(1) The Client is desirous of opening and maintaining one or more accounts with the Dealer as the Client may decide from time to time for receiving services provided by the Dealer in accordance with the terms and conditions as set out in this agreement.
(2) The Dealer agrees that it will from time to time at the request of the Client and at the Dealer's sole discretion allow the Client to open one or more accounts with the Dealer for trading in precious metals which include but not limited to Loco London Gold and Loco London Silver (hereinafter called “Investment”) and accept and maintain such account or accounts to be designated by name, number or otherwise, for the provision of services on the terms and conditions as set out in this agreement.
NOW IT IS HEREBY AGREED as follows:
Terms and Conditions
“Access Code” means the login name(s), password(s) and/or personal identifier(s) to be used by the Dealer to identify and verify the identity of the Client when accessing the ETS system or placing Investment orders with the Dealer by telephone respectively.
“Additional Margin” means the additional margin funds that may be called upon by the Dealer to be deposited by the Client within the prescribed time in order to maintain the Client’s position if the market moves against the Client’s position and incurs a floating loss.
“Authorized Representative” means the representative(s) duly authorized and appointed by the Client pursuant to an agreement of appointment / acceptance of authorized representative (the “Agreement of Appointment / Acceptance of Authorized Representative”) executed by the Client simultaneously upon execution of this Agreement. The Client shall complete and sign the Agreement of Appointment / Acceptance of Authorized Representative appendixed hereto this Agreement. Upon receipt of the Dealer’s confirmation, the Client and his Authorized Representative can jointly manage the Client’s accounts.
“Bullion” means precious metals including but not limited to Hong Kong and/or Loco London Bullion.
“Bullion Trading” means the purchase and sale of Bullion pursuant to the terms and conditions of a Bullion Contract to be carried out on a deposit basis which does not involve any physical delivery of Bullion.
“Business Day”means any day, except Saturday, Sunday and the statutory holidays being published in the Gazette.
“Client” is applicable to any circumstances, and in the case where the client(s) is individual(s), shall include his respective executor(s) and administrator(s); in the case where the client is sole proprietorship firm, shall include the sole proprietor and his executor(s) and administrator(s) and his or their successor(s) in the business; in the case of partnership firm, shall include the partners who are partners of the firm at the time when the client’s said account or accounts are being maintained and their respective executor(s) and administrator(s) and any other person or persons who shall at any time hereafter be or have been a partner of and in the firm of his/their respective executor(s) and administrator(s) and the successor(s) to such partnership business.
“Client Telephone Code” Means the Client account number(s), password(s) and/or personal identifier(s) to be used by the Dealer to identify and verify the identity of the Client when placing Investment orders with the Dealer’s dealing room by telephone only.
“Contract” means a contract as to be agreed by the Parties (whether orally or in writing or electronically) regarding sale and purchase of Bullion pursuant to and subject to the conditions of this Agreement.
“Dealer” means Cocus Financial Group Company Limited and its successors in title and partners who acts as a principal in Bullion Trading with the Client or the Authorized Representative.
“ETS” means Electronic Trading Services, which is the electronic facility enabling the Client to give instructions to, and obtain information and services from the Dealer in relation to Investments, including but not limited to the Dealer ’s e-trading system and the Dealer’s website.
“Initial Margin” means a deposit as prescribed by the Dealer at the Dealer’s sole discretion in respect of Client’s Bullion Trading. The Client shall place such deposit with the Dealer as collateral before giving any Investment order. The Dealer may change the Initial Margin from time to time at the Dealer’s absolute discretion and any such change shall be effective forthwith without giving the Client any prior notice.
“Notices” means any form of communication transmitted by the Dealer to the Client by any means as prescribed by the Dealer from time to time, including the Client’s account status, the account transactions, and written notices concerning the amendment of the account opening regulations and information.
“Trading Day” means any day on which the global markets (in so far as Loco London Bullion is concerned) or the Chinese Gold and Silver Exchange Society (in so far as Hong Kong Bullion is concerned) are open for business.
1. Instructions and Dealing Practices
1.1 The Client shall give clear and unambiguous instructions to the Dealer. Such instructions shall be in accordance with the regulations that may be prescribed by the Dealer from time to time or the regulations of the Chinese Gold and Silver Exchange Society or the London Bullion Market Association or other relevant markets. The Dealer is hereby requested and authorized by the Client to act as broker or as agent or as principal to execute the Client's Investment order(s) constituting Bullion Contract in accordance with the terms and conditions of this agreement. For the avoidance of doubt, the Client hereby expressly agrees and confirms the Dealer by itself or its authorized representatives or staff whether acting in its capacity as the principal or agents for any parties shall have the absolute discretion to take opposite position to match any open position of the Client without any notification to Client or his Authorized Representative(s).
1.2 The Dealer shall be entitled to rely on any Investment orders which the Dealer reasonably believes in good faith to be from a person authorized by the Client to act on the Client’s behalf and the Client shall be bound by such communication. The Client agrees to indemnify the Dealer against any loss, costs and/or expenses (including legal costs) suffered or incurred by the Dealer in reliance thereof. The Investment orders may be given orally (whether by telephone or physical meeting) or in writing (whether by telex or fax) or in such other form as the Client and the Dealer may agree and all communications and correspondences must quote the Access Code and Client’s account number. Once an Investment order is given, it may not be rescinded or withdrawn without the written consent or confirmation of the Dealer. All orders given by the Client will be in clear and unambiguous terms.
1.3 The Client understands and acknowledges that the Access Code is strictly confidential and is required as a means to verify his identity before execution of any Investment orders and/or giving any instructions. The Client further acknowledges that the Dealer, its employees or any agents acting on behalf of the Dealer shall be entitled to refuse executing or handling any Investment orders placed by the Client or his Authorized Representative if the Client or his Authorized Representative cannot quote the Access Code correctly or the Dealer has a reasonable doubt or suspicion that the person quoting the Access Code whether verbally or electronically is neither the Client nor the Authorized Representative himself. The Client is under a duty to keep the Access Code confidential and shall be responsible for all Bullion Contracts made, losses, costs and expenses in the event the Access Code is disclosed to any third parties (“Unauthorized Persons”) (including the employees and/or agents of the Dealer if not acting in their course of employment, the investment advisors or any third parties) by the Client or his Authorized Representative whether deliberately or unintentionally or mistakenly and the Dealer shall bear no responsibility for any loss or damage whatsoever incurred should any transaction or Investment Order or Bullion Contract be accepted and concluded by the Dealer on reliance of the Unauthorized Persons who correctly provide the Access Code or Client Telephone Code and account number of the Client or his Authorized Representative to the Dealer whether verbally or electronically or by any other means or communication.
The Client also understands and acknowledges that the Client Telephone Code is different from the Access Code, and is required as a means to verify his identity before execution of any Investment orders and/or giving any instructions through telephone communication with the Dealer ’s dealing room. The Client further acknowledges that the Dealer, any agents acting on behalf of the Dealer shall be entitled to refuse executing or handling any Investment orders placed by the Client or his Authorized Representative if the Client or his Authorized Representative cannot quote the Client Telephone Code correctly or the Dealer has a reasonable doubt or suspicion that the person quoting the Client Telephone Code whether verbally or electronically is neither the Client nor the Authorized Representative himself. The Client is under a duty to keep the Client Telephone Code confidential and shall be responsible for all Bullion Contracts made, losses, costs and expenses in the event the Client Telephone Code is disclosed to any third parties (“Unauthorized Persons”) (including agents of the Dealer if not acting in their course of employment, the investment advisors or any third parties) by the Client or his Authorized Representative whether deliberately or unintentionally or mistakenly and the Dealer shall bear no responsibility for any loss or damage whatsoever incurred should any transaction or Investment Order or Bullion Contract be accepted and concluded by the Dealer on reliance of the Unauthorized Persons who correctly provide the Client Telephone Code and account number of the Client or his Authorized Representative to the Dealer whether verbally or electronically or by any other means or communication.
1.4 The Dealer is entitled to electronically record all telephone conversations and/or verbally made Bullion Contracts between the Client and the Dealer or any of the Dealer'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 to verify instructions from the Client and such recording shall remain the sole property of the Dealer. The Client agrees to accept the contents of any such recording as final and conclusive evidence of instructions and/or verbally made Bullion Contracts of the Client in case of dispute. The Client acknowledges that the Dealer shall not be obliged to retain the said electronic recordings and transcripts permanently and the Dealer shall in its sole discretion determine the period of retention of such electronic recordings and transcripts. In the event that the Dealer loses or no longer possess such electronic recordings and/or transcripts for reasons of force majeure or resulting from a cause over which the Dealer does not have control, including but not limited to theft, fire, natural disasters, failure of electronic or mechanical equipment, the Dealer shall not bear any responsibility towards the Client for any loss or expense resulting from execution of the Bullion Contract. Should the Client have any objection or queries in relation to any Bullion Contracts made by the Client and/or his authorized representative as per the transaction invo ices and statements to be supplied by the Dealer after execution of such Bullion Contracts, the Client and/or his Authorized Representative shall raise any objection, queries within five (5) Business Days failing which the Client will be deemed to have fully accepted accuracy of the trading information as contained in such invoices and statements from the Dealer.
交易商有权在有或没有使用自动声音警告装置的情况下用电子仪器纪录客户与交易商或其代理的电话谈话及/或以口述形式协定的贵金属合约，而此纪录及誊本可用作任何用途，包括核证客户之指令。此纪录的产权绝对归交易商独有。客户同意，倘若出现纠纷，将接受任何此等录音内容，作为证实客户发出指令及 /或以口述形式协定的贵金属合约之最终及不可推翻之证据。客户同时承认交易商无责任长期保留该纪录及誊本，而交易商有绝对酌情权釐定该纪录及誊本的保留期限。倘若发生任何不可抗力事件或非交易商所能控制的情况，包括但不限于盗窃、火灾、天灾、设备之技术性失灵等而导致交易商遗失或不再管有该纪录及 /或誊本，交易商概不就客户的贵金属合约所涉及的任何损失或支出负上任何责任或义务。倘若客户按交易商向客户或其授权代表提供的成交单据及结单，对其或其授权代表所订立的贵金属合约存任何疑问，客户必须于五个工作日内提出有关反对或疑问，否则客户将被视为已完全认同及接纳由交易商载于该单据及结单中的交易资料的真确性。
1.5 The Client accepts all rules, trading facts and timetable(s) for placing Investment orders as prescribed by the Dealer from time to time.
1.6 The Client acknowledges and agrees that the Client shall take full responsibility for all Investment in the Client’s account(s) and the Dealer is only responsible for carrying out the Client’s Investment orders. The Dealer shall have no responsibility or obligation for any conduct, action, representation or statement of any investment advisor or third party in connection with the Investment. The Client further acknowledges that any trading recommendations and market or other information communicated to the Client by the Dealer ’s employees and/or its agents or investment advisors do not constitute any advice on which the Client is meant to rely with respect to any Investment. The Client shall make its own judgment and decision with respect to any Investment order. The Client shall not hold any person liable for any trading loss or loss in any other respects that may be incurred by the Client in reliance on and/or acceptance of the investment opinions, recommendations, analysis or other information given by such person as requested by the Client.
客户确认并同意，客户须对帐户内所有交易决定负上全责，而交易商只负责执行帐户内交易；至于交易商的任何职员及/或其他代理、投资顾问或其他第三者对帐户或 帐户内任何交易之任何行为、作为、陈述或声明，交易商概不负上任何责任或义务。客户亦确认交易商的任何职员及/或其代理人或投资顾问所给予客户的任何买卖推荐及市场或其他资料，并不构成客户赖以作出交易决定的建议。交易商毋须为该等推荐及资料负上任何责任。客户须就任何交易指令自行作出判断及 定。客户不能就信赖及听取投资、分析建议从而造成交易或任何方面的损失，要求提供意见、建议、分析及资讯者负责。
1.7 The Dealer reserves the right to refuse execution of any Investment orders on the Dealer’s own account and shall not be obliged to give any reason for such refusal. The Dealer is also authorized at its election and without notice to the Client to cancel any Investment order(s) given to the Dealer by the Client, at any time prior to their execution. The Dealer shall take reasonable steps to notify the Client and shall not be liable for any loss incurred to the Client as a result. The Client will take full obligation and responsibility for any sort of consequence whatsoever that may result from the execution of the Client's order(s).
1.8 The Client and/or his Authorized Representative may not commence giving Investment orders to the Dealer until the Dealer shall have confirmed completion of the Bullion Trading Account opening procedure by sending a specific Access Code and the account opening confirmation letter to the Client.
1.9 The Client may use the following trading means to operate his account(s) maintained with the Dealer and the Client accepts and adopts such non-exhaustive trading means upon the opening of his account(s). The Client may place Investment orders directly with the Dealer through telephone or by ETS or any other means as accepted by the Dealer. The Authorized Representative may also give Investment orders to the Dealer through the means as accepted by the Dealer. The Client may give instructions to the Dealer ’s agent(s) or give instructions after accepting the opinions or recommendations of the Dealer ’s agent(s), and the Dealer’s agent(s) shall carry out such instructions through the means as accepted by the Dealer.
2. Electronic Trading Services
2.1 Upon the Client's request, the Dealer may provide the Client with ETS. The Client acknowledges that the Client shall use the ETS at its own risk and the usage of the ETS is subject to the terms and conditions to be specified by the Dealer from time to time and any applicable laws and regulations.
2.2 When using the ETS, the Client hereby warrants that he is the only authorized user of the Access Codes and the Client shall be fully responsible for all instructions placed with the use, application and security of the Access Codes (whether authorized by the Client or not). The Dealer shall not be responsible for loss incurred as a result of carrying out such Investment orders. The Client shall, upon demand, indemnify the Dealer against any loss or damage as a result of any Investment orders made through the ETS.
2.3 The Client acknowledges that the ETS belongs to the Dealer. The Client shall not attempt to tamper with, decompile, modify, dissemble, reverse engineer damage, destroy or otherwise alter in any way, or attempt to gain unauthorized access to the ETS.
2.4 The Dealer shall not be deemed to have received the Client's instructions or executed its Investment order(s) unless and until the Dealer's message acknowledging receipt or confirming execution of the Client's order(s) is duly and clearly received by the Client. In circumstances including but not limited to the case where there is any computer system failure, ETS system error, or inaccurate pricing (in cases where the pricing does not represent the true and accurate pricing quoted in the international Bullion market, the Client shall accept the pricing as determined by the Dealer in its professional capacity and in good faith as the conclusive accurate pricing) resulting in the issuance of an incorrect confirmation by the Dealer, the Dealer has the absolute right to make any necessary amendment or even cancel such confirmation unilaterally and the Client shall fully accept any such amendment by the Dealer and shall be responsible for any consequences arising herein.
2.5 The Client acknowledges that the giving of an Investment order through the ETS does not guarantee execution of an order by the Dealer. The Dealer, its employees or agents shall not be held liable for failure to execute any Investment order.
2.6 The Dealer may refuse to accept or carry out any Investment orders without being obliged to give any reason for such refusal. The Dealer may refuse to accept or carry out any Investment orders for any reason whatsoeve r, which may include but is not limited to failure to maintain or deposit the Initial Margin required by the Dealer.
2.7 The Client agrees to pay all subscription, service and usage fees, if any, that the Dealer may charge it for use of the ETS and agrees that the Dealer may change such fees without giving the Client any prior notice.
2.8 The Client shall be responsible for the accuracy of the Investment orders placed on the ETS and the Dealer shall be entitled to rely and act on such Investment orders. The Client hereby agree to carefully review every Investment order before it is made and acknowledge that once an Investment order is given through the ETS, it may not be rescinded or withdrawn without the express consent or confirmation of the Dealer, which shall not be obliged to accept such a request. The Client acknowledges that Investment orders may only be cancelled or amended before execution and in the case of full or partial execution of the Investment order, the Client shall be fully or partially responsible, as the case may be, for the execution of the Investment Order and the Client shall not hold the Dealer liable for such execution.
2.9 The Client is fully aware that financial data or other information published by third parties may be provided in the ETS and such data may not be the latest real-time market quotes. The Client acknowledges that the Dealer has no basis to independently verify the accuracy of such data and shall in no way treat such data provided in the ETS as a warranty, recommendation or endorsement from the Dealer in respect of any Investments. The Dealer shall not be held liable for any losses incurred by the Client in reliance of such data or from system failure of the ETS re sulting in the data being incorrect.
2.10 The Client agrees that he shall not use the financial data or other information published on the ETS for use in his course of ordinary business, or make available, reproduce, publish or circulate such financial data or other information without the prior written consent of the Dealer.
2.11 The Client hereby acknowledges that any information provided in the ETS is provided on an "as is", or "as available" basis and reliance on such information is at the Client’s own risk. The Dealer does not confirm, warrant or guarantee the timeliness, sequence, accuracy adequacy, continuity 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.
2.12 The Client acknowledges and agrees to immediately notify the Dealer if:
(a) an instruction has been placed through the ETS and the Client has not received an order number or has not received an accurate acknowledgement of the instruction or of its execution (whether by hard copy, electronic or verbal means);
(b) the Client has received acknowledgment (whether by hard copy, electronic or verbal means) of a transaction which the Client did not instruct or becomes aware of any similar conflict;
(c) the Client becomes aware of any of the acts stated in Article 2.3 being done or attempted by any person;
(d) the Client becomes aware of any unauthorized use of the Client's Access Code; or
(e) the Client has difficulties with regard to the use of the ETS.
2.13 The Client expressly agrees that the Dealer may communicate with or give notice to the Client via the ETS or by any other electronic means or facilities and that any such notice or communication shall be deemed to have been received at the time of transmission of the message to the Client.
2.14 The Client acknowledges that:
(a) access to the ETS may be limited or unavailable at certain periods of time, market volatility, systems upgrade or maintenance or for any other reasons and the Client shall not hold the Dealer liable in cases where any such circumstances arise;
(b) ETS may not be a completely reliable means of communication; and
(c) the Investment orders may not be executed immediately after it is placed and may not be executed at the price when the Investment orders were made. In all such circumstances, the Client shall accept the price being reviewed by the Dealer as the ultimate accurate price.
2.15 It may be necessary for the Dealer to suspend some or all of the ETS for routine or eme rgency maintenance. In the event of such suspension, the Dealer shall take reasonable steps to notify the Client prior to the suspension. The Client also acknowledges that the Dealer may at any time in its sole discretion and without prior notice to the Client, suspend, prohibit, restrict or terminate the Client’s access to the ETS and his ability to place Investment orders, which will not affect the rights and/or obligations of either party incurred prior to the time of such suspension, prohibition, restriction or termination of access or closing of the electronic account.
2.16 The Dealer shall not be liable to the Client for any losses, expenses whatsoever in relation to any private or confidential information being accessed or destroyed by hackers or any incorrect messages or Notices being issued to the Client resulting from any unauthorized invasion or destruction of the computer systems of the Client and/or the Dealer by hackers.
2.17 The Client agrees that he will not hold the Dealer, its employees nor any third parties liable for any loss or damage:
(a) 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 ETS resulting from the act or omission of any third parties even if the Dealer, its employees and any third parties had been advised of the possibility of any loss or damage; or
(b) resulting from a cause over which the Dealer, its employees nor any third parties 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 Client's or the Dealer's computer system, power failure, black-outs, problem with data transmission facilities, unauthorized access, theft, fire, storms, riots, war, strikes, civil disorder, acts or threatened acts of terrorism, natural disasters or labour disputes.
2.18 The Client agrees that the Dealer shall not be responsible for any damage to the Client’s computer, software, modem, telephone or other property resulting from his use of the ETS.
2.19 The Dealer shall not be liable for any transmission error or execution delays of the Investment orders placed on the ETS due to breakdown, failure of transmission, failure of communication facilities or any other circumstances beyond the Dealer’s control or anticipation.
2.20 The Client agrees to indemnify and hold the Dealer, its employees nor any third parties harmless from and against any and all claims, losses, liability, costs and expenses arising out of or in connection with the Client’s use of the ETS. This obligation shall remain in full force and effect and shall be enforceable notwithstanding termination of this agreement.
2.21 The Client may terminate his ETS account upon receipt by the Dealer of a written notice in the form being acceptable by the Dealer of its termination seven (7) Business Days prior to the effective date of the termination.
2.22 Unless otherwise specified, this Article 2 shall be without prejudice and in addition to all the other provisions in this agreement.
3. Margin and Settlement
3.1 Unless otherwise agreed by the Dealer or stated in the Bullion Contract, all transactions to be made / Investment orders to be executed shall be in the currency of U.S. dollars. In the event that the Client deposits H.K. dollars or Euro in the Client’s account, such deposits shall be converted into U.S. dollars at the exchange rate of the Hong Kong and Shanghai Banking Corporation at the time when the Client deposits money in the Client’s account or when the transaction is made / Investment orders is executed. The Client acknowledges that all references to the price of Bullion in the Bullion Contract and all and any statements or communication the Client may receive from the Dealer in relation to the funds in the Client’s account shall be stated in U.S. dollars.
3.2 The Client shall deposit and will at all times maintain, without any call or notice by the Dealer, the Initial Margin required by the Dealer, and upon call from the Dealer (by means including but not limited to email, fax, telephone or other means mutually agreed by both parties), the Client will deposit with the Dealer on or before the time and date prescribed by the Dealer and/or maintain forthwith Additional Margins and/or other funds which the Dealer may at its absolute discretion deem necessary for the Dealer's protection. The Client fully understands that the Initial Margin can be changed from time to time at the Dealer's absolute discretion without giving the Client any prior notice.
3.3 Upon failure for any reason to deposit and/or maintain such margins and/or other funds, or the Client request to terminate this agreement pursuant to Article 2.21, or in the event the Dealer terminates this agreement as hereinafter provided, the Client will confer upon the Dealer the right, at the Dealer’s election and without any call or notice and at the Client’s risk, to close out the whole or part of such transaction(s) which may be left unliquidated, or to take any action(s), at the Dealer’s discretion at any market price at any time and order the Dealer thinks fit. The Client will be liable for any loss or deficiency resulting there from. The enforcement of any right hereunder shall not operate as any waiver, release or discharge of any deficit or net debit balance which may occur in the Client's account(s) with the Dealer.
3.4 The Client shall be liable to the Dealer for any deficit resulting from losses and any costs and expenses incurred by the Dealer, on a fully indemnity basis, relating to any action taken under Article 3.3, which shall be immediately due and payable failing which interest shall be charged with interest pursuant to Article 5.
3.5 Upon the request by the Client, the Dealer has the power to approve and provide credit facility to the Client at the Dealer ’s sole discretion. The Dealer also has the absolute discretion to determine the credit limit and settlement cap of the Client’s margin facility from time to time without giving the Client any prior notice. The Dealer and the Client may enter into other margin facility letters setting out details of the margin facility.
3.6 The Client will observe and accept all rules, margin deposit requirements, trading facts, time table(s) for placing Investment order(s), taking delivery and/or other matters for and related to Investments as prescribed by the Dealer from time to time.
3.7 The Dealer is specifically authorized by the Client to transfer such necessary amount from the Client’s trading margin or any other trading account(s) belonging to the Client which has profit, without any call, or notice by either party, to the Dealer as trading margin/funds to cover trading loss relating to the Client’s Investments and to transfer any trading profits from the Dealer to the Client’s account without any call or notice by either party.
3.8 The Client is advised to deposit any funds/margin deposit directly to the Dealer during normal office hours and collect a receipt/margin receipt simultaneously. The Client shall not hold the Dealer responsible for any losses and/or deficiency of all funds including but not limited to deposits and trading margin paid by the Client to the Dealer through the Client’s representative or any of the Dealer’s staff member until and unless the funds are actually collected by the Dealer from the Client’s representative or any of the Dealer ’s staff member and a receipt/margin receipt bearing the authorized signature(s) of the Dealer thereof is issued to the Client.
3.9 All receipt/margin receipt issued to the Client must bear the authorized signature(s) of the Dealer and such margin deposit is subject to transfer under Article 3.7. Such receipt shall only serve as acknowledgement of the margin deposit, and shall serve no other purpose.
3.10 Any and all Investments, now or thereafter to be held or carried by the Dealer for the Client are to be held by the Dealer as security for the payment of any liability of the Client to Dealer.
3.11 In addition and without prejudice to any general liens or other similar rights which the Dealer may be entitled under law or this agreement, the Dealer may, at any time without notice to the Client, combine or consolidate the accounts held by the Client and the Dealer may set off or transfer any monies, Investments or other property in any of his accounts to satisfy obligations or liabilities due to the Dealer, whether such obligations and liabilities are actual or contingent, primary or collateral, secured or unsecured, or joint or several.
3.12 The Client may make withdrawals from his margin account(s) by giving the Dealer at least three (3) Trading Days notice in writing of his intention to withdraw. The amount to be withdrawn by the Client must not exceed the credit balance in that particular account after deducting the necessary margin and gross floating loss to be calculated by the Dealer in his sole discretion on the date when actual payment shall be made to the Client. For the avoidance of doubt, Client expressly agrees and acknowledges that in the event the remaining balance of money held at Client’s account as at the actual payment date shall be less than the amount as set out in Client’s withdrawal notice, the Dealer shall be entitled to pay the lesser sum to Client notwithstanding what has been recorded in the withdrawal notice.
3.13 The Client may appoint a person(s) to operate his account(s) opened and maintained with the Dealer by completing and signing the Agreement of Appointment/Acceptance of Authorized Representative appendixes hereto this Agreement and upon the confirmation of the Dealer, the Client and his authorized representative may operate the Dealer’s account(s) jointly.
The Dealer shall not be held responsible for any loss, cost and expenses (including any legal costs) resulting from any private trading transactions, contracts or any other relationships between the Client and the Dealer ’s officer, employees or agents. Furthermore, the Dealer shall not be held responsible for any agreement or verbal guarantee regarding any profit guarantee or preservation of capital and interests being given by any person to the Client.
4. Commission and Expenses
4.1 The Client will pay the commission and/or any other expenses including but not limited to stamp duty, bank charges, transfer fees, any loss in the exchange rate pursuant to Article 3.1 and interest incurred for the trading, as prescribed by the Dealer, immediately after execution of each transaction and the Dealer is hereby authorized to deduct such commission/expenses from the margin deposit in the Client’s account(s) with the Dealer. In case the margin deposit in the Client’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 the Client’s account(s) which will be subject to the conditions stipulated in Articles 5.1 and/or 5.2.
5. Interest and Tax
5.1 Net debt balances in the Client's account(s) will be charged interest at such rate(s), not exceeding the Prime Rate of banks in Hong Kong plus 3% p.a., as demanded by the Dealer. The Client shall be charged with such charges as the Dealer deems necessary to cover the Dealer’s facilities and extra services.
5.2 All funds paid to the Dealer whether as deposit or trading margin or any other purpose whatsoever shall not earn any interest from the Dealer.
5.3 The Client acknowledge and agree that he shall bear all tax liability as may be incurred in connection with or from execution of the Investment and/or Bullion Contracts and/or arising from the Client’s country of origin. The Client agrees to fully indemnify the Dealer for any costs and expenses incurred as a result of such tax liabilit y.
6. Event of Default
6.1 For the purpose of this agreement, any of the following shall each constitute an "Event of Default":
(a) any delay or default by the Client;
(b) in respect of any transaction, the Client shall fail:
(i) to pay any purchase price or other payments under this agreement when due;
(ii) to provide the required margin when called upon to do so or other sums payable to the Dealer; or
(iii) to make or take delivery of the Investment or commodity when required under the relevant contract;
(c) the Client stops payment, or becomes unable to pay, any of its debts, or ceases or threatens to cease to carry on its business or disposes or threatens to dispose its assets;
(d) the filing of a petition in bankruptcy or winding-up or the commencement of other analogous proceedings against the Client; or the appointment of a receiver, in respect of the Client;
(e) the levying of attachment against any of the Client’s accounts;
(f) the Client’s default in the due performance or observance of any terms of this agreement and the observance of any by-laws, rules and regulations of the relevant Exchanges and/or Clearing Houses;
(g) the death, insanity, bankruptcy or insolvency of the Client;
(h) any consent, authorization or board or shareholders’ resolution required of the Client to enter into this agreement being wholly or partly revoked, suspended, terminated or ceasing to remain in full force and effect;
(i) 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 or misleading in any aspect;
(j) the continued performance of any of the transactions or this agreement becoming illegal or is claimed by any government authority to be illegal; or
(k) with respect to the Client's dealing or relationship with the Dealer, the Dealer forms the view in good faith that action is necessary to protect, enforce or preserve its rights hereunder.
6.2 Without prejudice to any other right or remedy which the Dealer may have, if any Event of Default shall occur, all amounts owing by the Client to the Dealer shall become immediately payable on demand, including any interest, at the rate as specified in Article 5.1 and the Dealer 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 without the need of any notice being given to the Client:
(a) cancel any or all outstanding orders or any other commitments made on behalf of the Client under any or all of its accounts;
(b) suspend the Dealer ’s obligations to perform pursuant to the terms and conditions of this agreement;
(c) liquidate or cover all positions in any or all of the accounts by any means;
(d) sell, dispose of or otherwise deal with in whatever manner any Investment, monies, securities, commodity or other property held for or on behalf of the Client under any or all of the accounts he maintains with the Dealer and to apply the proceeds thereof and any monies to offset and discharge any of the obligations or liabilities owed to the Dealer;
(e) charge default interest as determined by the Dealer from time to time;
(f) immediately close any or all of the accounts; and/or
(g) terminate this agreement forthwith without the consent of the Client.
6.3 In the event of any sale pursuant to this Article 6.1:
(a) the Dealer 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 or other properties or any part thereof at the then available market price; and
(b) the Dealer shall be entitled to appropriate from the net proceeds of sale all outstanding balances owing by the Client to the Dealer without being responsible for any loss to the Client rising from such sale;
(c) the Client undertakes to pay to the Dealer any deficiency if the net proceeds of sale shall be insufficient to cover all the outstanding balances owing by him to the Dealer.
6.4 Any proceeds of sale hereunder shall be applied in the following order of priority and any residue shall be paid to the Client’s account or his order:
(a) payment of all costs, charges, fees and expenses (including, without limitation, legal fees, stamp duty, commission and brokerage) incurred by the Dealer;
(b) payment of all interest due; and
(c) payment of all monies and liabilities due, owing or incurred by the Client to the Dealer.
6.5 Any distribution, refund, compensation, dividends, interest or other payments which may be received or receivable by the Dealer in respect of the Investments held under the relevant account or accounts may be applied by the Dealer as if they were proceeds of sale notwithstanding that the power of sale may not have arisen.
6.6 The Dealer shall not be liable to the Client in any way for any loss or damage arising from the exercise of any of its rights and remedies as set out in this agreement.
7. Representations and Warranties
7.1 The Client hereby represents and warrants to and undertakes with the Dealer on a continuing basis as follows:
(a) where the Client 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;
(b) where the Client is a corporation, that is a corporation duly incorporated and is validly existing under the laws of the country of its incorporation, and has the full power and capacity to enter into this agreement, and the opening of any account with the Dealer has been validly authorized by all corporate actions required in accordance with memorandum and articles of association or by-laws of the Client, and when executed and delivered this agreement will constitute valid and binding obligations of the Client enforceable in accordance with the terms herein;
(c) Client is entering into this agreement as principal and is not trading on behalf of any other person;
(d) Client will enter into Bullion Contracts solely in reliance upon Client’s own judgment, and not upon any advice or opinion by any employee or officer or agent of the Dealer;
(e) not to pledge or charge any of its monies or properties forming part of any account(s) opened with the Dealer without the prior written consent of the Dealer, or sell, or grant an option over, or otherwise deal in any properties or monies forming part of the account(s); and
(f) to promptly notify the Dealer in writing if any of the representation or warranties contained herein or information given to the Dealer pursuant to this agreement, ceases to be true and correct in any respect and to notify the Dealer of the occurrence of any Event of Default, as set out in Article 6, upon its occurrence.
8. Joint Clients
8.1 Where the Client consists of more than one person:
(a) each Client shall be a joint tenant in relation to the other Clients with a right of survivorship. For the avoidance of doubt, the joint account holders are not, in relation to each other, tenants in common;
(b) the liability and obligations of each of them shall be joint and several and references to the Client shall be construed, as the context requires, to any or each of them;
(c) the Dealer shall be entitled; but shall not be obliged, to act on instructions or requests from any of them;
(d) the Dealer shall be entitled to deal separately with any of the Client on any matter including the discharge of any liability to any extent without affecting the liability of any others;
(e) any Investment order or amendment to such Investment order made by one of the joint Client or their authorized representative shall be accepted and be binding on all and each of them; and
(f) any communication, including any notices, Bullion Contracts or statements in relation to the funds in the Client’s account sent by the Dealer to any of the joint Clients or authorized representative’s correspondence address, as provided by the Client in the information statement, shall be deemed to be duly received by all of them and to have deemed knowledge of the contents thereof;
(g) any Investment orders or any other instructions given by each Client or the authorized representative of each Client shall be deemed to be mutually accepted by each of the joint Client.
8.2 Where the Client consists of more than one person, on the death of any of such persons(being survived by any other such persons), this Agreement shall not be terminated and the interest in the account(s) of the deceased will thereupon vest in and ensure for the benefit of the survivor(s) provided that any liabilities incurred by the deceased Client shall be enforceable by the Dealer against such deceased Client’s estate The surviving Client(s) shall give the Dealer written notice immediately upon any of them becoming aware of any such death.
9. Liabilities and Indemnities
9.1 The Client hereby acknowledges and admits that the Client will take full obligation and responsibility for any sort of consequence whatsoever that may result from the Investment orders of the Client. The Client further acknowledges that any trading recommendations and market or other information communicated to the Client by the Dealer’s employees and/or its agents do not constitute any advice on which the Client is meant to rely with respect to any Investment order made by the Client, regardless of whether or not such recommendation and information are provided upon the request of the Client. The Dealer shall not be under any liability in respect of such recommendations and information. The Client shall make its own judgment and decision with respect to any Investment order.
9.2 The Dealer shall not be liable for any act, default, negligence, omission or neglect on the part of any broker or third party acting as agent as the Dealer may, at its sole discretion, contract or deal with in order to carry out the Client’s instructions.
9.3 The Dealer may affect transactions in Investments where the Dealer has a position in the Investments, and the Dealer shall not be obliged to account for any profits or benefits obtained.
9.4 The Client acknowledges and confirms that the Client has read and agreed to the terms of the Risk Disclosure Statements and Money Laundering Control Statements appendixed hereto and which shall form part of this agreement. The Client further acknowledges that the Client accepts full responsibility for the consequences of all orders executed by the Dealer for and on the Client’s behalf for the purchase or sale of Investments and that under no circumstances will the Client hold the Dealer liable for any loss or damage suffered or incurred thereby. The Client further confirms that in any event where the Dealer has failed to execute the Client’s orders or instructions expeditiously or at all, the Client will not hold the Dealer liable for any loss or damage resulting therefrom.
9.5 The Dealer 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 causes which results or is likely to result in the erratic behaviour of the Investment prices, the closure of international and local Exchanges or Clearing Houses or any other causes affecting the operation of the Dealer.
9.6 Any leniency or indulgence to the Client, or failure by the Dealer to avail the Dealer of any provision hereof, shall not constitute a waiver by the Dealer of any right hereunder nor shall such leniency or indulgence be treated as binding on the Dealer towards the Client thereafter nor does it imply that other clients will receive the same amount of leniency or indulgence.
10.1 This agreement shall be effective upon execution by the Dealer’s representative and continue in full force and effect until receipt by the Dealer from the Client of written notice of its termination seven (7) Business Days prior to the effective date of the termination or receipt by the Client from the Dealer of any written notice of its termination in either event and at the Dealer’s election, the Dealer may liquidate the Client’s account(s) as hereinabove provided or transfer the Client's account(s) to such broker or commission merchant as the Dealer shall designate.
10.2 Notwithstanding Article 10.1, the Client shall not be entitled to terminate its account(s) under this agreement if the Client has any outstanding debts, liabilities or obligations, including any failure to provide the required margin when called upon to do so.
10.3 The Dealer may close or terminate the Client’s account(s) maintained hereunder and/or terminate this agreement by giving three (3) Business Days notice in writing to the Client. Under the circumstances as set forth under this Article or Article 10.1, the obligations of the Dealer and the Client shall remain in full force and effect and shall be enforceable notwithstanding such termination.
可 分 割 性
11.1 Each of the provisions in this agreement is severable and distinct from the others and if any one or more of such provision is or becomes illegal, invalid or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
12.1 The Client may not assign, transfer, charge or otherwise dispose of any of the Client’s rights or obligations under this agreement without the prior written consent of the Dealer. The Client expressly agrees and acknowledges the Dealer may assign its rights or any part thereof and/or novate its obligations or any part thereof under this agreement to any person without the prior consent of the Client.
13.1 Time shall be of the essence in respect of all matters arising under this agreement.
13.2 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.
13.3 If there is any alteration in the Client’s registration with the Dealer, the Client shall notify the Dealer in writing and such alternation will only be processed upon actual service of such written notification. The Client understands that any such alteration could only become effective one (1) to (1) to three (3) Business Days after the Dealer is in receipt of the Client’s written notice to this effect and the Client will take full responsibility for any consequences caused by the Client's change of particulars in registration.
13.4 This Agreement may be translated into any other language but in the event of any conflict arising the English version shall prevail.
14.1 The Dealer 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 the Client in the manner as set out in this agreement. Any notice delivered by the Dealer to the Client by any means pursuant to Article 15.1 of this agreement shall be deemed to be effectively served to the Client. If the Client does not accept the same, the Client may terminate this agreement within seven (7) Business Days of the date of the notice. If the Client does not terminate this agreement within such time or if it continues to enter into transactions through the Dealer under this agreement after receipt or deemed receipt of notice of the amendment or supplement, the Client will be deemed to have fully accepted such amendment or supplement and will continue to be bound by this agreement as so amended or supplemented. The Client undertakes to the Dealer that (i) it shall review all statements and correspondences sent or otherwise supplied from time to time by the Dealer to the Client, and (ii) notify the Dealer in writing if any of the Client’s contact details contained in this agreement is changed and forthwith supply the new contact details to the Dealer in writing without delay.
15.1 Communication, including any notices, copy of Bullion Contracts or daily or monthly statements in relation to the funds in the Client’s account and/or Investment orders, transactions made, may be made to the Client at the address of the Client given herein or at such other address as the Client may hereafter give to the Dealer 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 Client when deposited in the mail, received by a transmitting agent, transmitted by the sending machine, telephoned, delivered personally to the Client's address, whether actually received or not. If the Client has any objection to the information, data, transaction record set out in any of the communication, the Client shall raise his objection, queries directly to the Dealer in writing within 7 Business Days from the date of deemed delivery, otherwise all such information, data and transaction records as contained in any means of communication from the Dealer will be deemed correct and the Client will be deemed to have fully accepted such information, data and transaction record.
15.2 All Notices, communications, account information and trading confirmation shall be deemed to be duly delivered to the Client:
(a) at the time of transmission, if transmitted by courier, telephone, fax and other electronic means; or
(b) two (2) Business Days after delivery, if transmitted by air mail; or
(c) seven (7) Business Days after delivery if transmitted by ordinary post.
The Client expressly agrees that any account information or Notices may be given by the Dealer to the Client by electronic means and the Client agrees to accept such Notices electronically. The Client further acknowledges that any account information or Notices may also be given by the Dealer by fax and such Notices shall be deemed to be duly received by the Client. The Client hereby authorizes the Dealer to treat the instructions given by the Client by fax as the original instructions given by the Client. If the Dealer incur any loss or suffer any damage or legal claim resulting from the execution of the instructions given by the Client by fax, the Client agrees to indemnify the Dealer for any such loss or damage and the Client hereby guarantees that the Client will not under any circumstances hold the Dealer liable for any loss or damage suffered or incurred thereby.
15.3 Any member or employee or authorized representative(s) of the Dealer is/are hereby expressly permitted to visit and discuss with the Client at the Client’s place of business or residence in reference to any account(s) of the Client with the Dealer.
16. Governing Law
16.1 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.
16.2 All transactions for the Client 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 the London Bullion Market Association, 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 the Dealer is dealing on the Client’s behalf or with the Client, each as amended from time to time. The Dealer shall not be liable to the Client as a result of action taken by the Dealer 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 the Client in respect of the transactions concluded on the instructions of the Client.
16.3 The Client acknowledges that the relevant laws, rules, regulations, by-laws, custom and usages as mentioned in Article 16.2 may require the disclosure of information by the Dealer relating to the Client or the Client’s account(s). The Client hereby irrevocably authorizes the Dealer, without further notice or consent of the Client, to disclose to the relevant authorities, Exchanges or Clearing Houses information relating to the Client or the Client’s account(s) and to provide all such documents in the Dealer’s possession as may be required, including without limitation, the name and ultimate beneficial owner and the financial position of the Client, as made known to the Dealer at the time. The Client agrees it will not hold the Dealer liable for any consequences arising out of the disclosure and to indemnify the Dealer against any costs or expenses suffered or incurred by the Dealer in complying with the request for disclosure.
客户确认，根据本协议第16.2条文指出的有关法例、规则、惯例及常规可能要求交易商披露与客户及 / 或客
17.1 At the sole option of the Dealer 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 from time to time. 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 which shall be chosen by the Dealer. 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. The award of the arbitration shall be final and binding on the parties.
The risk of loss in Bullion trading on margin can be substantial. You agree that you may sustain losses in excess of your initial margin funds. The placing of contingent orders such as “stop-loss” or "stop-limit" orders may not necessarily limit your losses to the intended amount. Certain market conditions may make it impossible to execute such orders. You agree that you may be called upon at short notice to deposit additional margin funds. If the required funds are not provided within the prescribed time, your position may be liquidated at a loss. You will remain liable for any resulting losses in your account. You should therefore carefully consider whether such trading is suitable in light of your own financial position and investment objectives.
Hedging means when the market goes against your expectation after taking a “long” position followed by a “short” position for the same value. You agree that this hedging operation will result in interest cost, which is caused by interest margin and normally is at the level of 3% of the annual interest rate in the market. You will have to pay additional commission for your hedging operation.
Money Laundering Control Statement
Pursuant to the my/our opening of a bullion trading account with Cocus Financial Group Company Limited, I/we have read, understood and executed this Client Statement (the “Statement”) concerning money laundering activities.
兹因本人 / 本人等于联富金融集团有限公司开立帐户，经阅读、瞭解并签署下列有关洗钱行为之声明。
Money laundering activities consist of drug-trafficking offenses and financial misconduct. Drug-trafficking offenses include the manufacture, importation, sale, or distribution of controlled substances; the commission of acts constituting a continuing criminal offense and transportation of drug paraphernalia.
Financial misconduct includes the concealment of assets from a receiver, custodian, trustee, marshal, or other officer of the court from creditors in a bankruptcy proceeding; the making of a fraudulent conveyance in contemplation of a bankruptcy proceeding with the intent to defeat any bankruptcy law; the giving of false oaths or claims in relation to a bankruptcy proceeding; bribery; the giving of commissions or gifts for the procurement of loans; theft, embezzlement, or misapplication of bank funds or funds of other lending, credit, or insurance institutions; the making fraudulent bank or credit institution entries or loan or credit application; and mail, wire, or bank fraud or bank or bank postal robbery or theft.
Other activities associated with money laundering also include counterfeiting, espionage, kidnapping or hostage taking, copyright infringement, entry of goods by means of false statements, smuggling, removing goods from the custody of customs officials, and illegally exporting arms.
I/We have read and understood the contents of this statement and hereby expressly confirm and represent to the Company that none of the assets, which I/we, or any corporation in which I am/we are either as beneficial owner or holding a controlling interest, has been derived from any of the aforementioned activities specified in this statement.
本人 / 本人等已经阅读并瞭解本洗钱防制备忘录之内容，谨确定声明本人 / 本人等之资产或任何由本人 / 本人等