1. |
Interpretation |
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1.1 |
In the
event of any conflict or discrepancy between these terms
and conditions and (a) the terms of any other agreement subsisting
from time to time between the Bank and the Customer or (b)
the terms of any agreement between such Customer and any
other Bank Affiliate in respect of dealings in Securities,
these terms and conditions shall prevail. For the avoidance
of doubt, the Terms and Conditions for Tele-electronic Banking
Service shall apply in relation to the giving of instructions
by telephone or via the Internet. |
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1.2 |
In these terms and conditions,
"Account" means the Securities Account and/or, as the case may be,
the Settlement Account;
"Application" means the application form signed by the Customer in
respect of the Securities Services;
"Bank" means Standard Chartered Bank (Hong Kong) Limited which is
registered for
Type 1 (dealing in securities), Type 4 (advising on securities),
Type 6 (advising on corporate finance) and Type 9 (asset management) regulated activities under
the Securities and Futures Ordinance with CE number AJI614 and its successors and assigns;
"Bank Affiliate" means any subsidiary of the Bank and any holding
company thereof and any subsidiary of any such holding company;
"Broker" means such broker or brokers as may be appointed from time
to time by the Bank to provide broking services in relation to the Securities
Services;
"Business Day" means any day (excluding Saturday and Sunday) on which
the Bank is open for the transaction of business in Hong Kong;
"Charge" means the charge created by clause 22;
"CCASS" means Central Clearing and Settlement System operated by
HKSCC;
"Charged Securities" means all Securities which are now or shall
come into the possession, custody or control of the Bank or, where appropriate
in the custody of the Nominee, from time to time and for any purpose whatsoever
which shall include any additional or substituted Securities and all dividends
or interest paid or payable, rights, interests, monies or property accruing or
offered at any time by way of redemption, bonus, preference, option or otherwise
on or in respect of such Securities or additional substituted Securities;
"Communication" means any notice, statement, request, demand for
payment, approval, consent or other communication to be given by the Bank to
the Customer or by the Customer to the Bank;
"Customer" means any customer, being an individual in his personal
capacity, signing, and named in, the Application and who has applied to the Bank
to subscribe to the Securities Services and in whose name the Securities Account
and the Settlement Account are maintained; where the Securities Services are
to be jointly subscribed by, and the Securities Account and the Settlement Account
are in the joint name of, two or more persons, then unless otherwise specified
or the context otherwise requires, "Customer" shall mean all of such
individuals collectively;
"Customer Company" means any company in respect of which the Customer
directly or indirectly:
(a) |
owns
not less than fifty per cent (50%) of the issued share
capital; or |
(b) |
controls
not less than fifty per cent (50%) of the voting rights
attaching
to the issued share capital; |
"Dealing System" means any automated dealing system which the Bank
may (but without obligation) from time to time provide for the purposes of the
Securities Services;
"Exchange" means The Stock Exchange of Hong Kong Limited;
"HKSCC" means the Hong Kong Securities Clearing Company Limited;
"Holding company" and "subsidiary" have the meanings
ascribed thereto in Section 2 of the Companies Ordinance;
"Hong Kong" means the Hong Kong Special Administrative Region of
the People's Republic of China;
"Hong Kong dollar" means the lawful currency for the time being of
Hong Kong and "HKD" shall be construed accordingly;
"Liabilities" means all monies, liabilities and obligations of whatsoever
nature whether actual or contingent which are now or at any time hereafter may
be or become due, owing or incurred from or by the Customer or any Customer Company
as primary or collateral obligations to the Bank or any Bank Affiliate and whether
or not accrued in connection with the Securities Account, the Settlement Account
or the Securities Services or for which the Customer or any Customer Company
may be or become liable to the Bank or any Bank Affiliate on any account or in
any manner whatsoever and in whatever currency (whether alone or jointly with
any other person and in whatever name, style or firm) together with interest
from the date of demand to the date of payment, legal costs and all other costs,
charges and expenses incurred by the Bank or any Bank Affiliate (where the Customer
consists of more than one person, then only monies, liabilities and obligations
due, owing or incurred by those persons jointly);
"Nominees" means such entity or entities as may be appointed from
time to time by the Bank to provide nominee services in respect of Securities
acquired for the Customer;
"Securities" has the meaning ascribed thereto in Part 1 of Schedule
1 of the Securities and Futures Ordinance and, for the avoidance of doubt, shall
include securities listed or traded on the Exchange or any stock exchange outside
Hong Kong;
"Securities Account" means the account opened and maintained by the
Customer with the Bank for the purposes of the Securities Services, and shall
include such account as may from time to time be re-designated or re-numbered;
"Securities Depositary" means any securities depositary, settlement
system, dematerialised book entry system or similar system, including, without
limitation, CCASS;
"Securities Services" means the services provided by the Bank to
the Customer of buying and selling Securities for the account of the Customer,
on instructions given by the Customer to the Bank by telephone, facsimile or
via the Internet, and all services related or incidental to such activity, in
accordance with these terms and conditions;
"Settlement Account" means the bank account or accounts established
and maintained by the Customer with the Bank which is designated by the Customer
from time to time to hold funds intended for the settlement of transactions in
the Securities Services and/or for the receipt of income, dividends and other
payments (if any) in connection with any Securities and/or for the payment of
any fees in connection with any Securities, or in the absence of any such designated
account(s) subsisting at the relevant time for whatever reason, any other cash
account(s) maintained by the Customer with the Bank, and shall include such account
as may from time to time be re-designated or re-numbered;
"United States dollar" means the lawful currency for the time being
of the United States of America and "USD" shall be construed accordingly;
"U.S. Person" includes any natural person who is
a citizen of or resident in the United States; a corporation, partnership or
other business organisation
organised or incorporated under the laws of the United States or any political
subdivision thereof, any estate or trust which is administered by an executor
or trustee who is a U.S. person or the income of which is subject to U.S. federal
income taxation regardless of its source; any account (other than any estate
or trust held by a dealer or fiduciary for the benefit of a U.S. person) and
any partnership or corporation organised and incorporated under the laws of any
foreign jurisdiction which was formed by U.S. person principally for the purpose
of investing in securities not registered under the United States Securities
Act of 1933. "U.S. Person" shall not include any
branch or agency of a United States bank or insurance company that is operating
outside the United
States for valid business reasons as a locally regulated branch or agency engaged
in the banking or insurance business and not formed primarily for the purpose
of investing in securities not registered under the United States Securities
Act of 1933. For purposes of this definition, the "United States" includes
the United States of America, its states, territories and possessions and the
District of Columbia. The Bank reserves the right to amend this definition of "U.S.
Person" by notice to the Customer as may be necessary to conform
to applicable
law and authoritative interpretation thereof. |
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1.3 |
In these terms and conditions, unless the context otherwise
requires:
(a) |
the
word "person" includes
any individual, company, firm, partnership, joint venture,
association,
sole proprietorship or other business entity; |
(b) |
words denoting one gender shall include all other genders; |
(c) |
words denoting the singular shall include the plural
and vice versa; |
(d) |
headings have been inserted for convenience of reference
and shall not affect
construction. |
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|
1.4 |
In these terms and conditions reference to an Ordinance is
to an Ordinance or law of Hong Kong and any subsidiary legislation
related thereto as from time to time amended, codified or re-enacted. |
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1.5 |
The Chinese translation of these terms and conditions is
provided for convenience only and the English version shall
prevail for all purposes. |
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2. |
Instructions |
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2.1 |
The Customer hereby authorises the Bank to buy and sell
Securities for the account of the Customer and otherwise deal
with Securities, receivables or monies held in or for the Securities
Account or monies held in or for the Settlement Account upon
the instructions of the Customer as given in accordance with
these terms and conditions. |
|
2.2 |
The Bank
is hereby authorised (a) to act as the agent of the Customer
relating to the purchase and sale of or other dealings in
Securities as well as the registration, withdrawal or collection
of Securities or distributions from Securities, or the exercise
of any rights or claims arising from or relating to Securities
including (without limitation) dividends, rights issues,
conditional cash offers or other corporate actions and (b)
to provide the Customer with information requested by the
Customer from time to time on the prices of or other information
relating to Securities. The Bank is not obliged to provide
the Customer with any translation of any such information
requested by the Customer or to ensure that such information
is true and accurate. For the avoidance of doubt, and without
prejudice to the generality of clause 23, the Bank will not
provide the Customer with advisory services or otherwise
advise the Customer in respect of the suitability of any
Security for the purpose of the Customer's investment in
Securities and the Customer shall rely on its own judgment
and decision with respect to investment in Securities. The
Bank shall have the absolute discretion to determine whether
or not to accept any instructions as to any transactions
in Securities given pursuant to these terms and conditions
by the Customer. The Bank shall not be obliged to
give any reason for any refusal to accept or delay in acting
on such
instructions, nor shall the Bank be held liable for the consequences
of any such refusal or delay unless caused by the fraud,
wilful default or negligence of the Bank. In particular (without
prejudice to the generality of the foregoing) the Bank may
refuse to act, or delay in acting, on instructions for the
sale of Securities if such Securities are not registered
in the name of the Bank or a Nominee or documents of title
relating to those Securities are not held by the Bank or
a Nominee or where in the opinion of the Bank such instructions
are contrary to any applicable laws, rules or regulations
and the Bank shall be entitled with the Customer's consent
to amend such instructions so that they comply with such
laws, rules or regulations. In accepting instructions from
the Customer, the Bank shall in all circumstances act as
the Customer's agent and not as principal. |
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2.3 |
Prior to giving instructions to sell any Securities, the
Customer will advise the Bank of any legal restriction on the
transfer of such Securities (including under the Securities
Act of 1933 (U.S.)) and will provide the necessary documents
to the Bank to satisfy legal transfer requirements. The Customer
is responsible for any delays, expenses and losses associated
with the compliance or failure to comply with any restrictions
on the transfer of Securities. |
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2.4 |
Where the Bank
requires a response from the Customer within a specified
time frame, the Customer acknowledges that failure
to respond within such specified time frame may result in the
Bank being unable to implement the Customer's instructions. |
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2.5 |
If an order cannot be executed or wholly executed, the Bank
shall be under no obligation to notify the Customer immediately.
Accordingly, if the Customer requires immediate confirmation
as to whether any transaction has been effected he should contact
the Bank subsequently. Instructions to buy or sell Securities
may be partially executed if the instructions cannot be fully
executed. Orders to sell or purchase Securities will, to the
extent not by then executed, lapse at the close of trading
hours on each Business Day. |
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2.6 |
Notwithstanding
the terms of any other agreement or course of dealing between
the Bank and the Customer, the Bank is requested and authorised,
but is not obliged, to rely upon and act in accordance with
any instruction, notice or other Communication which may
from time to time, be, or purport to be, given by telephone,
facsimile or via the Internet by the Customer (when applicable)
without inquiry or verification on the part of the Bank as
to the authority or identity of the person making or giving
or purporting to make or give such instruction, notice or
Communication and regardless of the circumstances prevailing
at the time of such instruction, notice or Communication
provided that the Bank reasonably believes such instruction,
notice or Communication emanated from the Customer. The Bank
shall not be liable for any losses suffered or incurred by
the Customer as a result of the Bank acting upon the same. |
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2.7 |
The Bank shall be entitled to treat an instruction, notice
or Communication given as provided in clause 2.6 as fully authorised
by and binding upon the Customer. The Bank shall be entitled
(but not bound) to act on or take such steps in connection
with or in reliance upon such instruction, notice or Communication
as the Bank may in good faith consider appropriate, whether
it be an instruction to acquire, purchase, sell, dispose of
or otherwise deal with Securities or transfer Securities from
the Securities Account or purports to bind the Customer to
any agreement or other arrangement with the Bank or with any
other person or to commit the Customer to any other type of
transaction or arrangement whatsoever, regardless of the nature
of the transaction or arrangement or the value, type and quantity
of the Securities involved and notwithstanding any error or
misunderstanding or lack of clarity in the terms of such instruction,
notice or Communication. |
|
2.8 |
In the event that
the Bank does not consider any communications to be genuine
or to have been given by the Customer or on its
behalf, the Bank may decline to act and the Customer hereby
releases the Bank from any liability whatsoever or howsoever
arising, directly or indirectly, from or as a result of the
Bank's inaction or omission. |
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2.9 |
The Bank may record all telephone conversations with the
Customer in order to verify the instruction or Communication
of the Customer but it shall not be obliged to do so. The Bank
may also maintain records of instructions or Communications
received from the Customer via the Internet. In case of dispute,
the Customer agrees to accept the contents of any such telephone
recording or computer record as final and conclusive evidence
of instructions or Communications from the Customer. |
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3. |
Appointment of Brokers, Nominees and Agents |
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3.1 |
The Bank
has express authority from the Customer to appoint Brokers,
Nominees and other agents including custodians and sub-custodians
and to terminate any such arrangements with said Brokers,
Nominees and other agents and to appoint replacement Brokers,
Nominees and/or other agents. The Bank shall use reasonable
care in the selection and appointment of such Brokers, Nominees
and/or other agents. |
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3.2 |
The Customer agrees that the Bank shall have full power and
authority to negotiate and agree for and on behalf of the Customer
all arrangements in respect of brokerage, nominee or custodian
services with Brokers, Nominee and/or custodians, or other
agents and, in relation to any termination, appointment or
replacement appointment, to instruct such Brokers, Nominees
and/or custodians or other agents to make suitable arrangements
in respect of the completion of transactions and transfer of
securities including, without prejudice to the foregoing the
transfer of securities into the name of a replacement Nominee. |
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4. |
Funding
of Purchases: Restrictions on Withdrawals |
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4.1 |
The Bank shall debit and make payments from the Settlement
Account without further instructions from the Customer, and
the Customer hereby authorises the Bank to debit the Settlement
Account:
(a) |
with an amount (including the purchase price and
all related accrued interests, fees, costs and expenses)
required to be paid by the Customer pursuant to any transaction
effected under these terms and conditions; and |
(b) |
all taxes, fees, disbursements, charges and expenses
properly payable by the Customer pursuant to these terms
and conditions or in respect of the purchase, sale, holding
or transfer of Securities or for such other dealings
in Securities. |
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|
4.2 |
It is a fundamental condition that the Customer shall
ensure, and the Customer undertakes and warrants, that at all
times there shall be available in the Settlement Account funds
sufficient to satisfy all payments due in relation to any purchase
of Securities instructions for which have been issued to the
Bank hereunder, including the relevant purchase price together
with the relevant stamp duties, relevant commissions and other
charges payable or to be incurred in connection with such purchase.
The Bank is authorised, at any time after receipt of such instruction,
at its discretion to place a stop order to earmark such amount
of the funds in the Settlement Account required to satisfy
all amounts payable in relation to such purchase. In
the event that the Settlement Account becomes overdrawn, the
overdrawn
amount will be considered a loan payable on demand, and shall
be subject to a rate of interest customarily charged by the
Bank for similar loans as determined by the Bank from time
to time. If there is no or insufficient cash held in the Settlement
Account in the currency in which the Customer has instructed
the Bank to make a payment, then the Bank is authorised (but
not obliged) by the Customer to make such conversions of cash
(at such rates of exchange as the Bank shall determine on the
date of conversion) held in any other currency in the Settlement
Account as may be required for such payment. |
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4.3 |
Notwithstanding any term of any other agreement between the Bank and the Customer, following
the giving of such instructions, and whether or not any earmarking of funds has been effected
as aforesaid, the Customer shall not be entitled to and shall not withdraw or otherwise utilise,
by cheque or otherwise, and the Bank shall not be obliged to release or pay out of the Settlement
Account, any of the amount required to settle the purchase unless and until the Bank is notified
that the instruction to purchase has for any reason not been executed and subject to rights arising
pursuant to clause 21. Accordingly, the Bank is irrevocably authorised, notwithstanding any
provision of any other agreement or arrangement between the Customer and the Bank from time to time:
(a) |
to refuse to honour any cheque or other
payment drawn or debited against the Settlement Account and/or to delay in taking any such action,
during any period between the issue of instructions to purchase Securities for the account of the
Customer and the application of funds payable in relation to the purchase the subject of such instructions;
and |
(b) |
to apply monies in the Settlement Account in
settlement of any sums payable in relation to any such purchase in priority to any other proposed
application of such funds instructed or purportedly instructed upon by the Customer. |
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|
4.4 |
The Customer acknowledges
and agrees that if at any time there are in the reasonable
opinion of the Bank (having regard
to other payments debited or due to be debited) insufficient
funds in the Settlement Account for these purposes the Bank
may (in the Bank's sole discretion and without any obligation
to do so on the part of the Bank) transfer funds as necessary
from any other account or accounts maintained by the Customer
with the Bank without further instruction or sanction from
the Customer. |
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4.5 |
For the purposes of placing a stop order on such funds in
the Settlement Account and/or prohibiting withdrawal or utilization
of such funds, the Bank shall be entitled to assess an approximate
amount using such guidelines as it may determine from time
to time and subsequently to adjust such amount following notification
by the Broker of the precise amount due from the Customer in
respect of such purchase. |
|
4.6 |
The Bank is authorised to deliver to the Brokers on behalf
of the Customer such funds, share certificates and other documents
relating to Securities as it may receive or hold in connection
with dealings in Securities effected pursuant to instructions
received or purportedly received from the Customer. |
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4.7 |
By these terms and conditions, the Customer expressly authorises
the Bank to part with possession of Securities for the exercise
of any lien or charge in these terms and conditions or pursuant
to any sale of Securities permitted by these terms and conditions
including any sale to realise monies to make any payment due
to the Bank pursuant to these terms and conditions. |
|
4.8 |
The Bank shall promptly credit to the Settlement Account
all cash received by it for the account of the Customer from
the sale of Securities held on behalf of the Customer pursuant
to these terms and conditions. |
|
4.9 |
The Bank reserves
the right to debit or credit the Settlement Account if it
has been inadvertently credited or debited. The
Settlement Account will be governed by current account principles.
The Bank's obligation to pay the Customer any amounts
and/or repay any funds in the Settlement Account is an obligation
of the Bank in Hong Kong, where the Settlement Account is opened. |
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4.10 |
The Customer agrees
that if the Bank shall for any reason fail to receive payment
for all or any part of any amount due
to be paid to the Customer in respect of any sale entered into
by the Customer or by the Bank on the Customer's behalf
on the due date for payment in accordance with the rules and
regulations of the relevant exchange and/or any applicable
laws, the Bank's obligation to make payment to the Customer
in respect of such sale shall by virtue of such failure become
an obligation to make payment of such amount as is equal to
such payment as is actually received by the Bank. |
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5. |
Customer's
Default in Funding |
|
5.1 |
Unless otherwise agreed between the Customer and the
Bank, the Customer agrees that if insufficient funds are available
in the Settlement Account as required by clause 4.2, the Bank
is authorised:
(a) |
In
the case of a purchase transaction, to transfer or
sell such
purchased Securities to satisfy the Customer's
obligations to the Bank; or |
(b) |
In
the case of a sale transaction, to borrow and/or purchase
such
sold Securities
to satisfy the Customer's obligations to the Bank. |
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|
5.2 |
The Customer acknowledges
that he will be responsible to and will indemnify and keep
indemnified the Bank from any loss,
costs, fees and expenses in connection with the Customer's
failure to meet his obligations by the settlement dates required. |
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6. |
No margin or credit facilities |
|
These terms and conditions shall apply to an account for
cash dealing only. Nothing in these terms and conditions shall
oblige the Bank or any Bank Affiliate to grant or maintain
any margin or credit facilities. |
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7. |
Registration
of Securities |
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7.1 |
Subject to the provisions of clause 7.2 and clause 21,
the Customer agrees that any Securities deposited with the
Bank or acquired by the Bank on behalf of the Customer or any
amounts paid to the Bank on behalf of the Customer shall be
dealt with in accordance with the instructions of the Customer
given in respect of the particular Securities or monies. |
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7.2 |
The Bank shall register Securities acquired for the Customer
in the name of the Bank or the Nominee or may deposit securities
with, or hold securities in, CCASS or any other Securities
Depositary on such terms as such Securities Depositary customarily
operates. |
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7.3 |
The Nominee shall hold Securities registered in its name
as the nominee of the Bank. The Nominee shall designate all
such Securities as held by it to the order of the Bank but
identified as being Securities held by the Bank for the Customers
and being identified as Securities of which the Bank is not
the beneficial owner. The Customer shall not give any instruction
to the Nominee direct. |
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7.4 |
The Customer acknowledges and agrees that Securities
from time to time acquired and/or held through or in CCASS
shall be held subject to and in accordance with
CCASS Rules. |
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8. |
Securities Fungible |
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8.1 |
Any securities deposited with the Bank or purchased for the
Securities Account may, at the absolute discretion of the Bank,
either be treated as fungible or specifically allocated to
the Securities Account. |
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8.2 |
Any obligation of the Bank to deliver, or to hold in safe
custody, Securities purchased or acquired on behalf of the
Customer shall be satisfied by the delivery; or the holding,
of Securities being identical with such Securities in terms
of number, class, denomination, nominal amount and rights attached
thereto (subject always to any capital reorganisation which
may have occurred in the meantime affecting such Securities). |
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9. |
Securities Account: Withdrawals |
|
9.1 |
Subject to clause 9.2, the Bank shall as soon as reasonably
practicable after having been required to do so by instructions
from the Customer:
(a) |
procure the registration of any Securities from
time to time forming part of the Securities Account in
the name of the Customer or a person notified by the
Customer as being the nominee of the Customer, or if
so instructed, deliver the documents representing the
Securities to the Customer or such a nominee whereupon
such Securities shall cease to form part of the Securities
Account; |
(b) |
transfer such sum as may be specified in the instructions
of the Customer from the Securities Account to the Settlement
Account and such transfer shall be deemed a good discharge
of the obligation to make payment to the Customer. |
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9.2 |
The obligations of the Bank in clause 9.1 shall be subject
to the other provisions of these terms and conditions and in
particular clause 21 and to the right of the Bank to require
that prior to any withdrawal the Customer discharges in full
all sums or liabilities actual or contingent owed by the Customer
or any Customer Company to the Bank or any Bank Affiliate.
The Bank may without Customer instruction or notice to the
Customer discharge any such liabilities out of monies standing
to the credit of the Accounts prior to implementing any registration
or transfer pursuant to clause 9.1 or otherwise may require
payment thereof to be made by the Customer prior to implementing
any registration or transfer pursuant to clause 9.1. |
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9.3 |
The Bank reserves the right to debit or credit the Securities
Account if it has been inadvertently credited or debited |
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10. |
Securities Account: Additions |
|
The
Customer may at any time request that the Bank accept delivery
or a transfer of Securities to be held as part of the Securities
Account. The Bank shall not be obliged to accept any such
request but, if it does so, the Securities so delivered or
transferred shall be held as part of the Securities Account
and shall be subject to these terms and conditions as if
they were acquired by the Bank on behalf of the Customer.
In such case, the Customer shall execute such instruments
of transfer and/or other documents as may be required to
transfer the Securities to the Securities Account and register
them in the name of the Bank or the Nominee, or deposit,
and hold, them in CCASS or any other Securities Depositary. |
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11. |
Trading Limits |
|
11.1 |
The Customer acknowledges that the Bank has the right to
set limits and parameters to control the Customer's ability
to use the Securities Services at the Bank's absolute
discretion and the Customer undertakes to comply with those
limits and parameters. Such limits and/or parameters may be
amended, increased, decreased, removed or added to the Securities
Services by the Bank in its absolute discretion and may include
(without limitation):
(i) |
controls over maximum order amounts and maximum order
sizes, |
(ii) |
controls
over the Bank's total exposure to the
Customer, |
(iii) |
controls over the price at which orders may be submitted, |
(iv) |
controls
over the origin of the Customer's orders
and |
(v) |
any other limits, parameters or controls which the
Bank may be required to implement under any applicable
law or regulation. |
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11.2 |
The Customer acknowledges that orders will be accumulated
over the trading day and the Bank will check all orders received
by whatever means of communication against the credit limits
and trading limits as specified by the Bank from time to time. |
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12. |
Execution of transactions by the Bank |
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12.1 |
In executing the Customer's instructions from
time to time:
(a) |
to acquire or purchase Securities, the Bank shall be
authorised at its discretion to transfer to the Customer
Securities owned or held by (i) the Bank or (ii) any
Bank Affiliate; |
(b) |
to sell or
dispose of Securities, the Bank shall be authorised
at its discretion to acquire or purchase such
Securities (i) for the Bank's own account or (ii)
for account of a Bank Affiliate. |
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12.2 |
The Bank will act as principal in the circumstances as described
in clause 12.1(a)(i) and clause 12.1(b)(i) and subject thereto
will act as an agent (in the capacity of a broker) and not
as a principal. |
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12.3 |
By reason
of physical restraints on the Exchange or on any other stock
exchange and rapid changes in the prices of Securities that
frequently take place, there may, on occasions and despite
the Bank's reasonable endeavours, be a delay in making prices
or in dealing at any specific time or "at best" or "at
market" The Customer agrees in any event to accept and
be bound by dealings which take place on his behalf and agrees
that the Bank shall not be liable for any loss arising by
reason of its failing, or being unable, to comply with any
terms of an order of the Customer unless caused by the fraud,
wilful default or negligence of the Bank. |
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12.4 |
The Bank may aggregate the Customer's order with the
Bank's own orders, and those of persons connected with
the Bank and its other customers. This procedure may operate
on some occasions to the Customer's advantage and on
others to its disadvantage. However, where the Bank has aggregated
its customers' orders, including the Customer's
order, with the Bank's own order it will give priority
to satisfying the orders of its customers in any subsequent
allocation if all orders cannot be filled. |
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12.5 |
Unless the Customer gives specific instructions to the Bank
to the contrary, the Customer acknowledges that all orders
or requests are good for the day only and that to the extent
unfulfilled they will lapse at the end of the official trading
day of the Exchange or, as the case may be, the stock exchange
outside Hong Kong on which the Securities in question are listed
or traded. |
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13. |
Short Sales |
|
13.1 |
The Customer agrees that all sale orders submitted to
the Bank are long sale orders, ie, the Customer represents
that the Security to be sold is owned by the Customer (or any
person for whom the Customer is acting) and that the Customer
has forwarded the Security to the Bank. |
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13.2 |
Whenever any instruction to be given by the Customer is an
instruction to sell in respect of Securities which the Customer
does not own i.e. is a short sale, the Customer undertakes
to inform the Bank immediately of the same. |
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13.3 |
The Customer acknowledges that the Bank will not accept an
instruction to sell for short account on behalf of the Customer.
The Bank shall not be responsible to the Customer for identifying
whether or not an instruction is to sell for short account. |
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14. |
Contract Notes |
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The Bank shall within the period from time to
time specified under the Securities and Futures Ordinance or
the subsidiary legislation related thereto or the rules of
the Exchange, or of any other stock exchanges as amended from
time to time, send to the Customer copies of the contract note
relating to any transactions in Securities effected by the
Bank for the Securities Account. The Bank shall despatch the
copy of the contract note to the Customer at the last mailing
address on record with the Bank. The Customer shall upon receipt
of the contract note examine the same and to promptly give
notice to the Bank if the Customer considers that any details
stated therein are incorrect in any respect. If the Bank does
not receive any written objection from the Customer within
the period stipulated in a contract note for this purpose,
the Customer shall be deemed to have accepted all the transaction
details contained as true and accurate in all respects. |
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15. |
Statements |
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15.1 |
The Bank shall send the Customer monthly statements showing
the position of the Securities Account and the Settlement Account.
Such statement shall be in the form and contain the information
as the Bank may from time to time determine. |
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15.2 |
The Bank shall send to the Customer such information relating
to the Securities Account and the Settlement Account as the
Customer may from time to time reasonably require in writing. |
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15.3 |
The Customer shall upon receipt of a monthly statement examine
the same. If the Bank does not receive any written objection
from the Customer in respect of any details stated in a monthly
statement within the period stipulated in the statement for
this purpose, the Customer shall be deemed to have accepted
the same as true and accurate in all respects. Notwithstanding
the foregoing, the Customer shall not have the right to object
to details contained in a monthly statement if those details
have already been previously stated in a contract note which
have been accepted by the Customer as true and accurate. |
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15.4 |
The Bank shall despatch the monthly statement and any other
information requested in accordance with clause 15.1 and clause
15.2 respectively to the Customer at the last mailing address
on record with the Bank. |
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16. |
Expenses and Fees |
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16.1 |
In consideration
of the Bank agreeing to provide the Securities Services,
the Customer agrees and acknowledges that the Bank shall
be entitled to charge the Customer fees and charges to be
computed on such basis as may be notified to the Customer
from time to time and the Bank shall be entitled at any time
to revise the level of fees and charges and/or impose charges
for any services subject to giving 30 days prior notice or
such lesser period as may be required by any applicable law
or regulatory authority. |
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16.2 |
The Bank is irrevocably authorised to debit the Settlement
Account with all fees and charges levied by the Bank, and to
so debit and pay to the Brokers or the Nominees as the Brokers
or the Nominees may direct or to any other payee entitled thereto,
all commissions payable in respect of such transactions and
all stamp duties, taxes, bank charges, transfer fees, registration
fees, interest and other expenses incurred or to be incurred
in respect of or in connection with the Settlement Account
or any dealings in Securities effected in pursuance of instructions
received or purportedly received from the Customer or holding
of Securities on behalf of the Customer pursuant to these terms
and conditions. |
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16.3 |
The Customer acknowledges that the Bank may pay CCASS, or
other Securities Depositaries, settlement fees on a consolidated
basis and the Bank is entitled to retain any rounding differences
as a result of the payment of such fees on such basis. |
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17. |
Dividends |
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All dividends and other distributions in cash
derived from Securities held by the Bank in the Securities
Account shall be credited to the Settlement Account. |
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18. |
Corporate Actions |
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18.1 |
The Bank
shall use reasonable endeavours to notify the Customer with
regard to communications in respect of distributions or pecuniary
entitlements requiring any election or decision by the Customer
received by the Bank or the Nominee in respect of Securities
held in the Securities Account and the Bank shall
not be liable for any non-receipt, delay or failure in forwarding
communications in sufficient time for instruction to be given
by the Customer save in the case of fraud, wilful default
or negligence of the Bank. In the absence of or delay in
receiving instructions from the Customer in response to a
notification in accordance with this clause 18.1, the Bank
shall be authorised, at its discretion, to take such steps
as it may consider expedient to enable it to provide the
Securities Services including the right to act or refrain
from acting in accordance with the default option as specified
in such notification. |
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18.2 |
The Bank shall not be under any duty to investigate or participate
in any meeting or any subscription, conversion or other rights
in respect thereof or as regards any merger, consolidation,
reorganisation, receivership, bankruptcy or insolvency proceedings,
compromises or arrangement or to take any affirmative action
in connection therewith or procure that the Nominee do so except
in accordance with written instructions issued by the Customer
and upon such conditions as to indemnity, provisions for expenses
and otherwise as the Bank may at that time require in its favour
and in favour of the Nominee. |
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18.3 |
The Bank shall be authorised in respect of Securities registered
in the name of the Nominee to do the following or instruct
the Nominee to do so:
(a) |
to request payment of and receive all interest,
dividends and other payments or distributions in respect
of the Securities; |
(b) |
where monies are payable to or for the benefit of the
Customer in respect of any of the Securities in more
than one currency, to collect them in such currency as
may be permissible by law and as the Bank may in its
sole and unfettered discretion
determine; |
(c) |
to surrender any of the Securities against receipt
of the monies payable at maturity or on redemption if
called prior to maturity and provided that where Securities
are called for redemption prior to maturity the Bank
and the Nominee shall have no duty or responsibility
to present the Securities for redemption, unless, after
call is made, the Customer requests the Bank in writing
so to do; |
(d) |
to complete and deliver on behalf of the Customer as
owner any ownership certificates in connection with the
Securities which may be required by law; |
(e) |
in its sole and unfettered discretion to comply with
the provisions of any law, regulation or order now or
hereafter in force which purports to impose on a holder
of any of the Securities a duty to take or refrain from
taking any action in connection with any of the Securities
or payments or distributions or monies payable in respect
of any of the Securities; and |
(f) |
to exchange any documents relating to any Securities,
where such documents have been issued in interim or temporary
form, for documents in definitive form. |
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19. |
Conflict of Interest |
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19.1 |
The Customer acknowledges that when the Bank deals for the
Securities Account it may have an interest, arrangement or
relationship that is material in relation to the investment
or transaction concerned. Such interests will not necessarily
be separately disclosed to the Customer prior to or at the
time of any transaction or at any other time. The following
interests of the Bank may affect the Customer (without limitation):
(a) |
the Bank may have acted, may be acting or may seek
to act as a financial adviser or lending banker to the
issuer (or any of its affiliated companies) of the Securities
in which the Customer may be dealing or may have advised
or may be advising any person in connection with a merger,
acquisition or take over by or for such issuer (or any
of its affiliated companies); |
(b) |
the Bank may have a holding, dealing, or market making
position or may otherwise be trading or dealing in the
Securities or assets of any kind underlying, derived
from or otherwise directly or indirectly related to such
Securities; |
(c) |
the Bank may have received or may be receiving rebates,
payments or other benefits for giving business to the
Brokers; |
(d) |
the Bank may have sponsored or underwritten or otherwise
participated in, or may be sponsoring or underwriting
or otherwise may be participating in a transaction; |
(e) |
the Bank may have been or may be an affiliate of an
issuer (or any of its affiliated companies) of the Securities
in which the Customer may be dealing. |
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|
19.2 |
Nothing herein contained shall be deemed to inhibit the Bank
from:
(a) |
instructing or otherwise procuring the purchase
for the Customer of Securities held by the Bank for its
own account or held by any other of its Customers; or |
(b) |
acting in any capacity for any other person or from
buying, selling, holding or dealing in any Securities
for its own account or that of any other Bank Affiliate
notwithstanding that instructions have at any time been
received from or on behalf of the Customer for the purchase,
sale or holding of or other dealing in the same or similar
Securities; or |
(c) |
purchasing or procuring the purchase for its own account
or for the account of any other of its Customers Securities
of the same type as or a similar type to any Securities
in respect of which instructions have at any time been
received
from the Customer;
and the Customer hereby acknowledges and agrees that the Bank may so act, buy,
sell, hold, deal, or instruct provided that in any such case the terms of any
such dealing are not less favourable to the Customer than they would have been
had the transactions been entered into with a party other than the Bank or one
of its Customers. |
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19.3 |
The Bank shall not be liable to account to the Customer for
any emoluments, commissions, profits or any other benefits
whatsoever earned by it in relation to any transaction in Securities
effected in pursuance of instructions received from the Customer. |
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19.4 |
The Bank shall not be under any duty to disclose to the Customer
any fact or thing which comes to its knowledge or notice in
the course of acting in any capacity for any other person or
in its own capacity. |
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20. |
Dealings with the Accounts |
|
The Customer agrees not to, and not to purport
to, assign, grant an interest over or otherwise deal in any
way with, nor (without the Bank's prior written consent)
to create or allow to subsist a charge, pledge or other encumbrance
over:
(a) |
the Securities Account or any Securities, receivables
or monies held in or for the Securities Account; or |
(b) |
all or any part of the monies from time to time standing
to the credit of
the Settlement Account. |
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21. |
Set-off and Lien |
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Notwithstanding anything contained herein or
in any other agreement between the Bank or any Bank Affiliate
on the one part and the Customer (or any Customer Company)
on the other part, the Bank may upon the occurrence of an Event
of Default set out in clause 36 and without prior notice to
or consent of the Customer, set off and withhold from, apply
and/or transfer (as the case may be) monies, securities and/or
receivables held in or for the Settlement Account, the Securities
Account or any other account held for the Customer (or, if
the Customer consists of more than one party, any one or more
of such parties) with the Bank (and whether or not such monies,
securities or receivables are held for the Customer individually
or jointly with others) against and in full or partial settlement
of Liabilities. For the purpose of exercising the right of
set-off or of discharging any sums or liabilities aforementioned,
the Bank may sell or dispose of any of the Securities or receivables
from time to time held in or for the Securities Account or
any other account with the Bank or a Bank Affiliate, if any
relevant obligation or liability is not discharged in full
by the Customer. The Bank or a Bank Affiliate shall be under
no duty to the Customer as to the price obtained in respect
of any such sale or disposal. The rights of the Bank set out
in this clause 21 shall be without prejudice and in addition
to any right of set-off, combination of accounts, lien or other
right to which the Bank or any Bank Affiliate is at any time
otherwise entitled (whether by operation of law, contract or
in any other manner whatsoever). The Customer hereby irrevocably
directs the Bank to take all necessary action and effect all
necessary transfers in this respect. |
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22. |
Charge Over Securities Account |
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22.1 |
The Customer hereby charges the Charged Securities as
continuing security for the payment and satisfaction on demand
of all Liabilities and the performance of all obligations of
the Customer under these terms and conditions and including
any costs, charges and expenses including legal fees of enforcing
these terms and conditions and the Charge contained in this
clause incurred by the Bank or any Bank Affiliate. |
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22.2 |
Upon the occurrence of an Event of Default set out in clause
36 or the failure of the Customer to settle the Liabilities
when due or perform its obligations under these terms and conditions:
(a) |
the Charge contained in this clause shall be immediately
enforceable; and |
(b) |
the Bank (or where appropriate the Nominee acting upon
instructions from the Bank) may, without notice to the
Customer:
i) |
appropriate, transfer or set-off the whole or
any part of any monies comprised in the Charged
Securities in or towards payment or discharge of
any of the Liabilities hereby secured; and/or |
ii) |
sell or dispose of the Charged Securities or
any part thereof either together or in parcels
in such other manner and for such consideration
(whether payable or deliverable immediately or
by installments) as the Bank may think fit. |
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22.3 |
The Bank and the Nominee shall not be in any way responsible
for any loss occasioned by action pursuant to clause 22.2 howsoever
arising. |
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22.4 |
Without prejudice to the generality of clause 22.2, the Bank
(or, where appropriate, the Nominee) shall be entitled to appropriate
to the Bank or sell or dispose of the Charged Securities or
any part thereof at the current market price thereof to any
Bank Affiliate without being:
(a) |
in any way responsible for any loss occasioned
thereby howsoever arising; and |
(b) |
accountable for any profit made by the Bank (or, where
appropriate, the Nominee as its agent) and/or any Bank
Affiliate. |
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22.5 |
In the event of any sale or disposal pursuant to this
clause 22, if less than all of the Charged Securities are to
be sold or disposed of, the Bank (or, where appropriate, the
Nominee) may in the Bank's absolute discretion select
which of the Charged Securities are to be sold or disposed
of. |
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22.6
|
In the event of any deficiency after the sale or disposal
of the Charged Securities, the Customer hereby undertakes to
make good and pay on demand to the Bank such deficiency. |
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22.7 |
The amounts realised by the exercise or enforcement of the
Charge contained in this clause shall be applied against the
liabilities of the Customer or any Customer Company in such
order of priority as the Bank may in its absolute discretion
determine. |
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22.8 |
The Charge contained in this clause is in addition to and
without prejudice to any collateral or other security which
the Bank or any Bank Affiliate may by these terms and conditions
or otherwise whether now or hereafter hold from or on account
of the Customer or any Customer Company and shall be a continuing
security notwithstanding any intermediate payment or settlement
of account or satisfaction of the whole or any part of any
sum or sums of money owing by the Customer or any Customer
Company. Without prejudice to the foregoing, the Charge contained
in this clause shall subsist and continue to have full force
and effect after the termination of these terms and conditions
until the Customer and any Customer Company has fully discharged
all of its obligations to the Bank and any Bank Affiliate. |
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22.9 |
Any monies realised pursuant to the Charge contained in this
clause may be placed and kept to the credit of a suspense account
for so long as the Bank or the relevant Bank Affiliate may
in its absolute discretion determine without any obligation
in the meantime to apply the same or any part thereof in or
towards discharge of any monies or liabilities due or incurred
by the Customer or any Customer Company to the Bank or any
Bank Affiliate. |
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22.10 |
The Charge contained in this clause shall not be prejudiced
any amendment or variation to these terms and conditions or
by the liquidation, insolvency or bankruptcy of the Customer
or any Customer Company. |
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23. |
Automated Quotations and Confirmations |
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23.1 |
The Customer acknowledges
that any quotes on the price of Securities, any market data
and any other information provided
via any automated quotation system maintained by the Bank (which
may be received or accessed by the Customer by internet, telephone
or other tele-electronic means) are provided by an independent
third party, subject to a disclaimer by such third party and
the Exchange to the following effect: "[Third party]
and The Stock Exchange of Hong Kong Limited endeavour to ensure
the accuracy and reliability of the information provided but
does not guarantee its accuracy and accepts no liability (whether
in tort or contract or otherwise) for any loss or damage arising
from any inaccuracies or omissions" The Bank is not responsible
for the accuracy, timeliness or completeness of such information. |
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23.2 |
All orders shall be executed at the then current market
prices and neither the Bank nor any of the Brokers represent
to the Customer that any order will be executed at a price
previously quoted to the Customer by way of an automated quotation
system or otherwise. |
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23.3 |
If the Customer has registered to receive SMS/email
order confirmation, the Customer will receive notification
from the Bank by SMS or email message (a) when an order has
been partially or fully executed on the Exchange, (b) when
the Exchange has accepted the Customer's instruction
to cancel an order, (c) when an order has expired because it
has not been executed by the close of the period of validity
of the order, and (d) when an order has been rejected either
by the Bank or the Exchange, for whatever reason. The
Bank gives no warranty as to the timeliness or reliability
of SMS/email
communications, and shall have no liability in the event that
the Customer fails to receive such communication. The Bank
will from time to time specify the scope and features of the
SMS/email order confirmation service, and may modify, expand
or reduce it at any time with or without notice. If the Customer
places his order via telephone, and has not registered to receive
SMS/email order confirmation, the Bank will endeavour to notify
the Customer by telephone of the status of an order. |
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23.4 |
Any written confirmation sent out by the Bank, in the form
of a contract note or monthly statement, shall (save in the
case of manifest error) be conclusive as to the price at which
any particular order has been executed and shall be deemed
to have been accepted by the Customer if not objected to in
writing by the Customer within the period (if any) stipulated
in such statement for this purpose. The Customer acknowledges
that any statement given over the telephone or by SMS or email
message or other electronic means as to the status of the Settlement
Account or any particular transaction is provided for information
only and is not binding on either the Bank or on any Broker. |
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24. |
Liability and Indemnity |
|
24.1 |
In the absence of fraud, negligence or wilful default,
neither the Bank nor any of its officers, employees or agents
shall be liable to the Customer for any loss suffered by the
Customer arising out of or connected with any act or omission
in relation to the operation of the Securities Services, the
establishment or maintenance of the Accounts and/or transactions
effected thereunder. |
|
24.2 |
In particular, without prejudice to the generality of the
foregoing, the Customer acknowledges and agrees that:
(a) |
the Bank shall not be liable to the Customer for
any loss suffered as a result of or connected with any
act or omission on the part of the Brokers or the Nominees,
CCASS or any other Securities Depositary, or other agents,
including custodians and sub-custodians, including, without
prejudice to the generality of the foregoing, any incorrect
or incomplete information or advice supplied or published
by the Brokers, CCASS, or the Nominees, any other Securities
Depositary to the Bank and subsequently communicated
to the Customer; |
(b) |
The Customer agrees that it shall be jointly and severally
liable with the Bank to any Broker for all obligations
to be performed by the Bank in respect of any transaction
in Securities conducted by the Bank as agent for and
on behalf
of the Customer. |
(c) |
the Bank shall not be obliged to give any advice as
to the selection of Securities to the Customer or to
provide discretionary management services to the Customer
under these terms and conditions, and each instruction
to effect transactions in Securities shall be decided
upon and issued by the Customer in reliance only upon
his own judgement and the Bank does not and will not
hold out itself or any of its directors, officers, employees
or agents as having the ability to advise or provide
information (other than information and advice of the
type referred to in clause 24.2(d) to the Customer on
transactions in Securities or any other matter connected
herewith; in the absence of fraud, negligence or wilful
default, the Bank shall have no responsibility or liability
whatsoever in respect of any such advice or information
given to the Customer whether or not such advice was
requested by the Customer; |
(d) |
notwithstanding clause 24.2(c) any written or oral
information or advice communicated from the Bank to the
Customer shall be limited to information or advice provided
to the Bank by the Brokers or other third parties for
the purposes of communication to the Customer and the
Bank shall have no responsibility or liability whatsoever
to the Customer in respect of any such information or
advice; |
(e) |
the Bank shall not be responsible for any failure,
delays, errors or inaccuracies in the transmission or
communication of instructions due to the breakdown or
failure of transmission or communication facilities or
to any other cause or causes beyond its reasonable control
including (without prejudice to the generality of the
foregoing) government restrictions, contract market rulings
or suspension
of trading; |
(f) |
the Bank
shall not be liable to the Customer for or in respect
of any losses or failure to comply or delay
in complying with its obligations under these terms and
conditions which is caused directly or indirectly by
force majeure, Act of God, war, terrorism, industrial
disputes, natural disaster, adverse weather conditions,
failure of communication systems or any other causes,
event or circumstances
beyond the Bank's reasonable control; |
(g) |
where instructions are given via the Dealing System,
the Bank has no responsibility for any delay, failure,
error, interruption or suspension in the transmission
or communication of instructions or information on prices,
or the mistaken receipt of any instructions by any other
party; |
(h) |
Brokers and Nominees are authorised to act upon any
instructions received by them (regardless of any delay,
error, interruption or suspension as aforesaid) and none
of the Bank, the Brokers or the Nominees shall be liable
for any losses or costs suffered or incurred by the Customer
as a result of the Brokers or the Nominees acting upon
the same; and |
(i) |
the Bank shall not be required to take any legal action
unless fully indemnified to its reasonable satisfaction
(as a prerequisite to taking such action) for all costs
and liabilities by the Customer. |
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|
24.3 |
The Customer agrees to indemnify the Bank against all claims
and liabilities arising, and all costs and expenses (including
legal fees and costs on an indemnity basis) which are of reasonable
amount and were reasonably incurred by the Bank, whether directly
or indirectly, out of or in connection with:
(a) |
the performance or exercise of their duties or
discretions under these terms and conditions; or |
(b) |
arising out of or in connection with any breach by
the Customer of the obligations of the Customer to the
Bank or any Bank Affiliate; or |
(c) |
any representation or warranty by the Customer being
or becoming untrue or
inaccurate; or |
(d) |
any costs incurred by the Bank or any Bank Affiliate
in the collection (whether by it or any third party agent
engaged by it for such purpose) of debts owed by the
Customer to the Bank or any Bank Affiliate; or |
(e) |
as provided in clause 5.2. |
|
25. |
Confirmation |
|
The Customer agrees to do such acts and things
and to execute such documents as are necessary or are in the
opinion of the Bank desirable to ratify or confirm anything
done by the Bank in the proper exercise of any right or power
conferred by these terms and conditions or any other agreement
entered into pursuant to these terms and conditions or relating
to the Securities Account, the Settlement Account or the Securities
Services. |
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26. |
Accuracy of Information |
|
26.1 |
The Customer represents and warrants to the Bank that
all information provided by the Customer from time to time
in connection with the establishment and operation of the Securities
Services (including without limitation information provided
in the Application and changes thereto notified by the Customer)
are true and accurate in every respect. The Customer acknowledges
that they constitute representations in reliance upon which
instructions from the Customer shall be accepted, and shall
be treated as part of the agreement constituted by these terms
and conditions. The Customer shall notify the Bank forthwith
of any material change in such information. |
|
26.2 |
The Bank shall notify the Customer of any material change
in the information on the Bank provided hereunder. |
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|
27. |
Joint Liability |
|
27.1 |
In circumstances where two or more persons have jointly subscribed
to the Securities Services by designation of the Securities
Account and the Settlement Account together: |
|
|
(a) |
the Bank may act on the instructions of either person
acting singly but each such person shall be jointly and
severally liable with the other person for any obligation
or liability incurred by either of them to the Bank in
connection with the Securities Services, the Securities
Account or the Settlement Account or otherwise under or
in connection with these terms and conditions; |
(b) |
upon the death
of any person, any Securities, deeds and property of
any description held in the joint names of
the Customer shall be held by the Bank to the order of
the survivor or survivors of the Customer subject to compliance
with the provisions of the Estate Duty Ordinance, but without
prejudice to the Bank's rights in respect thereof
arising out of any lien, charge, pledge, set-off, counterclaim
or otherwise or to any step which the Bank may deem fit
to take in view of any claim by any person other than such
survivor or survivors; and |
(c) |
the Bank shall be at liberty to release or discharge
any of such persons from their liability hereunder or to
accept any composition from or make other arrangements
with any of such persons without releasing or discharging
the other or others or otherwise prejudicing or affecting
the rights and remedies of the Bank against the other or
others, and none of them shall be released or discharged
by the death of any one of them. |
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|
28. |
Further Assurance |
|
The Customer hereby undertakes to the Bank to
do and/or execute any act, deed, document or thing which the
Bank shall require the Customer to do in connection with the
implementation, execution and enforcement of the agreement
constituted by these terms and conditions, including without
limitation the rights referred to in clause 21 and the Charge
referred to in clause 22, and the Customer hereby constitutes
the Bank the lawful attorney of the Customer to do or execute
all such acts, deeds, documents or things on behalf of the
Customer as the Bank considers necessary or desirable in connection
with such implementation, execution and enforcement.
|
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|
29. |
Compliance with Laws, etc. |
|
29.1 |
The Customer shall not instruct the Bank to do anything in
relation to the Securities Services, the Settlement Account
or the Securities Account which is a breach of or would involve
or result in the Bank, any Bank Affiliate, the Broker, the
Nominees or any other person being in breach of the Securities
and Futures Ordinance, the Rules of the Exchange, the Codes
on Takeovers and Mergers and Share Repurchases or any other
laws, rules or regulations in force or applicable to the conduct
of the business of dealing in securities in Hong Kong or elsewhere
or otherwise binding on the Bank, any Bank Affiliate, the Brokers
or the Nominees (whether or not having the force of law). |
|
29.2 |
The Customer acknowledges that he shall be solely responsible
for compliance with all obligations of disclosure under the
relevant provisions of Part XV of the Securities and Futures
Ordinance, the Codes on Takeovers and Mergers and Share Repurchases,
and any other applicable laws, rules or regulations relating
to disclosure of interests in securities in Hong Kong or any
other relevant countries, each as amended from time to time.
The Bank shall not be obliged to give notice of holdings to
the Customer in any form or by any time limit for such purpose
save any notice or statement to be issued as expressly set
out in these terms and conditions. The Customer acknowledges
that neither the Bank nor any Bank Affiliate, their respective
directors, officers or employees shall be liable for any loss,
cost or expense of the Customer from any failure or delay by
the Customer or any other person to disclose in accordance
with any such obligation nor any delay or default in notification
to the Customer as to the carrying into effect of instructions
and shall indemnify the Bank for any loss, cost or expense
arising from any such failure. |
|
29.3 |
The Customer undertakes to the Bank that the Customer will
not engage or attempt to engage, and that the Customer has
proper safeguards in place to prevent the Customer from engaging,
in any activity which may constitute market misconduct under
the Securities and Futures Ordinance and further agrees to
inform the Bank immediately if the Customer becomes aware of
any activity by any person that may result in the Customer
being involved in market misconduct. |
|
29.4 |
Due to money laundering or other requirements operating within
the relevant jurisdiction, the Bank may require identification
documentation or other information before the Customer is entitled
to enter into any transaction or before the Bank provides the
Customer with the Securities Services. The Customer acknowledges
that it may be so required and undertakes to provide the Bank
promptly with information or documentation as so requested. |
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|
30. |
Disclosure |
|
30.1 |
The Customer agrees that all personal data relating to the
Customer collected by the Bank from time to time may be used
and disclosed for such purposes and to such persons (whether
in or outside Hong Kong) as may be in accordance with the Bank's
policies on use and disclosure of personal data set out in
statements, circulars, terms and conditions or notices made
available by the Bank to its customers from time to time and
such data may be (a) used in connection with matching procedures
(as defined in the Personal Data (Privacy) Ordinance), and
(b) disclosed (by way of bank references or otherwise) to any
financial institution with which the Customer has or proposes
to have dealings to enable such financial institution to conduct
credit checks on the Customer; and (c) disclosed by the Bank
in the event that such disclosure is required by any securities
exchange or regulatory or governmental body having jurisdiction
over it (including without limitation the Exchange and the
Securities and Futures Commission) whether or not the requirement
has the force of law. |
|
30.2 |
Without limiting the Bank's rights under clause 30.1,
the Customer authorises the Bank to disclose to the Brokers
and the Nominees any information regarding the Customer and
the Customer's account relationship with the Bank, including
without limitation the Customer's security access codes,
balances on the Securities Account and the Settlement Account,
any information provided in the Application and changes therein
notified by the Customer, and such other information as the
Bank, the Brokers or the Nominees may deem necessary from time
to time for the purposes of the Securities Services, the transmission,
verification or execution of the Customer's instructions
or any purpose ancillary thereto. |
|
30.3 |
The Customer's information may be provided to a location
which does not have the legal protection of information equivalent
to Hong Kong. By accepting the Securities Services, the Customer
consents to the use of its confidential information in accordance
with this clause. |
|
|
|
31. |
Representations by Customer |
|
31.1 |
By applying to the Bank for the provision of the Securities
Services, the Customer hereby represents and warrants to the
Bank that:
(a) |
he
is not a U.S. Person; |
(b) |
he
has not been nor does he anticipate or expect to be
present in the United States for 183 or more days in
aggregate during a calendar year; |
(c) |
the
gains from his subscription, purchase, sale or other
transactions carried out pursuant to the Securities
Services are not effectively connected or related to
any U.S. Person or any US trade or business which the
Customer is engaged in or plans to engage in during
the calendar year; |
(d) |
the
Securities are not being acquired or held beneficially
by or for a U.S. Person, or in violation of any applicable
law; |
(e) |
unless
he advises the Bank otherwise, no instructions given
by the Customer will be on behalf of a plan subject
to the Employee Retirement Income Security Act of 1974
or any similar statute. |
(f) |
he
will not acquire or hold Securities beneficially by
or for any other person, or in violation of any applicable
law but he will be the beneficial owner of the Securities
Account; |
(g) |
he
is the person(s) ultimately responsible for originating
the transactions to be made on the Securities Account
and no other person stands to gain the commercial or
economic benefit or bear the commercial or economic
risk thereof; |
(h) |
he
is fully aware of, and understands fully the market
and the financial instruments being traded, in accordance
with his instructions given pursuant to these terms
and conditions, on the Exchange or any overseas stock
exchange, and he is familiar with and understands all
applicable laws, rules and regulations relating to
his trading operations including (without limitation)
those relating to insider dealing and other criminal
offences. In particular, the Customer represents and
warrants that he is fully aware of the Rules of the
Exchange, and will familiarise himself with and comply
with all guidelines posted on the Exchange's
website
(as amended from time to time). |
(i) |
he
acknowledges the Securities Services Risk Disclosure
Statements set out in these terms and conditions and
fully understands and accepts the risks (including
the risk of loss) described thereunder; |
(j) |
it
is his independent judgement and decision without reliance
on the Bank or its employees to enter into any dealings
in Securities ("Transactions" and he fully
understands the risks and consequences of his doing
so and agree to bear all consequences of Transactions.
The Bank and its employees shall have no liability
whatsoever in respect of the Customer's entering
into any
or all of the Transactions; |
(k) |
he
acknowledges that the Bank may require further information
from him or a third party on his financial standing
and investment objectives or to verify the same and
agrees to provide the same on request; |
(l) |
he
has full power and authority to enter into these terms
and conditions
and to exercise the Customer's right and perform the Customer's obligations
hereunder; and |
(m) |
all
the representations and warranties made by the Customer
remain true and
accurate at all times. |
|
|
|
|
32. |
Authorisation for Credit Enquiry |
|
The Customer authorises the Bank and any Bank
Affiliate to contact from time to time such credit reporting
agencies, credit bureaus and other information sources (both
in Hong Kong and overseas) as it deems necessary or desirable
for the Bank to open and to maintain the Securities Account
and request them to conduct a credit enquiry or check on the
Customer for the purpose of ascertaining the Customer's
financial situation and investment objectives. |
|
|
|
33. |
Applicable Rules and Regulations |
|
33.1 |
Every transaction in Securities made for or on behalf of
the Customer in Hong Kong or elsewhere and concluded through
and recognized by the Exchange or any overseas stock exchange
is subject to the relevant provisions of the constitutions,
rules, regulations, bye-law, customs and usages of the Exchange
or the relevant overseas stock exchange, HKSCC or the relevant
overseas clearing agency and of the laws of Hong Kong or the
jurisdiction in which the relevant overseas stock exchange
is located, each as amended from time to time. |
|
33.2 |
The rules of the Exchange and HKSCC or, as the case may be,
the rules of the relevant overseas stock exchange and clearing
agencies, in particular those rules relating to trading and
settlement shall be binding on both the Bank and the Customer
in respect of transactions concluded on the Customer's
instructions. |
|
33.3 |
The Customer acknowledges that, where required by the Exchange
or any other regulatory authority, the Bank shall provide all
relevant information concerning Customer's orders transmitted
and/or executed by whatever means. The Customer further acknowledges
and agrees that it will co-operate fully and promptly with
all requests by the Bank for the provision of any other information
in the Customer's possession, custody or control which
the Bank may be required to produce to the Exchange or any
other regulatory authority. |
|
|
|
34. |
Investor Compensation Fund |
|
In the event of a default (as defined in the
Securities and Futures Ordinance) committed by the Bank, the
Customer is entitled to claim against the Investor Compensation
Fund, as the same may be amended from time to time, established
under the Securities and Futures Ordinance for pecuniary loss
suffered by the Customer thereby to the extent provided for
in the Securities and Futures Ordinance. The Customer acknowledges
that the extent of such claim will be restricted as provided
in the Securities and Futures Ordinance and there can be no
assurance that any pecuniary loss sustained because of such
default will be recouped from the Investor Compensation Fund
in full, in part or at all. |
|
|
|
35. |
New Issues of Securities |
|
In the event that the Customer gives instructions
to the Bank to apply for Securities in a new issue of Securities
for listing on the Exchange, the Customer:
(a) |
authorises the Bank to make such application on
behalf of the Customer;
|
(b) |
warrants
that such application is solely for the benefit of
the Customer; |
(c) |
warrants
that the application for Securities to be made by the
Bank is and will be the only application made or intended
to be made for the benefit of the Customer and no other
application will be made by the Customer; |
(d) |
authorises
the Bank to represent and warrant to the Exchange (or
other relevant stock exchange) on the application form
that no other application is being made or is intended
to be made by the Customer itself or for the benefit
of the Customer
by any other person; |
(e) |
authorises
the Bank to disclose that the application made by the
Bank on
the Customer's behalf is the only application made or intended to be made
for the benefit of the Customer or by or for the benefit of the Customer; |
(f) |
acknowledges
that the representations, warranties and disclosure
referred to above will be relied upon by the Bank in
making the application and by the issuer of the Securities
in deciding whether or not to allot Securities to the
Bank on behalf of the Customer; |
(g) |
agrees
to indemnify and hold harmless the Bank and its directors,
employees and agents in full against any and all losses,
damages, claims, liabilities, costs or expenses arising
out of or in connection with any breach of the warranties
given in this clause 35 or any authorisation being
incorrectly given. |
|
|
|
|
36. |
Event of Default |
|
36.1 |
Any one
of the following events shall constitute an event of default
("Event of Default"):
(a) |
any liabilities becomes overdue;
|
(b) |
the
Customer's failure to pay any purchase price of
Securities or other payments under these terms and conditions
when due; |
(c) |
the
filing of a petition in bankruptcy, or the commencement
of other analogous proceedings against the Customer and
in the case where there are two or more persons as the
Customer any such filing, or proceedings in respect of
or against
any one of them; |
(d) |
any
attachment, execution or similar process is levied against
an Account; |
(e) |
default
by the Customer in the due performance or observance
of any of these
terms and conditions; |
(f) |
any
representation or warranty made in these terms and conditions
or in any document delivered to the Bank pursuant to
these terms and conditions being or
becoming incorrect; |
(g) |
any
consent or authorisation required by the Customer to
open an Account in accordance with these terms and conditions
being wholly or partly revoked, suspended, terminated
or ceasing to remain in full force and effect; or |
(h) |
the
occurrence of any event which, in the sole opinion of
the Bank, might jeopardise any of the rights of the Bank
or any Bank Affiliate under these terms
and conditions. |
|
|
36.2 |
If an Event of Default occurs, the Bank may at its sole discretion:
(a) |
cancel any or all outstanding orders or any other
commitments made on behalf of the Customer; |
(b) |
close
any or all contracts between the Bank and/or any Bank
Affiliate and
the Customer;
|
(c) |
cover
any short position with the Bank through the purchase
of Securities on an exchange or liquidate any long
position with the Bank through the sale of Securities
on an exchange; |
(d) |
call
upon any securities which may have been issued in favour
of the Bank and/or any Bank Affiliate as security for
the obligations of the Customer in
respect of an Account; |
(e) |
exercise
any right of set-off or combination of Accounts conferred
by these
terms and conditions or otherwise; and/or |
(f) |
immediately
close the relevant Account(s). |
|
|
36.3 |
Any determination of whether an Event of Default has occurred
shall be made by using reasonable judgement. The Customer undertakes
to notify the Bank immediately in writing of the occurrence
of any such event which shall constitute an Event of Default
(although any failure to so notify the Bank will not prevent
an Event of Default from having occurred). |
|
|
|
37. |
Termination and Suspension |
|
37.1 |
The agreement set out in these terms and conditions may be
terminated at the Bank's sole discretion at any time
by the Bank and may be cancelled by the Customer giving to
the Bank not less than 14 days notice in writing. Any such
termination shall not affect any right or liability in respect
of services provided by the Bank, transactions already effected
by the Bank or any instruction given by the Customer under
these terms and conditions. These terms and conditions will
continue to apply until all services, accounts and transactions
have been closed or completed and the outstanding amounts and
liabilities have been paid in full. |
|
37.2 |
The agreement set out in these terms and conditions shall
forthwith terminate upon the death or upon a legally recognised
declaration of incapacity or incapability of the Customer but
all acts performed by the Bank, the Brokers and/or the Nominees
prior to receiving written notice of such death, incapacity,
incapability, shall be valid and binding upon the Customer
and the successors in title or permitted assigns of the Customer. |
|
37.3 |
Where the Customer
consists of more than one person, and one of the events described
under clause 37.2 occurs in respect
of one of those persons (the "Affected Person",
from the time of the occurrence of such event the Customer
shall consist of the other persons previously constituting
the Customer prior to such event. The Affected Person shall
remain liable as part of the Customer under these terms and
conditions in respect of Liabilities incurred up to the occurrence
of the relevant event. |
|
37.4 |
The Bank may at any time by giving notice to the Customer
and without disclosing any reason therefor, suspend the services
provided pursuant to these terms and conditions and the operation
of the Securities Account until further notice. |
|
37.5 |
Without prejudice to the generality of clause 37.1, the Bank
may in its absolute discretion close the Securities Account
if there is a zero balance on the Securities Account for such
period as the Bank may determine from time to time. |
|
|
|
38. |
Procedures on Closure of the Accounts |
|
38.1 |
Upon termination of these terms and conditions pursuant to
clause 37 the Bank will close the Account in accordance with
the standard procedures as may be adopted by the Bank from
time to time. |
|
38.2 |
These terms and conditions shall apply until all Securities
have been transferred from the Securities Account, all sums
due to the Customer and all obligations of the Customer to
the Bank fulfilled. |
|
38.3 |
On termination by either party, the Bank shall be entitled
to receive from the Customer all fees, costs, charges, expenses
and liabilities accrued or incurred under these terms and conditions
up to the date of termination including any additional expenses
or losses reasonably and properly incurred in terminating these
terms and conditions. |
|
|
|
39. |
Notices |
|
39.1 |
Any Communications or notices required or permitted to be
given by or on behalf of the Bank to the Customer may be given
in writing and sent by mail (postage prepaid) or facsimile
addressed to the Customer at the last mailing address or facsimile
number on record with the Bank. |
|
39.2 |
All Communication and documents so sent under clause 39.1
shall be deemed to have been received by the recipient:
(a) |
if sent by letter: 24 hours after posting if mailed
to an address in Hong Kong, or 7 days after posting if
mailed to an address elsewhere, save that in the case
of legal process these periods shall be increased to
7 and 21 days respectively; and |
(b) |
if sent by facsimile: when dispatched. |
|
|
39.3 |
Each of the other
joint applicants (if any) irrevocably appoints the person
named as "Primary Applicant" in the
Application as his agent for the purpose of service by the
Bank of such notices, demands or other communications as well
as any legal process arising in connection with the agreement
constituted by these terms and conditions or the Securities
Services. Any notice to the "Primary Applicant" will
be deemed effective notification to all joint applicants. |
|
39.4 |
Any communication from the Customer to the Bank shall be
irrevocable and shall not be effective until actually received
by the Bank at its designated address and/or in the designated
manner. |
|
|
|
40. |
Governing Law and Submission to Jurisdiction |
|
40.1 |
These terms and conditions shall be governed by and construed
in accordance with the laws of Hong Kong. |
|
40.2 |
The Customer hereby:
(a) |
irrevocably submits to the non-exclusive jurisdiction
of the courts of Hong Kong and of any country where the
Customer has assets now or in the future; |
(b) |
waives
any objections on the grounds of venue, forum non convenient
or similar
grounds; and |
(c) |
consents
to service of process including any writ, judgment
or other notice
by mail to the Customer's address on the Bank's records or to such
other address as may subsequently be notified in writing to, and received by,
the Bank. |
|
|
40.3 |
The Customer hereby acknowledges that if any dispute or difference
of any kind whatsoever shall arise between the Customer and
the Bank in connection with or arising out of these terms and
conditions, then the Bank may refer such dispute or difference
to arbitration in accordance with and subject to the provisions
of the Arbitration Ordinance or any statutory modification
thereof for the time being in force and any such reference
shall be deemed to be a submission to arbitration within the
meaning of such Ordinance. |
|
|
|
41. |
Miscellaneous |
|
41.1 |
These terms and conditions supersede all prior agreements
or arrangements between the Bank and the Customer relating
to the Bank effecting transactions in investments or holding
investments for the Customer and any such arrangements or agreements
are hereby terminated and shall be of no further force and
effect. |
|
41.2 |
The Bank
shall be entitled at any time by giving reasonable notice
to amend or supplement any or all of these terms and conditions
(subject to the provisions of clause 16.1 in the case of
any revision to the level of fees and charges). |
|
41.3 |
The Customer may not vary, amend or supplement these terms
and conditions without the prior written consent of the Bank. |
|
41.4 |
The Bank may, in its absolute discretion, extend the services
provided under these terms and conditions to cover securities
listed or traded on any other stock exchange or market outside
Hong Kong in which case the Bank may supplement these terms
and conditions in accordance with clause 41.2. |
|
41.5 |
If any of these terms and conditions is held or deemed to
be void or unenforceable, the other terms will remain in full
force and effect. |
|
41.6 |
The authorised signatories for the Settlement Account shall
be the authorised signatories for the Securities Account with
the same limitation (if any) on signing authority, and the
signature(s) of the Settlement Account shall be the Customer's
specimen signature(s) for operating the Securities Account. |
|
41.7 |
The failure of the Bank to exercise or delay in exercising
a right or remedy provided by these terms and conditions or
by law does not constitute a waiver of the right or remedy
or prevent further exercise of the right or remedy or another
right or remedy. |
|
41.8 |
The Customer may not assign, transfer, charge or otherwise
dispose of rights or obligations in respect of the Account
or pursuant to these terms and conditions without the prior
written consent of the Bank. |
|
41.9 |
The Bank may assign all or a part only of its rights and
obligations under these terms and conditions without the prior
consent of the Customer. |