programme at all or at any time.
18.3.2 The China Connect Securities which may be traded under the Programme are subject to changes without notice.
18.3.3 The Customer may receive shares or other types of securities from an issuer of China Connect Securities, where such shares or other securities may not be sold under the Programme.
18.3.4 The Customer's China Connect Securities will be subject to the applicable PRC and Hong Kong laws.
18.3.5 The Bank's obligations in respect of the Customer's China Connect Securities shall be limited to accounting to the Customer for its share of any securities or payment in any currency actually credited to its broker's account with the Hong Kong clearing house.
18.3.6 The Bank may, without any liability, do or refrain from or delay in doing anything which in its opinion is required in order to comply with any applicable laws or regulations, or applicable rules or requirements of any relevant exchange, clearing house or regulator (including the PRC China Securities Regulatory Commission, the People’s Bank of China and the State Administration of Foreign Exchange, and the Hong Kong Securities and Futures Commission and Monetary Authority) in respect of the Customer's China Connect Securities, including the rules and requirements of the relevant PRC Stock Exchange and PRC Clearing House, including as to trading days and hours, order type, order size other quotation requirements, maximum cross-boundary investment quota, daily quota, order amendment, pre-trade checking, prohibition on day trading, off-exchange trading, overselling, short selling, manual trade, block trade and internalisation, trade suspension or restriction, order rejection, shareholding limits, margin trading, cancellation of orders in case of contingency, forced-sale arrangements (to force sell a number of the Customer's China Connect Securities as required by the Hong Kong stock exchange or clearing house and within the period required by it, and to freeze such securities pending sale), issue of warning statements, short time for corporate actions (in certain cases one business day only), clearing and settlement arrangements. The Customer shall, on request by the Bank and at the Customer's expense, do anything required by the Bank in order to comply with such laws, regulations, rules or requirements.
18.3.7 Trading, clearing, settlement, depository, nominee and other related services in respect of China Connect Securities will be provided through brokers, agents, the Hong Kong and PRC stock exchanges and clearing houses. Clearing and settlement of China Connect Securities will be provided by the relevant PRC Clearing House to the Hong Kong clearing house on behalf of the Bank's broker. The Customer's China Connect Securities will be held in an omnibus stock account in the name of the Hong Kong clearing house (on behalf of Hong Kong brokers/custodians) with the PRC Clearing House. There will be no contractual relationship between the Bank or its broker and the PRC Clearing House. The Hong Kong clearing house is not obliged to enforce any rights on behalf of the Bank's broker or the Customer in respect of its China Connect Securities, and does not guarantee the title to any China Connect Securities held through it. The Bank will not be liable in respect of any act or omission of any of the foregoing entities.
18.3.8 The Customer will only be able to exercise the voting rights of its China Connect Securities through the Hong Kong clearing house, and will not be able to attend meetings as proxy in person. The Hong Kong clearing house will, where the applicable laws, rules or regulations so permit or require, communicate or pass on any combined single voting or other instructions to the relevant issuer.
18.3.9 The Hong Kong clearing house may decline to exercise any rights or participate in actions, transactions or matters in person at any place outside of Hong Kong.
18.3.10 The Customer's China Connect Securities will be in scripless form. Physical deposits and withdrawals of such securities will not be available. The Customer's ownership of such securities will be reflected only in the Bank's statements issued to the Customer.
18.3.11 The Bank's services in respect of the Programme are subject to the availability of the linkages and gateways between the Hong Kong and PRC stock exchanges and clearing houses.
18.3.12 The Bank shall not be liable in respect of any disruption, delay, interruption, failure, malfunction, order cancellation, restriction, suspension or cessation in respect of any such linkage, gateway or any related system or connection, or in respect of any tax, duty, fine or penalty imposed in respect of any China Connect Securities under any PRC or Hong Kong law or regulation.
18.3.13 Information in respect of China Connect Securities will be provided by third party information vendors. The Bank will not be liable in respect of any such information.
 

SCHEDULE IV

Outward remittance by telegraphic transfer is subject to the following terms and conditions:

1.      Unless otherwise agreed, the Bank will only accept Instruction for:

(a)  remittance to an account opened in the name of the Customer with a recipient bank if (i) the recipient bank is acceptable to the Bank and (ii) written instructions (in a form acceptable to the Bank) specifying the account number for receipt of remittance have been given to the Bank in advance; or

(b)  remittance to a recipient bank acceptable to the Bank for collection by the Customer in person.
2.      The Bank may send, at the sole risk of the Customer, instruction to the recipient bank in explicit language, code or cipher. In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any delay, misunderstanding, misinterpretation, errors, neglect or defaults which may occur in the transmission of the instruction or otherwise.

3.      In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any loss or damage due to delay in payment, error, omission, or default of its correspondent bank or the recipient bank.

4.      All reasonable charges reasonably incurred by the Bank in effecting the Transaction are for the account of the Customer.  The Customer agrees to reimburse the Bank and its correspondent bank for any reasonable expenses reasonably incurred. The Bank may debit any such expenses to any Account of the Customer without prior notice to or seeking consent from the Customer.

5.      The Bank reserves the right to limit the destination of the remittance and to draw the remittance on a place other than that specified by the Customer if, in the Bank's sole opinion, the operational circumstances so require.

6.      For a Transaction involving outward remittance by telegraphic transfer pursuant to an Instruction, an Advice will be provided to the Customer in accordance to Clause 5 of Part A and all provisions of Clause 5 of Part A shall apply to such Advice.

 

SCHEDULE V

Transactions effected in connection with securities margin trading are subject to the following terms and conditions:

1. Definition and Interpretation

1.1 In this Schedule V, except where the context otherwise requires:

“Charge” means the charge and mortgage over the Charged Securities pursuant to this Schedule V.    
“Charged Securities” means all securities in the Securities Margin Account denominated in any currency, but excluding shares in the issued capital of the Bank.
“Call Level” means the Margin Ratio determined by the Bank from time to time at or above which additional margins are due from the Customer to restore the Margin Ratio to such percentage as determined by the Bank from time to time.
“Cut-off Level” means the Margin Ratio for closing out the Customer‘s positions as determined by the Bank from time to time.
“Margin Ratio” means the ratio, expressed as a percentage, of (a) the principal and interest amounts (including accrued interest whether or not already recorded in the Securities Margin Account) outstanding in respect of the Customer‘s loans under this Schedule V to (b) the Maximum Margin Limit in the Securities Margin Account or the aggregate value (as determined by the Bank) of the Share Collateral then held in that account, whichever is the lower.
“Securities Margin Account” means the Customer’s account with the Bank through which trading in Securities under this Schedule V will be conducted.
“Share Collateral” means all Securities denominated in Hong Kong dollars in the Securities Margin Account including, for the avoidance, margin securities but excluding shares in the issued capital of the Bank.

1.2 Unless otherwise stated, reference to Paragraphs means the paragraphs of this Schedule V.

1.3 Unless otherwise provided or unless there is something in the subject or context inconsistent therewith all the words and phrases defined in Part A shall have the same meanings in this Schedule V.

2. Securities Margin Account


2.1 The Customer may request the Bank to open a Securities Margin Account. The Bank may conduct commercial credit reference checks on corporate Customers. The Customer may give the Bank instructions to buy Securities on its behalf. For each Transaction, the Customer shall pay an initial margin (if any) set by the Bank. The Bank may at its discretion (a) accept or decline the Customer’s instructions, and (b) grant a loan in the amount (which will not in aggregate exceed a percentage of the value of the Share Collateral) determined by the Bank from time to time to the Customer to finance part of the price payable for the Securities. All purchased Securities will be held in the Securities Margin Account.

2.2 The Bank may at any time, without notice, change the type or issue of Securities which it will finance for the Securities Margin Account, the amount of any margins required, or the amount of the total credit available in the Securities Margin Account.

2.3 All amounts owing by the Customer on the Securities Margin Account are repayable on demand.

2.4 The Bank may not have time to check whether the Customer has paid the initial margin (if any) or has exceeded the undrawn amount of the available credit facility in the Securities Margin Account. If either of the foregoing occurs, the Bank may without notice cancel the instruction or sell the purchased Securities. The Customer shall indemnify the Bank against all losses and reasonable expenses.

2.5 Upon termination of the Securities Margin Account for any reason, the Customer shall repay all debit balances therein together with interest thereon.

2.6 Notwithstanding any provision herein, the Bank has the sole discretion to determine whether to grant any credit facility, and the extent and terms of the credit facility.

3. Additional margins

3.1 The Customer shall on demand pay such margins (in cash or securities acceptable to the Bank) as the Bank may require from time to time. The Bank may (but is not obliged to) debit or apply any initial and additional margins from any of the Customer‘s accounts. In the case of margin securities, references to applying such securities refer to selling or realising them and applying the sale proceeds after deducting all reasonable expenses.

3.2 The Bank may at any time without notice apply any cash or securities in the Securities Margin Account including margins to reduce any amounts owing or payable by the Customer, in such order as the Bank may select.

3.3 The Customer shall at all times ensure and maintain sufficient initial margin (if any) and additional margins in the Securities Margin Account, so that each of the Call and Cut-off Levels is not exceeded.

3.4 If the Margin Ratio touches or exceeds the Call Level, the Bank is entitled (but not obliged) to demand additional margins from the Customer, and the Customer shall thereupon immediately deposit such additional margins with the Bank.

3.5 Without prejudice to any other provisions, any demand for any margin is effective upon a message being left at the Customer‘s telephone number on any phone or machine or with any person taking such call, or upon sending a message, email or fax to the Customer‘s telephone number, email address or fax number known to the Bank, whether or not (or when) the communication is received by the Customer.

3.6 If the Margin Ratio touches or exceeds the Cut-off Level, the Bank is entitled without notice to or consent of the Customer and without liability (but not obliged) to sell any or all of the Charged Securities and use the sale proceeds after deducting all reasonable expenses to pay any amounts owing by the Customer in such order as the Bank may select.

4. Charge

4.1 The Customer shall charge and mortgage to the Bank all Charged Securities as continuing security for the payment and discharge of all amounts owing by the Customer to the Bank (whether or not in connection with the Securities Margin Account). The Charge shall extend to all dividends, interest, distributions, allotments, offers, benefits, entitlements, securities and rights accruing, paid, made, offered or arising in respect of, and the proceeds of sale of, the Securities.

4.2 The Customer shall within the time required by the Bank do all things which the Bank reasonably requires to transfer the Charged Securities into the name of the Bank, its nominee or sub-custodian and to perfect the Bank’s security interests. The Charged Securities will be held at the Customer‘s sole risk and reasonable expense. The Charged Securities may be held by the Bank or its nominee or sub-custodian in or outside Hong Kong. The Bank may at any time register any Charged Securities in the name of it, its nominee or sub-custodian, and deposit any Charged Securities in any clearing system, without notice and at the Customer‘s risks and reasonable cost.

4.3 The Bank will not be liable for any failure to collect any amount payable on the Charged Securities, to pay any call or instalment, to take any action in respect of them, or for any loss in connection with them.

4.4 On release of any Charged Securities, the Bank will discharge its liabilities to the Customer by transferring to an account nominated by the Customer with CCASS (the Central Clearing and Settlement System) or by making available for the Customer‘s collection Securities (or certificates, instrument of transfer and sold note) of the same class and denomination (subject to any capital reorganisation which may have occurred).

5. Sale

Before the occurrence of an Event of Default, and subject to the Bank’s consent, the Customer may instruct the Bank to sell the Securities in the Securities Margin Account.

6. Events of Default

6.1 The occurrence at any time of any of the following events with respect to the Customer or any person who has provided any guarantee or security in support of the Customer‘s obligations to the Bank (the Customer and such person are each a “relevant party”) constitutes an event of default (“Event of Default”):

(a) Failure to make, when due, any payment or delivery required under the Agreement. Disclaiming, repudiating or rejecting, in whole or in part, the Agreement.

(b) Failure to comply with any other obligation in accordance with the Agreement if not remedied within 14 days after notice of such failure is given to the Customer.

(c) Failure to satisfy in full any margin call or to maintain the Margin Ratio below the Call Level (whether or not the Customer has received any demand for margin, and whether the time to meet any margin call has expired).

(d) Any representation proves to be incorrect or misleading in any material respect.

(e) (i) Any default (however described) under any financial, securities, derivative or borrowing transaction which has resulted in such transaction becoming, or becoming capable of being declared, due and payable or deliverable, or otherwise terminated prematurely; (ii) any default in making any payment or delivery on the due date under any financial, securities, derivative or borrowing transaction (after giving effect to applicable notice requirement or grace period); or (iii) any disclaimer, repudiation or rejection, in whole or in part, of any financial, securities, derivative or borrowing transaction (or by any person appointed or empowered to manage any relevant party or act on its behalf).

(f) Any relevant party (i) becomes insolvent or fails or admits in writing its inability to pay its debts as they become due, (ii) makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iii) has a resolution passed for its liquidation, reorganization or rehabilitation, (iv) has a secured party take possession of all or any part of its assets or has a distress, execution, attachment or other legal process enforced against all or any part of its assets, or (v) causes or is subject to any event which, under any Applicable Regulations, has a similar effect to any of the events referred to in this Paragraph. Any judicial, administrative or other proceeding or any action is commenced or taken (1) seeking a judgment of or arrangement for insolvency, bankruptcy, liquidation, reorganization or rehabilitation with respect to any relevant party or its debts or assets, (2) seeking the appointment of a trustee, receiver, liquidator, supervisor or custodian for any relevant party or any part of its assets, or (3) which has a similar effect.

(g) Any relevant party amalgamates or merges with or transfers all or any material part of its assets to, or reconstitutes as, another entity.

(h) If any relevant party is an individual, it dies or becomes mentally incapacitated.

(i) Any person acquires directly or indirectly any ownership interest enabling it to appoint a majority of the board of directors (or its equivalent), or to exercise control of, of any relevant party. Any relevant party effects any material change in its capital structure.

6.2 If any Event of Default occurs, or if any circumstances arise which in the Bank’s opinion might jeopardize its interests, whether or not the Bank has made a call for margin and whether the time to meet the call has expired, all sums owing by the Customer in the Securities Margin Account shall immediately become due and payable, and the Bank may without notice:

(a) transfer from any or all of the Customer‘s accounts (of any nature, and whether the amounts are matured or not) any amounts to the Securities Margin Account;

(b) sell any or all of the Charged Securities and use the sale proceeds after deducting all reasonable expenses to pay any amounts owing by the Customer in such order as the Bank may select; and/or

(c) cancel any outstanding instructions or terminate any contracts for the Securities Margin Account without notice and without liability.

7. Interest

7.1 Interest shall accrue on the debit balance in the Securities Margin Account at the rates and in the manner determined by the Bank from time to time, and will be debited to the Securities Margin Account at the times determined by the Bank.

7.2 Interest shall accrue on all sums due from the Customer but unpaid, and on any debit exceeding the pre-arranged credit limit, at the rates determined by the Bank from time to time from the due date until full repayment (before and after judgment).

7.3 The Bank will pay interest on the net credit cash balance in the Securities Margin Account at its rate for savings account for the relevant currency for the time being.

8. Securities brokers / securities margin financiers

If the Customer is licensed to carry on business in dealing in securities or securities margin financing:

8.1 The Customer represents and warrants on each day so long as any sum remains to be lent or remains payable under this Schedule V that:

(a) it is a limited company duly established and validly existing under the laws of its place of incorporation, is a separate entity capable of suing and being sued in its own name and has the full power and authority to own assets and carry on the business it now conducts;

(b) it is licensed for Type 1 regulated activity (dealing in securities) or Type 8 regulated activity (securities margin financing) under the Securities and Futures Ordinance (“Ordinance”), and it has and will continue to comply with all requirements of the Ordinance and all rules, regulations, codes and guidelines made or issued thereunder and any other applicable rules, regulations, codes and guidelines governing the conduct of the relevant regulated activities (as defined in the Ordinance) (the “Rules”) (including without limitation, where it is licensed for Type 8 regulated activity, section 118(1)(d) of the Ordinance);

(c) it will utilize the Securities Margin Account in all respects in compliance with the Ordinance and the Rules;

(d) it has the power to open the Securities Margin Account and perform all transactions contemplated by this Schedule V;

(e) all authorisations and other matters, official or otherwise, required or advisable in connection with the opening of the Securities Margin Account and all transactions contemplated by this Schedule V have been obtained, effected or done and are in full force and effect;

(f) where applicable, it has obtained necessary authorisation from its clients to pledge their shares and (in the case of its providing securities margin financing to its clients) to repledge their securities collateral;

(g) this Schedule V constitutes its legal, valid and binding obligations enforceable in accordance with its terms; and

(h) the opening of the Securities Margin Account and all transactions contemplated by this Schedule V do not and will not contravene, conflict with or otherwise violate (i) any law or regulation to which it is subject or (ii) any of its constitutional documents or (iii) any agreement to which it or which is binding on it or any of its assets, and do not and will not result in the creation of, or oblige it to create, any encumbrance over any of its assets.

8.2 The Customer (a) undertakes to provide to the Bank on request such information as the Bank may require in respect of the Customer’s financial conditions (including its leverage position and funding structure), business and management practices, including but not limited to copies of its financial returns submitted to the Securities and Futures Commission under section 56 of the Securities and Futures (Financial Resources) Rules, copies of the annual external auditors’ compliance reports submitted to the Securities and Futures Commission under section 4 of the Securities and Futures (Accounts and Audit) Rules, and (b) authorises the Bank to conduct any checking including but not limited to proofs of clients’ authorisation, at the times and in the manner required by the Bank.

 

 

 

PART C: INVESTMENT ACCOUNTS SERVICES

The Investment Accounts Services are subject to the following terms and conditions:

1.      Definitions and Interpretation


1.1    In this Part C, unless the context otherwise requires:

"Debt Instrument" means any certificate of deposit, bond, note, bill or other debt instrument of any description which the Bank is prepared to deal or handle under the Investment Accounts Services from time to time and includes any unit, share or part thereof and any interest, right or property deriving therefrom.

"Equity Linked Instrument" or "ELI" means any note, certificate, deposit, contract or instrument the return on which is determined by the performance of Securities (whether a single Securities or a basket of Securities) or Securities indices (whether a single Securities index or a basket of Securities indices) which the Bank is prepared to deal or handle under the Investment Accounts Services from time to time and includes any unit, share or part thereof and any interest, right or property deriving therefrom.

"Investment Account" means each account opened in the name of the Customer with the Bank for the purpose of holding each type of Investment Products on behalf of the Customer; for the avoidance of doubt, each Investment Account is a Designated Account.
"Investment Fund" means any unit trust, mutual fund or other collective investment scheme which the Bank is prepared to deal or handle under the Investment Accounts Services from time to time and includes any unit, share or part thereof and any interest, right or property deriving therefrom.
"Investment Plan" means any investment plan in respect of Investment Funds which the Bank may offer under the Investment Accounts Services from time to time.
"Issuer" means, in respect of any Investment Product, the issuer (including its authorized representatives) of the relevant Investment Product.
"Manager" means, in respect of any Investment Product, the manager (including its authorized representatives) of the relevant Investment Product.
"Investment Products" means any Debt Instrument, Investment Fund, ELI and other Securities which the Bank is prepared to deal or handle under the Investment Accounts Services from time to time and where the context permits, shall include any Investment Plan.
"Settlement Account" means in relation to an Investment Account, each account opened in the name of the Customer with the Bank and designated by the Customer for the purpose of settling Transactions and making payments in connection with that particular Investment Account.  For the avoidance of doubt, in relation to the Investment Account for ELI, there shall be two Settlement Accounts, one being a securities Settlement Account and the other being a cash Settlement Account, and as far as the securities Settlement Account is concerned, once any Securities deriving from any ELI upon its maturity is credited into that account, dealing in such Securities shall be subject to the provisions in Schedule III of Part B.  The Bank will only accept an account as a Settlement Account if and only if the Authorized Signatory(ies) and the Agreed Signing Arrangement of that account are the same as those of the relevant Investment Account.  Further, the Bank will only accept a change of the Authorized Signatory(ies) and/or the Agreed Signing Arrangement of a Settlement Account if and only if those of the relevant Investment Account and the other Settlement Account (applicable only in relation to an Investment Account for ELI) in respect of the same Investment Account are also changed accordingly.
1.2     Unless otherwise stated, reference to Clauses means the clauses of this Part C.

1.3     Unless otherwise provided or unless there is something in the subject or context inconsistent therewith, all the words and phrases defined in Part A shall have the same meanings in this Part C.

2.      Services

2.1    The Bank may in its discretion (but is not obliged to) provide the following Services to the Customer:
(a)  handling Instructions in connection with Debt Instruments (including Instructions to purchase, acquire, subscribe for, sell, redeem, deal in or otherwise dispose of Debt Instruments) and providing related services;
(b)  handling Instructions in connection with Investment Funds (including Instructions to subscribe for, switch, redeem, deal in or otherwise dispose of Investment Funds) and providing related services;
(c)  handling Instructions in connection with ELI (including Instructions to purchase, acquire, subscribe for, sell, redeem, deal in or otherwise dispose of ELI) and providing related services;
(d)  offering Investment Plans and handling Instructions in connection with Investment Plans and providing related services;
(e)  handling Instructions in connection with Investment Products (other than Debt Instruments, Investment Funds, ELI and Investment Plans) subject to such terms and conditions as the Bank may reasonably prescribe from time to time;
(f)   entering into any agreement or contract with or on behalf of the Customer in connection with Investment Products, in each case in accordance with Instructions;
(g)  dealing with proceeds obtained from sale or other disposal of Investment Products of the Customer in accordance with Instructions;
(h)  holding or arranging for Investment Products of the Customer to be held in safe custody and registering them in the name of the Customer, the Bank's custodian or nominee or such other person in compliance with all Applicable Regulations;
(i)   where Investment Products of the Customer are registered in the name of the Bank or its custodian or nominee, notifying the Customer of information, notices and other communications in relation to such Investment Products and subscribing, taking up, disposing of or otherwise dealing with any right, benefit, interest or entitlement arising from such Investment Products in accordance with Instructions or, where no Instruction is received by the Bank, refraining from action in which case any default option in respect of the relevant action or event concerning the Investment Products will apply;
(j)   requesting, collecting and receiving on behalf of the Customer any interest, dividend, return, accretion, distribution or other benefit in respect of the Investment Products of the Customer in accordance with Instructions and crediting it to the Settlement Account as soon as reasonably practicable after receipt of immediately available funds by the Bank (less such cost and expenses of reasonable amount and reasonably incurred by the Bank);
(k)  collecting on behalf of the Customer any redemption money and other payment in respect of any Investment Products of the Customer upon maturity or redemption and surrendering the Investment Products against receipt of payment in accordance with written Instructions and crediting such payment to the Settlement Account as soon as reasonably practicable after receipt of immediately available funds by the Bank (less such cost and expenses of reasonable amount and reasonably incurred by the Bank);
(l)   delivering documents of title and other instruments relating to Investment Products to the Customer or to its order in accordance with Instructions at the Customer's risk; and
(m) providing services ancillary or incidental to the services described above.
2.2     The following provisions shall apply to Investment Plans:
(a)  The Bank may in its discretion prescribe and vary from time to time:

(i)   the Investment Funds which are available to the Customer under any Investment Plan;

(ii)   any minimum or maximum amount (whether in respect of any Investment Plan or any Investment Fund under an Investment Plan) of contribution (including initial and subsequent periodic contributions);

(iii)  any currency and manner in which contributions shall be paid; and

(iv)  the minimum period of advance notice which must be given by the Customer to the Bank in order to vary any Instructions in relation to any Investment Plan.

(b)  The Bank shall be entitled to suspend or terminate any Investment Plan at any time if:

(i)   the Customer fails to make at least three consecutive periodic contributions on the respective applicable due dates;

(ii)   any direct debit arrangement for the purpose of paying contributions is cancelled or becomes ineffective for any reason; or

(iii)  any of the relevant Investment Accounts is suspended or closed for any reason.

(c)  Subject to any Instructions to the contrary, all Investment Funds acquired pursuant to any Investment Plan shall continue to be held in the relevant Investment Account(s) after termination of the relevant Investment Plan.

2.3     The Bank is entitled and authorized (but not obliged), without further notice to or consent from the Customer and subject to any Applicable Regulations, to take such steps as it may consider expedient to provide the Services including, without limitation, the following:

(a)  to aggregate the Customer's orders with orders of other persons (including other customers or employees of the Bank) and effect allocation of Investment Products in such manner as the Bank considers appropriate;

(b)  to treat Investment Products of the Customer as fungible and pool them with Investment Products of other customers of the Bank. If Investment Products of a particular issue, class, company or denomination deposited by customers with the Bank or any custodian or nominee are pooled and are for any reason lost or otherwise become unavailable for delivery, the reduction in the total quantity or amount of such Investment Products shall be shared on a pro rata basis among all the customers whose Investment Products are pooled;
(c)  to enter into any arrangement or agreement with any custodian or nominee in connection with the custody of Investment Products of the Customer as the Bank may in its discretion consider appropriate, and the Customer shall be bound by the operational procedures and requirements of the custodian or nominee;
(d)  to return to the Customer any Investment Products of the Customer which may not have the same serial number or identification as those originally received by the Bank;
(e)  not to accept any Investment Products for deposit and return to the Customer any Investment Products without giving any reason or prior notice;
(f)   to act on the opinion or advice of the Bank's legal advisers, accountants, brokers or other professional advisers but in the absence of wilful misconduct or negligence by the Bank, without liability for any acts or omissions on their part;
(g)  to sell, dispose of or otherwise deal with any Investment Products of the Customer on prevailing market conditions if such sale, disposal or dealing is required by any Applicable Regulations;
(h)  on behalf of the Customer, to withhold and/or make payment of any taxes or duties payable on or in respect of any Investment Products of the Customer;
(i)   upon termination of any Investment Account for any reason, to return Investment Products to the Customer by such means as the Bank considers appropriate at the risk and expense of the Customer;
(j)   subject to any Instructions to the contrary, to reinvest any interest, dividend, return, accretion, distribution or other benefit or payment in respect of any Investment Fund of the Customer or any Investment Plan for the Customer by subscribing for further units in the same Investment Fund or by way of further contribution towards the same Investment Plan on behalf of the Customer; and
(k)  generally to do all acts and things which are necessary for or incidental to the provision of the Services.

2.4     In providing the Services, the Bank is entitled and authorized to:
(a)  comply with all Applicable Regulations requiring the Bank to take or refrain from action;
(b)  participate in and comply with the rules and regulations of any organization which regulates the conduct of banking, securities and/or other business and any other system which provides central clearing, settlement, custodian, depository and similar services or facilities but, in each case, in the absence of wilful misconduct or negligence by the Bank, without liability for any acts or omissions on the part of the operator or manager of any such organization or system;
(c)  act in accordance with its regular business practice and procedure and will only accept or execute Instructions insofar as it is in the Bank's opinion practicable and reasonable to do so and the Bank reserves the right to prescribe any conditions subject to which it executes any Instruction or to refuse to execute any Instruction if, in its opinion, there are reasonable grounds to do so; and
(d)  make any payment to the Customer or any other person in any currency and, for that purpose, convert any currency into another currency at the applicable rate of exchange quoted and conclusively determined by the Bank.
2.5     The Bank is entitled to prescribe and vary the types of Investment Products and the choices within each type of Investment Products which the Bank is prepared to deal or handle under this Part C from time to time. If the Bank decides not to continue to deal or handle any Investment Products, the Bank is not obliged to effect any further dealing in any such Investment Products and is entitled to hold any such Investment Products on behalf of the Customer up to its maturity.

2.6     Nothing in the Terms and Conditions shall impose or be interpreted to impose any obligation or undertaking on the Bank to provide any investment advice to the Customer.

3.      Instructions

3.1     Without prejudice to any other provisions in the Terms and Conditions, the Bank reserves the right to refuse to execute any Instruction unless all the following conditions are satisfied:

(a)  the Instruction is actually received by the Bank within the period (including any cut-off time) prescribed by the Bank on any Business Day;

(b)  the Instruction complies with any minimum or maximum amount, quantity and/or other limit which the Bank may reasonably prescribe from time to time;
(c)  there are sufficient funds in the relevant Settlement Account(s) or Investment Products in the relevant Investment Account(s) to settle the Transaction contemplated by the Instruction;
(d)  any other instruments or documents required for executing the Instruction have been provided by the Customer to the Bank; and
(e)  any other conditions which the Bank may reasonably prescribe.
3.2     All Instructions and Transactions involving any Investment Products are subject to the constitutive documents, prospectuses, explanatory memorandum or other offering documents relating to the relevant Investment Products.

3.3     Where the Bank deals as agent on behalf of the Customer, the Customer acknowledges that:
(a)  the Bank is authorized to disclose to the Issuer or Manager of the Investment Products in which the Customer intends to deal any information relating to the Customer, the Investment Products, the Investment Account(s) and the Settlement Account(s) for the purposes of dealing in the Investment Products;
(b)  the Bank has no authority to accept applications for dealing in any Investment Products on behalf of the relevant Issuer or Manager;
(c)  receipt of any Instruction by the Bank to make an application on behalf of the Customer does not amount to acceptance of the application by the relevant Issuer or Manager; and
(d)  the Bank is not responsible for ensuring that the relevant Issuer or Manager accepts any application or promptly informs the Bank of rejection of any application.

4.       Settlement of Transactions
4.1     The Bank is authorized to credit any Investment Products received by the Bank on behalf of the Customer to, and withdraw any Investment Products to settle any Transaction from, the relevant Investment Account(s) unless the Bank has received Instructions to the contrary.

4.2     The Bank is authorized to credit any proceeds of a Transaction or other payment received by the Bank on behalf of the Customer to, and withdraw any amount required to settle any Transaction or any other payment obligation of the Customer from, the relevant Settlement Account(s) unless the Bank has received Instructions to the contrary.

4.3     The Bank is authorized to credit any Securities deriving from any ELI of the Customer upon its maturity received by the Bank on behalf of the Customer to the relevant Settlement Account unless the Bank has received Instructions to the contrary.

4.4     For the purpose of settling a Transaction on behalf of the Customer, the Bank is authorized to:
(a)  earmark such quantity of Investment Products in the relevant Investment Account(s) or such amount of funds in the relevant Settlement Account(s);
(b)  withhold the earmarked Investment Products or funds (without interest) with effect from such date and for such period; and/or
(c)  deliver the Investment Products or pay the funds to the relevant person at such time in settlement of the Transaction,
in each case as the Bank may consider appropriate in light of any dealing procedures applicable to the Investment Products, prevailing market conditions and other relevant circumstances.
4.5     The Bank is not obliged to make any credit under Clause 4.1 or 4.2 or 4.3 above unless the Bank has received the Investment Products or funds or Securities and the Customer has discharged its obligations to settle the relevant Transaction and any other payment in full including, without limitation, any commissions, brokerages, fees, charges and expenses of a reasonable amount and reasonably incurred in connection with the Transaction. Any credit shall be made by the Bank to the relevant Investment Account(s) or the relevant Settlement Account(s) as soon as reasonably practicable after receipt of immediately available Investment Products or funds or Securities by the Bank.

4.6     For the avoidance of doubt, the Bank is authorized to deduct all reasonable commissions, brokerages, fees, charges and other expenses reasonably incurred and all taxes, duties and levies payable by the Customer in connection with each Transaction from any proceeds of that Transaction and credit the balance to the relevant Settlement Account.

5.      Prices and Quotations

5.1     The actual bid and offer prices of each Transaction will be determined at the time when the Transaction is effected in accordance with any dealing procedures or market customs or practice applicable to the Investment Products.

5.2     The Bank may but is not obliged to quote prices for any Investment Products at the request of the Customer. Any price which may be quoted by the Bank or its representatives (whether or not at the Customer's request) at any time for any purpose is for indication and reference only. The Bank is not obliged to effect any Transaction at any quoted price unless expressly confirmed by the Bank.

6.      Contract Notes, Statements of Account and Receipts

6.1     The Bank shall, where applicable, deliver to the Customer contract notes, statements of account and receipts in respect of the Transactions and the Investment Accounts in accordance with and within any time period prescribed by law.

6.2    The Customer shall check and verify the particulars set out in each contract note, statement of account and receipt. Each contract note, statement of account and receipt shall be accepted by and binding on the Customer as correct except to the extent the Customer notifies the Bank in writing of any alleged error or omission within seven days after the date of a contract note or receipt or within 90 days after the date of a statement of account. The Bank's records shall, in all other respects, be conclusive and binding on the Customer, save for manifest error.

6.3     The Customer confirms that the Bank may issue contract notes, statements of account and/or receipts in electronic form and agrees to receive them by electronic means.

6.4     The Customer is responsible to notify the Bank as soon as reasonably practicable if the Customer does not receive any contract note, statement of account or receipt within the period which the Customer would usually receive it. The Customer shall be deemed to have received any contract note, statement of account or receipt if the Bank does not receive any notification of non-receipt from the Customer within 90 days after the date of the contract note, statement of account or receipt.

7.      Fees and Expenses


7.1     All taxes, levies and duties payable in connection with the Investment Products and/or the Transactions and all commissions, brokerages, fees and expenses of reasonable amount and reasonably incurred by the Bank in connection with the provision of the Services (including the enforcement of any right of the Bank) shall be borne by the Customer.

7.2     Information relating to any standard commissions, brokerages, fees, taxes, levies, duties, charges and expenses will be made available by the Bank at the Customer's request.

7.3     The Bank is authorized at any time without prior notice to the Customer to charge and/or debit from the relevant Settlement Account(s) any commissions, brokerages, fees, taxes, levies, duties, charges and expenses payable by the Customer.

8.      Customer's Information
The Customer hereby expressly agrees that the Bank may, if requested by any government or regulatory body or authority or exchange for any purpose or if otherwise required by any person in order to enable the Bank to complete the sale and purchase of, or any transaction in relation to, any Investment Products, disclose to it that the Customer is the beneficial owner of all or any Investment Products and any other details relating to the Customer, the Investment Products, the Transactions and/or the Investment Accounts requested by it, without prior notice to or consent from the Customer. Further, if the Bank so requires, the Customer shall forthwith provide the Bank with written confirmation that the Customer is the beneficial owner of the Investment Products in such form as is satisfactory to the Bank and other details requested by any such government or regulatory body or authority or exchange. This Clause 8 shall continue to have effect notwithstanding the termination of any Investment Account or the Agreement.

9.      Customer's Warranties and Acknowledgements


9.1     The Customer declares and warrants that:
(a)  the Customer shall make its own investigation and appraisal of the Investment Products in which it intends to deal; and
(b)  before dealing in any Investment Products, the Customer shall read any up-to-date product specifications, constitutive document, prospectus, explanatory memorandum and other offering document and financial report and accounts relating to the Investment Products and consult his own advisers on the legal, regulatory, tax, business, investment and financial implications of the Investment Products and consider carefully whether dealings in the Investment Products are appropriate for the Customer in light of its investment objectives, experience and financial resources.
9.2     The Customer acknowledges and agrees that:
(a)  withdrawal or transfer of any Investment Products of the Customer is subject to such procedures and conditions as the Bank may reasonably prescribe;
(b)  redemption of any Investment Products or payment of interest or other benefit in relation to any Investment Products is the sole obligation of the Issuer of such Investment Products and in the absence of wilful misconduct or negligence by the Bank, the Bank is not liable to the Customer for any delay or failure of any Issuer to redeem any Investment Products or pay any interest or benefit;
(c)  money payable to the Customer on redemption of any Investment Products may not equal to the nominal value of the Investment Products;
(d)  the Bank cannot guarantee the accuracy or completeness of any information contained in any constitutive documents, prospectuses, explanatory memoranda or other offering or marketing documents relating to any Investment Products from third parties;
(e)  the Bank assumes no responsibility for the performance or profitability of any Investment Products or the return on any investment made by the Customer;
(f)   the other customers of the Bank may from time to time have a position in investments similar to that of the Customer;
(g)  the Bank may deal in Investment Products for its own account or for the account of its other customers;
(h)  the Bank may have banking or other financial relationships with, or its officers, directors and employees may be officers, directors and/or employees of any company or person which is the Issuer of an Investment Product;
(i)   the Bank may enter into any transaction for the account of the Customer with any other member of the Bank's group and/or any agent of the Bank, and the Bank may be interested in any such transaction and shall not be accountable to the Customer for any profit or benefit arising from it;
(j)   unless otherwise notified to the Customer, the Bank acts as agent of the Customer in effecting transactions on its behalf pursuant to the Terms and Conditions and in the absence of wilful misconduct or negligence by the Bank, shall not be liable or responsible, whether in contract or in tort, in law or in equity, for the act, default, omission, failure, non-performance, delay, fraud or negligence of the Issuer or the Manager of any Investment Products or their respective operators, agents and/or representatives; and
(k)  in executing Instructions, the Bank and any other company in the Bank's group may effect transactions as principal with the Customer and may effect transactions in which the Bank or any other company in the Bank's group has, directly or indirectly, a material interest or a potential conflict with its duty to the Customer. The Bank shall ensure that such transactions are effected on terms which are not less favourable in substance to the Customer than if the Bank or any other company in the Bank's group had not traded as principal or if the material interest or potential conflict had not existed. The Bank and any other company in the Bank's group shall be entitled to retain for their benefit any profit, commission, remuneration and/or other benefit made or received from or by reason of such transactions and/or any connected transactions and shall not be liable to account for them to the Customer.

10.     Exclusion


10.1   In the absence of wilful misconduct or negligence by the Bank, the Bank is not liable for any failure or delay to meet its obligations or provide the Services due to any cause beyond its reasonable control which includes, without limitation, change of law, market disruption or fluctuation, suspension of trade, fires, storms, acts of God, acts of force majeure, riots, strikes, lock outs, wars, governmental control, restriction or prohibition, exchange control, failure, insolvency or liquidation of any relevant bank, financial institution, broker, exchange, clearing house or government, technical failure, malfunction, breakdown, interruption or inadequacy of any equipment, and power failure and black outs, whether such events occur in HKSAR or overseas.

10.2   In the absence of wilful misconduct or negligence by the Bank, the Bank shall not be liable for any taxes or duties payable on or in respect of the Investment Accounts or any Investment Products, nor for any loss of opportunity to increase the value of any Investment Products in the Investment Accounts or diminution in the value of such Investment Products.

10.3   Investment Products deposited with the Bank or its custodian or nominee shall be at the sole risk of the Customer.

10.4   The provision of the Services does not constitute the Bank a trustee of the Customer or any of the Investment Products of the Customer save and except those Investment Products registered in the name of a nominee of the Bank and in the capacity of a bare trustee only. The Bank shall have no other obligations in respect of the Investment Products of the Customer except those contained in the Terms and Conditions.

10.5   The Bank is under no duty to examine or verify the validity of the ownership of or title to any Investment Products and in the absence of wilful misconduct or negligence by the Bank, shall not be liable in respect of any defect in ownership or title.

10.6   The Bank shall have no duty to ascertain whether there are any restriction on foreign ownership on any Investment Products, or the nationality of the owner of any Investment Products, or whether any Investment Products are approved for foreign ownership.

11.   Negative Pledge

The Customer shall not, without the Bank's prior written consent, assign, transfer, mortgage, pledge, charge, or create or permit to arise or exist any lien, security or other form of encumbrances of any nature on or over his right, title, interest and claim in or to any Investment Products held by the Bank for account of the Customer.

12.   Termination

Without prejudice to any other provisions in the Terms and Conditions, the Customer may terminate all or any Investment Accounts at any time by giving to the Bank not less than 30 days' prior notice in writing.

13.   Further Assurance

The Customer shall, at the request of the Bank, execute such documents and perform such acts as the Bank may consider expedient for the purposes of providing the Investment Accounts and/or the Services or in connection with the exercise of its rights, powers and remedies under the Terms and Conditions (including, without limitation, signing and filing any tax return, form, certificate or other instrument and providing any information or documents which the Bank or any of its nominees, custodians and/or agents is required by any tax authority of any applicable jurisdiction to sign, file or provide).

14.   Language

The English and the Chinese versions of all provisions in the Agreement and the Terms and Conditions applicable to the Investment Accounts Services shall have equal weight.

 

 

Jun 2017