Terms and Conditions Agreement

Terms and Conditions Agreement2019-01-28T22:10:47+00:00

1. Terms and Conditions

1.1 SG is hereby requested and authorized by customer to act as broker or as agent or as principal to execute customer’s Investment order(s). SG is authorized to take the opposite position to customer’s order(s) on SG”s own account. SG is also authorized at its election and without notice to customer to cancel any order(s), whether open or close, given to SG by customer, at any time prior to their execution. Customer will take full obligation and responsibility for any sort of consequence whatsoever that may result from the execution of customer’s order(s).
1.2 Customer will at all times maintain, without any call or notice by SG, the minimum margin required by SG, and upon call from SG, customer will deposit with SG on or before the time and date prescribed by SG and/or maintain forthwith additional margins and/or other funds which SG may at its absolute discretion deem necessary for SG’s protection. Customer fully understands that the minimum margin can be changed from time to time at SG’s absolute discretion. Upon failure for any reason to deposit and/or maintain such margins and/or other funds, or customer request to terminate this agreement, or in the event SG terminates this agreement as hereinafter provided, customer will confer upon SG the right, at SG’s election and without any call or notice and at customer’s risk, to close out the whole or part of such open transaction(s) which may be left unliquidated, or to take any action(s), at SG’s discretion at any market price at any time SG thinks fit. Customer will be liable for any loss or deficiency resulting therefrom. The enforcement of any right hereunder shall not operate as any waiver, release or discharge of any deficit or debit balance which may occur in customer’s account(s) with SG.
1.3 Customer will pay the commission and/or any other expenses incurred from the trading, as prescribed by SG, immediately after execution of each transaction and SG is hereby authorized to deduct such commission/expenses from the margin deposit in customer’s account(s) with SG. In case the margin deposit in customer’s account(s) is insufficient to cover such commission/expenses then the unpaid balance of such commission/expenses shall automatically become a debit balance in customer’s account(s) which will be subject to the conditions stipulated in Articles 1.12 and/or 1.13.
1.4 Customer will observe and accept all rules, margin deposit requirements, trading facts, time table(s) for placing order(s), taking delivery and/or other matters for and related to Investments as prescribed by SG from time to time.
1.5 SG is specifically authorized by customer to transfer such necessary amount from customer’s trading margin, without any call, or notice by either party, to SG as trading margin/funds to cover trading loss relating to customer’s Investments.
1.6 SG is specifically authorized by customer to transfer trading margin/trading profits resulting from any trading in customer’s Investments with SG from SG to customer’s account without any call or notice by either party.
1.7 All receipt/margin receipt issued to customer must bear the authorized signature(s) of SG and such margin deposit is subject to transfer under Articles 1.5 and/or 1.6.
1.8 Customer is advised to deposit any funds/margin deposit directly to SG during normal office hours and collect a receipt/margin receipt simultaneously. Customer shall not hold SG responsible for any losses and/or deficiency of all funds including but not limited to deposits and trading margin paid by customer to SG through customer’s representative or any of SG’s staff member until and unless the funds are actually collected by SG from customer’s representative or any of SG’s staff member and a receipt/margin receipt bearing the authorized signature(s) of SG thereof is issued to customer.
1.9 All orders for actual delivery must be instructed by customer in writing and confirmed by SG at the time the orders are placed. The time and place of delivery will be decided by SG at SG’s discretion. SG shall be entitled, at its absolute discretion, to refuse to act on any of customer’s instructions and shall not be obliged to give any reason for such refusal.
1.10 Any and all Investments, now or thereafter to be held or carried by SG for customer are to be held by SG as security for the payment of any liability of customer to SG.
1.11 In addition and without prejudice to any general liens or other similar rights which SG may be entitled under law or this agreement, SG at any time without notice to customer, may combine or consolidate the accounts held by customer and SG may set off or transfer any monies, Investments or other property in any of his accounts to satisfy obligations or liabilities due to SG, whether such obligations and liabilities are actual or contingent, primary or collateral, secured or unsecured, or joint or several.
1.12 Debit balances in customer’s account(s) will be charged interest at such rate(s), not exceeding Hong Kong Prime Rate plus 5% or 5% above SG’s cost of fund subject to fluctuation, whichever is higher at SG’s discretion, as demanded by SG and be calculated and payable on the last day of each calendar month or upon any demand being made by SG.
1.13 Debit balances in customer’s account(s) shall be charged with such charges as SG deems necessary to cover SG’s facilities and extra services.
1.14 All funds paid to SG whether as deposit or trading margin shall not earn any interest from SG.
1.15 Customer may make withdrawals from his margin account(s) by giving SG at least seven (7) business days notice in writing of his intention to withdraw. Payment will be made to customer before the expiration of the said seven (7) business days. The amount to be withdrawn by customer must not exceed the credit balance in the said account after deducting the necessary margin and the amount of customer’s gross floating losses calculated on customer’s open positions/contracts at the date of customer’s written notice.
1.16 Business days shall refer to the business days of the relevant market(s) in which customer is trading
1.17 SG may effect transaction with any customer, and SG may take the opposite position to customer’s order(s), whether on SG’s own account or on behalf of other customers of SG.
1.18 SG may effect transactions in Investments where SG has a position, and SG shall not be obliged to account for any profits or benefits obtained.
1.19 SG is entitled to electronically record customer’s telephone conversations with SG or any of SG’s representatives with or without the use of any automatic tone warning device, such recording and transcripts may be used for any purpose, including as evidence in any dispute between customer and SG and such recording shall remain the sole property of SG.
1.20 This agreement shall continue in full force and effect until receipt by SG from customer of written notice of its termination six (6) days prior to the effective date of the termination or receipt by customer from SG of any written notice of its termination in either event and at SG’s election, SG may liquidate customer’s account(s) as hereinabove provided or transfer customer’s account(s) to such broker or commission merchant as SG shall designate.
1.21 If there is any alteration in customer’s registration with SG, customer will notify SG, in writing. Customer understands that any such alteration could only become effective three (3) days after SG is in receipt of customer’s written notice to this effect and customer will take full responsibility for any consequences caused by customer’s change of particulars in registration.
1.22 Communication may be made to customer at the address of the customer given herein or at such other address as the customer may hereafter give to SG in writing. All communication so made whether by post, telex, cable, fax, email, telephone, messenger or otherwise shall be deemed to have been given to the customer when deposited in the mail, received by a transmitting agent, transmitted by the sending machine, telephoned, delivered personally to customer’s address, whether actually received or not.
1.23 Any member or employee or authorized representative(s) of SG is/are hereby expressly permitted to visit and discuss with customer at customer’s place of business or residence in reference to any account(s) of customer with SG.
1.24 Customer hereby acknowledges and admits that customer will take full obligation and responsibility for any sort of consequence whatsoever that may result from the Investment orders of customer. Although such orders may be based on opinion given by any one of SG’s employees, customer hereby further acknowledges and admits that customer fully understands that such opinion does not assure customer of any profit resulting from such trading.
1.25 All transactions for customer shall be subject to the relevant constitution, rules, regulations, by-laws, customs and usages, as amended from time to time, of The Chinese Gold & Silver Exchange Society, or such other exchanges or markets or over-the-counter markets (“Exchange(s)”) and the clearing houses in or outside Hong Kong (“Clearing House(s)”) and of the laws and other applicable rules and regulations of Hong Kong and other places in which SG is dealing on customer’s behalf or with customer, each as amended from time to time. SG shall not be liable to customer as a result of action taken by SG or its employees, agents or counterparties to comply therewith. The rules of the Exchange(s) and Clearing House(s), in particular those rules which relate to trading and settlement, shall be binding on customer in respect of the transactions concluded on the instructions of customer.

2. Electronic Trading Services

2.1
Upon customer’s request, SG may provide customer with Electronic Trading Services (being the electronic facility which enables customer to give instructions to, and obtain information and services from SG in relation to Investments) which include but not limited to SG’s e-trading system and SG’s website. Customer acknowledges that the usage of SG’s Electronic Trading Services is subject to the terms and conditions to be specified by SG from time to time and any applicable laws and regulations.
2.2
When using SG’s Electronic Trading Services, customer hereby warrants that he is the only authorized user of SG’s user identification code(s), password(s), login name(s) or personal identifier(s) (“Access Codes”) as may be issued by SG from time to time and customer shall accept full responsibility for all instructions placed with the use of his Access Codes (whether authorized by customer or not).
2.3
Customer shall not attempt to tamper with, de-compile, modify, reverse engineer or otherwise alter in any way, or gain unauthorized access to SG’s Electronic Trading Services.
2.4
When customer opens an electronic trading account with SG, he shall duly complete and return the Application Form for Electronic Trading Services. In addition, customer hereby agrees to return to SG the hard copy of this agreement and client information statement duly completed and executed by customer together with any required documents as soon as practicable.
2.5
SG shall not be deemed to have received customer’s instructions or executed its order(s) unless and until SG’s message acknowledging receipt or confirming execution of customer’s order(s) is received by customer.
2.6
Customer agrees to pay all subscription, service and usage fees, if any, that SG may charge it for the Electronic Trading Services and agrees that such fees may be changed without notice.
2.7
Customer expressly agrees that SG may communicate with or give notice to customer via SG’s Electronic Trading Services or by other electronic means or facilities and that any such notice or communication delivered to customer by SG by electronic devices through the Electronic Trading Services or otherwise shall be deemed to have been received at the time of transmission of the message to customer.
2.8
Customer acknowledges that it may not be possible to amend or cancel his instructions or orders once given and hereby agree to carefully review every order before it is made.
2.9
Customer understands and accepts that SG may at any time in its sole discretion and without prior notice to customer, suspend, prohibit, restrict or terminate customer’s access to the Electronic Trading Services and his ability to trade. The suspension, prohibition, restriction or termination of access or closing of the electronic account by SG will not affect the rights and/or obligations of either party incurred prior to the time of the suspension, prohibition, restriction or termination of access or closing of the electronic account.
2.10
Customer is fully aware that the financial data or other information published by third parties are provided in SG’s Electronic Trading Services for the purpose of information and reference only. By reason of market volatility and possible delay in the data transmission process beyond the control of SG, such data may not be real-time market quotes whether for the Investments or otherwise. Whilst SG considers such data to be reliable, SG has no independent basis to verify or confirm the accuracy or completeness of the information provided. Customer shall in no way treat such data provided in SG’s Electronic Trading Services as a warranty, recommendation or endorsement from SG in respect of any Investments.
2.11 Customer acknowledges and agrees to immediately notify SG if:-

  1. an instruction has been placed through the Electronic Trading Services and customer has not received an instruction number and has not received an accurate acknowledgement of the instruction or of its execution (whether by hard copy, electronic or verbal means);
  2. customer has received acknowledgment (whether by hard copy, electronic or verbal means) of a transaction which customer did not instructs or becomes aware of any similar conflict;
  3. customer becomes aware of any of the acts stated in Article 2.3 being done or attempted by any person;
  4. customer becomes aware of any unauthorised use of customer’s Access Codes; or
  5. customer has difficulties with regard to the use of the Electronic Trading Services.
2.12
Customer hereby acknowledges that any information provided in SG’s Electronic Trading Services is provided on an “as is”, or as available basis. SG does not confirm, warrant or guarantee the timeliness, sequence, accuracy, adequacy or completeness of such information and gives no express or implied warranties (including but not limited to warranties of merchantability or fitness for a particular use) in respect of such information.
2.13
Customer agrees that neither SG nor its officers, employees, agents, third party electronic information providers
(“Information Providers”) or third party electronic information transmitters (“Information Transmitters”) shall be liable for
any loss or damage:-
  1. of any kind, whether direct, indirect, special, consequential or incidental, resulting from access or use of or reliance on information supplied by, or inability to access or use, the Electronic Trading Services, including without limitation damage resulting from the act, omission, mistake, delay or interruption of the Information Providers or the Information Transmitters, even if SG, its officers, employees, agents, the Information Providers or the Information Transmitters have been advised of the possibility of such loss; or
  2. resulting from a cause over which SG, its officers, employees, agents, Information Providers or Information Transmitters do not have control, including but not limited to any governmental restriction, suspension of trading, failure of electronic or mechanical equipment or communication lines, telephone or other interconnection problems, incompatibility of computer hardware or software, failure or unavailability of Internet access, problems with Internet service providers or other equipment or services relating to the customer’s or SG’s computer system, power failure, problem with data transmission facilities, unauthorized access, theft, fire, war, strikes, civil disorder, acts or threatened acts of terrorism, natural disasters or labour disputes.
2.14
Customer agrees that SG shall not be responsible for any damage to customer’s computer, software, modem, telephone or other property resulting from his use of the Electronic Trading Services.
2.15
SG shall not be liable for any transmission error or execution delays in providing Electronic Trading Services to the customer save where such is due to its gross negligence or willful default.
2.16
Customer agrees to indemnify and hold SG, its officers, employees, agents, Information Providers and Information Transmitters harmless from and against any and all claims, losses, liability, costs and expenses arising out of or in connection with customer’s use of the Electronic Trading Services. This obligation will survive until the termination of this agreement.
2.17 Unless otherwise specified, this Article 2 shall be without prejudice and in addition to all the other provisions in this agreement.

3. Representations, Warranties and Undertakings

3.1 Customer hereby represents and warrants to and undertakes with SG on a continuing basis as follows:-

  1. where customer is an individual, that he/she has attained the age of majority and that he/she is legally capable of validly entering into this agreement, of sound mind, legally competent and not a bankrupt, and fully understands the terms of this agreement; or
  2. where customer is a corporation, that it is a corporation duly organized and is validly existing under the laws of the country of its incorporation, and that this agreement and the opening of any account with SG has been validly authorized by all corporate actions required, and when executed and delivered this agreement will constitute valid and binding obligations of customer in accordance with the terms herein.

4. Event of Default

4.1 Any of the following shall each constitute an “Event of Default”:-

  1. in respect of any transaction, customer shall fail:-
    1. to pay any purchase price or other payments under this agreement when due;
    2. to provide the required margin when called upon to do so (as the case may be); or
    3. to make or take delivery of the Investment or commodity when required under the relevant contract (as the case may be);
  2. the filing of a petition in bankruptcy or winding-up or the commencement of other analogous proceedings against customer; or the appointment of a receiver, in respect of customer;
  3. the levying of attachment against any of the accounts of customer;
  4. customer’s default in the due performance or observance of any terms of this agreement and the observance of any bylaws, rules and regulations of the relevant exchanges and/or clearing houses;
  5. the death, insanity, bankruptcy or insolvency of customer;
  6. any consent, authorization or board or shareholders’ resolution required of customer to enter into this agreement being wholly or partly revoked, suspended, terminated or ceasing to remain in full force and effect;
  7. any representation or warranty made in or in pursuance of this agreement or in any certificate statement or other documents delivered shall be or become incorrect in any aspect;
  8. the continued performance of any of the transactions or this agreement becoming illegal or is claimed by any government authority to be illegal; or
  9. with respect to customer’s dealing or relationship with SG, SG forms the view in good faith that action is necessary to protect, enforce or preserve its rights hereunder.
4.2
Without prejudice to any other right or remedy which SG may have, if any Event of Default shall occur, SG shall be authorized
(but is not obliged), in its absolute discretion and in accordance with any applicable laws and regulations, to take one or more
of the following actions:
  1. cancel any or all outstanding orders or any other commitments made on behalf of customer under any or all of its accounts;
  2. liquidate or cover all positions in any or all of the accounts by any means;
  3. sell, dispose of or otherwise deal with in whatever manner any Investment, monies, securities, commodity or other property held for or on behalf of customer under any or all of the accounts he maintains with SG and to apply the proceeds thereof and any monies to offset and discharge any of the obligations or liabilities owed to SG;
  4. charge default interest as determined by SG from time to time;
  5. close any or all of the accounts; and/or
  6. terminate this agreement forthwith.
4.3 In the event of any sale pursuant to this Article 4:-

  1. SG shall not be responsible for any loss occasioned thereby howsoever arising if it has already used reasonable endeavours to sell or dispose of the Investments, securities, commodity or other property or any part thereof at the then available market price; and
  2. customer undertakes to pay to SG any deficiency if the net proceeds of sale shall be insufficient to cover all the outstanding balances owing by him to SG.
4.4 Any proceeds of sale hereunder shall be applied in the following order of priority for:-

  1. payment of all costs, charges, fees and expenses (including without limitation legal fees, stamp duty, commission and brokerage) incurred by SG;
  2. payment of all interest due; and (c) payment of all monies and liabilities due, owing or incurred by customer to SG; and any remaining sum shall be paid to customer.
4.5
Any distribution, refund, compensation, dividends, interest or other payments which may be received or receivable by SG in respect of the Investments held under the relevant account or accounts may be applied by SG as if they were proceeds of sale notwithstanding that the power of sale may not have arisen

5. Amendment

5.1
SG may from time to time amend or supplement (whether by the addition of schedules to this agreement or otherwise) any of the terms and conditions of this agreement by notifying customer in accordance with this agreement. If customer does not accept the same, customer may terminate this agreement within fourteen (14) days of the date of the notice. If customer does not terminate this agreement within such time or if it continues to enter into transactions through SG under this agreement after receipt or deemed receipt of notice of the amendment or supplement, customer will be deemed to have accepted such amendment or supplement and will continue to be bound by this agreement as so amended or supplemented. Customer undertakes to SG that (i) he/she shall review all statements and correspondence sent or otherwise supplied from time to time by SG to customer, and (ii) notify SG in writing that if any of customer’s contact details contained in this agreement is changed and forthwith supply the new contact details to SG in writing without delay.

6. General Provisions

6.1 Time shall be of the essence in respect of all matters in connection with or arising out of this agreement.
6.2
Customer acknowledges and confirms that customer has read of and agreed to the terms of the Risk Disclosure Statements appended hereto and which shall form part of this agreement. Customer further acknowledges that customer accepts full responsibility for the consequences of all orders executed by SG for and on customer’s behalf the purchase or sale of Investments and that in no circumstances will the customer hold SG liable for any loss or damage suffered or incurred thereby. Customer further confirms that in any event where SG has failed to execute customer’s orders or instructions expeditiously or at all,
customer will not hold GSG liable for any loss or damage resulting therefrom.
6.3
SG is not liable for any failure or delay to meet its obligations due to any causes beyond its control which shall include fires, storms, acts of God, riots, strikes, lock-outs, wars, governmental control, restriction or sanction whether local or international, technical failure of any equipment, power failure, black-outs or any other cause which results or is likely to result in the erratic behaviour of the investment prices, the closure of international and local Exchange or Market or any other causes affecting the operation of SG.
6.4
Any leniency or indulgence to customer, or failure by SG to avail SG of any provision hereof, shall not constitute a waiveR by SG of any right hereunder
6.5
In this agreement, the singular includes the plural, words importing one gender include the other gender and the neuter, and references to persons include bodies corporate or unincorporate, in each case vice versa.
6.6 This agreement may be translated into any other language but in the event of any conflict arising, the English version shall prevail.

7. Governing Law

7.1
This agreement shall be governed by, construed and enforced in accordance with the Laws of Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
7.2
At the sole option of SG and in its absolute discretion, any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at the date any such arbitration commences and as may be amended by the rest of this clause. The appointing authority shall be Hong Kong International Arbitration Centre (“HKIAC”). The place of arbitration shall be in Hong Kong at HKIAC. There shall be only one arbitrator. Any such arbitration shall be administered by HKIAC in accordance with HKIAC Procedures for Arbitration in force at the date any such arbitration commences. The language to be used in the arbitral proceedings shall be English.

8. Declaration and Signature

8.1 Customer hereby declares that:-

  1. customer is trading on customer’s own account; and
  2. customer has read and understood the contents of this agreement and accepts all the terms and conditions set out herein and agrees to be bound by them.