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 17.4 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 10.6, 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.  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 branches in HKSAR and includes its successors and assigns.

           "Bank Group" means the Bank and its Affiliates and any of their branch/sub-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 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.

           "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, or (b) 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.

           "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.

           "Service" means any service provided or to be provided by the Bank under the General Investment Services.

           "Settlement Account" as the context requires has the meaning ascribed thereto in

           Clause 1.1 of Part B.

           "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.

 

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)    such other currency exchange transactions, spot or forward, as the Bank may permit;

(c)     outward remittance by telegraphic transfer;

(d)   the Investment Account Services; and

(e)    such other types of banking services as the Bank may from time to time introduce.

 

2.3     The Bank may from time to time upon a Customers 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 Customers owner(s) or shareholder(s) as to his/their status in the Banks 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 Groups 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 Banks 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 its name, registered place, tax residence status, register address and mailing address, constitution, shareholders (including any change in tax residence status), directors or company secretary, or the nature of the Customers 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. Before accepting such verbal Instruction by the Customer, the Bank may (but shall not be obliged to) require the Customer to quote the relevant Password and/or such other information or identification as the Bank may deem fit at the time; or

(b)    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, 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) and (b) 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 or facsimile 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 Banks 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 Banks 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 under the Investment Accounts Services which shall be governed by Part B, and (b) 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, and the particular Designated Account has no outstanding balance.

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 , (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).

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 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.

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. 

5.9      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.

5.10    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.

 

6.       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 10 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.

 

7.       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.

 

8.       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 10 as reasonably determined by the Bank.

 

9.       Specific Terms and Conditions

9.1      The Investment Accounts Services are subject to the provisions of Part B.

9.2      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 13.3).

 

10.     Notices and Announcements

10.1    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 of offices or branches 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).

10.2    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).

10.3    Subject to the provisions in Clause 10.5 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.

10.4    Subject to the provisions in Clause 10.5 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 10.6 below.

10.5    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 offices or branches 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).

10.6    Subject to the provisions in Clause 10.7 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 offices or branches 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, 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.

10.7    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 10.6.  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.

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

10.9    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 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.

 

11.     Amendments

11.1    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 10 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.

11.2    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.

 

12.     Agents and Correspondents

12.1    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.

12.2    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.

 

13.     Suspension and Termination

13.1    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.

13.2    The Bank is entitled to cancel the use of the 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.

13.3    Without prejudice to the generality of Clause 13.1 or 13.2, notwithstanding anything

           provided in the Agreement, the specific terms and conditions in Part B 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 Customers 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 authorize any Authorized Signatory(ies) or Authorized Person to continue to operate, his Designated Account(s);

(i)     a petition for winding-up 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.

13.4    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.

13.5    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.

13.6    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.

 

14.     Liability of the Bank

14.1    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 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).

14.2    Unless the Customer acts fraudulently or with gross negligence, 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.

 

15.     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.

 

16.     Set-off and Lien

16.1    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 at any offices or branches 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 the liabilities (whether actual or contingent) under any outstanding contract in respect of 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.

16.2    If any sum is due but unpaid under the Terms and Conditions or under any Transaction, the Bank may retain all or any 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 ny 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.

16.3    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 Banks determination of the applicability of such withholding or deduction requirement under the Applicable Regulations shall be binding on the Customer and pending the Banks 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.

 

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

17.1    Subject to Clause 10.7, 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 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.

17.2    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 a limited company, a certified true extract of the board resolution of the Customer; and (ii) 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.

17.3    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 10.7 and 17.4 of Part A.

17.4    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.

17.5    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.

17.6    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.

17.7    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.

17.8    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.

17.9    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.

17.10  In respect of any of the Designated Accounts, with the exception of 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.

17.11  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.

17.12  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 17.1 above and acknowledges that the same shall at all times be binding on the Customer.

17.13  The Authorized Signatory(ies) shall have continuous authority and powers to deal with the Bank in accordance with Clause 17.1 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 17.2 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.

17.14  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.     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.

 

19.     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.

 

19A.  Investment

19A.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 Customers 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 19A.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 19A.1 does not apply in respect of Customers that are Institutional Professional Investors or Exempt Corporate Professional Investors.

 

19A.2 For the purposes of Clause 19A.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 Customers 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 Customers up-to-date financial situation, investment experience and investment objectives, the Banks 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 Customers 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 Customers 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 Customers 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.

 

19A.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, unless otherwise agreed with the Bank or to the extent permitted under Applicable Regulations, 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.

 

20.     Miscellaneous

20.1    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.

20.2    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.

20.3    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 20.3 shall not be treated as interest but as agreed compensation.

20.4    The Terms and Conditions shall be binding on the successors or assigns of the Customer.

20.5    The Customer hereby warrants and represents that:

(a)    in the case of 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 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.

20.6    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.

20.7    The Customer expressly acknowledges that:

(a)    the foreign exchange markets are volatile and there may be fluctuation in prices resulting in loss, and all transactions shall be deemed to have entered into by the Customer upon the Customer 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.

20.8    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).

20.9             (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, name, address(es), telephone number(s), facsimile number(s) and/or email address(es).

(b)      The Customer 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 of offices or branches 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 Application 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 Authority 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.

20.10  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, or associate 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 20 and for disclosure to such persons as stipulated in this Clause 20.

20.11  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 Banks CE number; (ii) the nature of Services provided by the Bank to the Customer; or (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).

20.12  Where the Bank provides the Customer with Services in relation to derivative products: (i) the Bank will, upon the Customers 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 Customers positions may be closed without the Customers consent.

20.13  Clauses 20.11 and 20.12 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.

20.14  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.

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

20.16  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.

 

SCHEDULE I

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.

 

PART B: INVESTMENT ACCOUNTS SERVICES

 

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

1.       Definitions and Interpretation

1.1      In this Part B, 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.

           "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.

           "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 which the Bank is prepared to deal or handle under the Investment Accounts Services from time to time.

           "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. 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.

1.2      Unless otherwise stated, reference to Clauses means the clauses of this Part B.

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 B.

 

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 Products subject to such terms and conditions as the Bank may reasonably prescribe from time to time;

(c)     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;

(d)    dealing with proceeds obtained from sale or other disposal of Investment Products of the Customer in accordance with Instructions;

(e)    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;

(f)     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;

(g)    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);

(h)    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);

(i)     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

(j)     providing services ancillary or incidental to the services described above.

 

2.2      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; and

(j)     generally to do all acts and things which are necessary for or incidental to the provision of the Services.

 

2.3      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.

2.4      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 B 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.

2.5      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 en 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      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.

4.4      The Bank is not obliged to make any credit under Clause 4.1 or 4.2 above unless the Bank has received the Investment Products 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 by the Bank.

4.5      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 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.

 

 

 

 

 



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