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 Customer’s
application open any Account and/or provide any Service at its sole and
absolute discretion. The Bank may refuse an application for an Account and/or
Service for any reason. Any Account and/or Service opened, maintained and/or
set up shall be upon and subject to the Agreement and the Terms and Conditions
and subject to such other conditions and requirements as the Bank thinks fit.
2.4 To
enable the Bank to consider whether to open and/or provide the Customer with
any Account and/or Service, the Customer is required to supply to the Bank from
time to time the following documentation and information:
(a) the
Agreement together with any specific application form(s) for the relevant
Account and/or Services duly completed and signed by the Customer;
(b) a
self-certification from the Customer and/or the Customer’s owner(s)
or shareholder(s) as to his/their status in the Bank’s
prescribed form or in such other form
agreed by the Bank, or such other documentary evidence acceptable to the Bank;
and
(c) all
documentation and other information required by the Bank for the purpose of
performing the due diligence and identification procedures in relation to the
Customer in accordance with all Applicable Regulations and its internal policies
(including verification of the identity of the Customer or, as the case may be,
owner(s) or shareholder(s) of the Customer and source of funds and the nature
of business of the Customer).
2.5 The
Customer agrees that the operation of the relevant Account and the use of the
Service fully complies with and adhere to all Applicable Regulations and the
Rules.
2.6 The
Customer hereby warrants, represents and undertakes that:
(a) all
information (written or otherwise) furnished by the Customer to the Bank at any
time is true and accurate in all material respects and does not omit material
facts;
(b) the
Customer will from time to time provide such information and documents
(including any self-certification) as the Bank may from time to time require or
deem necessary for the purpose of the Bank Group’s
compliance with Applicable Regulations or any obligations imposed on any member
of the Bank Group under any present or future contractual or other commitment
with any Authority or compliance with the Bank’s internal
policy and procedures; and
(c) the
Customer will promptly notify the Bank in writing of any change in
circumstances that results in any change in any information furnished to the
Bank or any change in the status of the Customer (including any change in 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 Customer’s
business.)
3. Instructions
3.1 Instruction
must be given in any of the following manners:
(a) In
the case of verbal Instruction given by use of telephone, the Customer must
dial such number as designated by the Bank for the relevant type of Transaction
from time to time and at any time and the Customer must follow the procedure
and directions given by the Bank on the line through an officer of the Bank.
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 Bank’s sole
opinion, any Instructions to act or not to act, or any document presented to
the Bank or any intended Transaction involves or may involve any illegal or
unlawful activities (including money laundering, drug-trafficking, terrorist
financing, bribery, corruption or other activities that are prohibited or are
deemed illegal or unlawful by any Applicable Regulations) or does not otherwise
comply with Applicable Regulations or the Bank’s internal
policy, or may constitute a breach or violation of economic or trade sanctions imposed
by any Authority, the Bank has the absolute right:
(a)
not to act or to delay acting on
any Instruction or enter into or conclude any Transaction for or with the
Customer or any person;
(b)
to delay, block or refuse to make
any payment under or in connection with such Instruction or Transaction;
(c) not
to handle or process such Instruction or Transaction or the documents, and the
Bank shall not be liable for any delay or failure to pay, process or return
such documents or for any related disclosure of information.
3.14 The
Customer agrees and acknowledges that the Bank Group are required to act in
accordance
with Applicable Regulations and that the Bank Group may take such action as it
considers appropriate in accordance with or by reference to all such Applicable
Regulations and requests of Authority. The Bank may:
(a) investigate
any instructions, payment messages and other information provided to or passed
through the Bank; or
(b) report
suspicious transactions to the relevant Authority without reference to or
knowledge of the Customer and free of any liability whatsoever to the Customer
or any person.
3.15 Unless
the Bank otherwise agrees, no Instruction may be given for transfer of funds
from an Account of the Customer to another account which is not in the name of
the Customer.
3.16 Any
Instruction or Transaction outside the scope specified herein will generally
not be acted upon or effected by the Bank. However, if any Instruction outside
the scope specified herein is relied on or acted upon by the Bank, such
Instruction and all Transactions arising therefrom shall be binding on the
Customer.
4. Sufficiency
of Fund
4.1 Instructions
will not be acted on if there is
insufficient fund or pre-arranged credit available in the Account concerned.
The Bank, however, may in its discretion act on such Instruction despite the
lack of available fund without seeking prior approval of or giving prior notice
to the Customer. The Customer shall be liable for the resulting overdraft, advance or
credit and shall repay the same to the Bank on demand together with interest
thereon from the date of advance to the date of actual repayment (before and
after judgment) at 9% per annum above the best lending rate as conclusively
quoted by the Bank from time to time and compounded at such intervals as the
Bank may reasonably determine from time to time.
4.2 Without
prejudice to Clause 4.1, the Customer acknowledges that the Bank is entitled to
place order or enter into Transaction for the purpose of carrying out or
effecting any Instruction without first checking whether there is sufficient
fund or available pre-arranged credit in the Account concerned. In such a case,
if the Instruction or an intended Transaction concerned is carried out or
effected, the Bank is entitled (but not under any duty), at any time at its
discretion without giving notice to the Customer, to place other order or enter
into other Transaction to counter the Instruction so carried out or Transaction
so entered into as above and any loss, deficit or shortfall arising therefrom
or as a result thereof shall be entirely borne by and for the account of the
Customer and the Bank shall be entitled to debit the same against any of the
Account(s) of the Customer with the Bank. However, if there is any gain, such
gain shall belong absolutely to and be retained by the Bank for its own use and
benefit. For the above purpose, the Bank's certificate in writing as to such
loss, deficit or shortfall and the amount thereof shall be binding and
conclusive against the Customer, save for manifest error.
5. Notification
of Transaction
5.1 For
all Transactions concluded in relation to a Designated Account (except for (a)
a
Transaction
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 Customer’s legal
status, assets, financial or business condition;
(c) the
Bank's books and records show a zero balance on the Customer's Designated
Account(s) for a period of at least six continuous months or for such other
period as the Bank shall prescribe from time to time;
(d) there
is or appears to be irregularity in the operations of any Designated Account or
utilization of any Service, or the Bank suspects that the use of any Designated
Account or any Service does not comply with Applicable Regulations;
(e) conflicting
instructions are received by the Bank in relation to any Designated Account or
Service;
(f) any
proposed change to the Agreed Signing Arrangement for the time being of any
Designated Account or Service is not acceptable to the Bank;
(g) the
Bank shall have received claims from third party or parties on the fund or
other property or any part thereof in any Designated Account;
(h) the
Bank has determined in its absolute opinion that the Customer may possibly, for
whatsoever reasons, have lost his legal capacity to 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抯 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 Bank’s
determination of the applicability of such withholding or deduction requirement
under the Applicable Regulations shall be binding on the Customer and pending
the Bank’s
determination, the Bank has the absolute discretion to deposit any such monies
into a sundry or other account and/or retain such monies in such manner as the
Bank deems appropriate.
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.
17.10 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
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
(a) the
Bank will only take into account circumstances relating to the Customer which
the Customer has disclosed to the Bank or that the Bank should reasonably be
aware of;
(b) the
Bank will not take into account the Customer’s
investments which are held by the Customer outside the Bank (unless the
Customer has specifically disclosed such investments to the Bank);
(c) the
Bank makes no representation and does not guarantee the outcome or performance
of any investment made by the Customer;
(d) if
the Customer does not provide the Bank with the Customer’s
up-to-date financial situation, investment experience and investment
objectives, the Bank’s ability to assess the suitability of any
solicitation or recommendation may be affected;
(e) the
Bank may make available to the Customer general information or general
explanations about investments and investment strategies (including market
views, research and/or investment ideas which are widely available to customers
of the Bank) whether prepared by the Bank or others. Unless expressly
acknowledged by the Bank in writing, none of this information is personalized
or in any way tailored to reflect the Customer’s
particular financial situation, investment experience or investment objectives;
(f) where
the Customer instructs the Bank to enter into a Transaction, the Customer does
so on the basis that: (i) the Customer has carefully considered any information
provided by the Bank (whether tailor made or not) in connection with any
Transaction (including explanations of the risks and features of Transactions);
(ii) the Customer is satisfied with the information provided by the Bank (if
any) in connection with the Transaction (including explanations of its risks
and features); and (iii) the Customer had the opportunity to ask questions and
seek independent advice;
(g) the
Customer must promptly notify the Bank if the Customer does not understand any
information provided by the Bank (whether tailor made or not);
(h) subject
to and save as otherwise required by Applicable Regulations, the Bank does not
accept any responsibility for the performance or monitoring of the Customer’s
investments unless agreed with the Bank in writing;
(i) subject
to and save as otherwise required by Applicable Regulations, the Bank will not
advise the Customer on an ongoing basis on the making and/or disposal of
investments in the Customer’s accounts unless agreed with the Bank
in writing; and
(j) subject
to and save as otherwise required by Applicable Regulations, the Customer is
responsible for being fully apprised of market prices and conditions and the
effect of the same on any investments held by the Customer unless agreed with
the Bank in writing.
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抯 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 Bank’s 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 Customer’s request,
provide to the Customer the product specifications and any prospectus or other
offering document covering such derivative products; and (ii) the Bank will
provide, if applicable, a full explanation of the margin procedures and the
circumstances under which a Customer’s positions may be
closed without the Customer’s consent.
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
"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.
(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
10.3 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.
© Bank of Communications Co., Ltd. Hong Kong Branch (A joint stock company incorporated in the People’s Republic of China with limited liability). All rights reserved.
