ETERNAL PEARL SECURITIES LIMITED
CLIENT AGREEMENT AND SCHEDULES
Wanchai, Hong Kong
Tel电话: 3199 0888
Fax传真: 2851 6128
Website 网页: www.ep-sec.com
THIS IS AN IMPORTANT DOCUMENT. 此乃重要文件，恳请细阅。
PLEASE READ THE FOLLOWINGS CAREFULLY.
CLIENTS SHALL NOTE NOT ONLY THAT FLUCTUATIONS IN THE PRICES OF SECURITIES SHALL BE INEVITABLE AND UNAVOIDABLE, AND THAT SECURITIES PRICES MAY MOVE SHARPLY UNWARDS OR DROP DRASTICALLY DOWNWARDS WITHIN A SHORT SPAN OF TIME, BUT ALSO THAT UNDER CERTAIN CIRCUMSTANCES, SECURITIES MAY BE, OR SHALL HAVE TO BE, SUSPENDED FROM TRADING, DELISTED OR EVEN WORSE, BECOME VALUELESS FOR ONE REASON OR ANOTHER. AS SUCH, WHEN TRADING OR INVESTING IN SECURITIES, CLIENTS SHALL BE EXTREMELY CAUTIOUS AND PRUDENT. CLIENTS SHALL NOT TRADE OR INVEST IN SECURITIES TO SUCH EXTENT WHICH SHALL BE BEYOND THEIR AFFORDABLE LIMIT OR EXTENT. CLIENTS SHALL FURTHER APPRECIATE THAT LOSSES MAY BE INCURRED RATHER THAN PROFIT MADE AS A RESULT OF TRADING OR INVESTING IN SECURITIES. IN ANY EVENT, IN LIGHT OF RECENT DEVELOPMENTS IN INTERNET OR OTHER ELECTRONIC TRADING SERVICES, CLIENTS SHALL UNDERSTAND THAT THERE ARE RISKS ASSOCIATED WITH USING THE INTERNET OR OTHER ELECTRONIC TRADING SERVICES WHICH ARE ADDITIONAL TO THOSE NORMALLY INCURRED IN TRADITIONAL MODES AND MANNERS OF SECURITIES TRADING AND INVESTMENT.
FURTHER, CLIENTS USING OR CONTEMPLATING TO USE MARGIN FACILITIES IN OR FOR TRADING OR INVESTING IN SECURITIES SHALL FURTHER APPRECIATE AND UNDERSTAND SUCH RISKS ASSOCIATED WITH THE USE OF MARGIN FACILITIES IN TRADING OR INVESTING IN SECURITIES, AND SHALL READ THIS AGREEMENT WITH EXTRA CARE AND CAUTION BEFORE ACCEPTING OR DECIDING TO ACCEPT ANY MARGIN FINANCING ARRANGEMENT.
CLIENTS WHO HAVE ANY DOUBT ABOUT THIS AGREEMENT OR ABOUT THE SALE AND/OR PURCHASE OF SECURITIES SHALL CONSULT THIS OWN SOLICITOR(S), ACCOUNTANT(S) OR OTHER INDEPENDENT PROFESSIONAL ADVISER(S).
1.1 In this Agreement:
“Account” means the securities trading account(s) (including, without limitation, stock options trading account and collective investment account) opened and maintained by Eternal Pearl (as defined below) on behalf of Client pursuant to the Account Application and the terms of this Agreement;
“Account Application” means the application submitted by Client to Eternal Pearl in such form as required by Eternal Pearl for the opening and maintaining of an Account under the terms of this Agreement;
“Advice” means a written or typed record (including facsimile or other electronic means from which it is possible to produce a hard copy) (a) confirming and setting out the particulars of any transaction executed by Eternal Pearl on any Account, or (b) recording any other event (including without limitation receipts or withdrawals of assets) in relation to the Account, and containing such information as Eternal Pearl shall consider appropriate;
“this Agreement” means this Client Agreement and Schedules and Appendix(ces) (if any) and Supplement(s) (if any), the Account Application and any applicable schedule, appendices and supplements and/or other documents as specified in the Schedules or determined by Eternal Pearl from time to time;
“Authorised Person” means each of those persons specified as such in the Account Application, or subsequently appointed as such where notice of such appointment has been given to Eternal Pearl pursuant to the terms of this Agreement provided that such notice shall not take effect until such time as prescribed by Eternal Pearl at is sole and absolute discretion, and in case where no time limit is prescribed by Eternal Pearl, then the relevant appointment shall take effect five (5) days after the actual receipt by Eternal Pearl of it;
“Authorised Third Party” means each of those persons, if any, specified as such in the Account Application, or subsequently appointed as such and notice of such appointment has been given to Eternal Pearl pursuant to the terms of this Agreement provided that such notice shall not take effect until such time as prescribed by Eternal Pearl at is sole and absolute discretion, and in case where no time limit is prescribed by Eternal Pearl, then the relevant appointment shall take effect five (5) days after the actual receipt by Eternal Pearl of such notice;
“CCASS” means the Central Clearing and Settlement System established and operated by Hong Kong Securities Clearing Company Limited;
“Client” means the person in whose name Eternal Pearl has agreed to open and maintain the Account in accordance with the terms of this Agreement and shall in the case where Client: (i) is/are individual(s) include Client and Client’s respective executors and administrators; (ii) is a sole proprietorship firm include the sole proprietor and Client’s executors, administrators and successors in the business; (iii) is a partnership firm include the partners who are the partners of the firm at the time when the Account being maintained and any other person or persons who shall at any time hereafter be or have been a partner or partners of and in the firm and all the aforesaid partners’ respective executors, administrators and the successors to such partnership business; and (iv) is a company include such company and its successors;
“Eternal Pearl” means Eternal Pearl Securities Limited, a company incorporated in Hong Kong with limited liability and licensed by SFC (as defined below) to carry out Regulated Activity Type 1 (dealing in securities) under and pursuant to the SFO (as defined below), and where the context so requires or permits, Eternal Pearl shall be deemed to refer to the Group;
「恒明珠」 指恒明珠证券有限公司，一家于香港成立的有限责任公司，其已获证监会批准从事证券及期货条例项下受规管活动第一类 (证券买卖) ，于下开合适处或关连处当解释作集团；
“Event of Default” means each of the events set out in Clause 16.1;
“Facility” in respect of an Account, means any financial accommodation provided by Eternal Pearl from time to time to facilitate the acquisition and holding of securities whether or not such securities are listed on an Exchange;
“Group” means Eternal Pearl Securities Limited (being defined as Eternal Pearl as set out above) together with its subsidiaries and associated companies, and “member of the Group” shall be interpreted and construed accordingly;
「集团」 指恒明珠证券有限公司 (于上定义为恒明珠) 及其附属及相联公司，而「集团成员」应作相应解释；
“HKEx” means Hong Kong Exchanges and Clearing Limited;
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China;
“Laws” means all laws, rules, regulations and regulatory requirements applying to Eternal Pearl, and to other brokers and dealers instructed by Eternal Pearl, including, where applicable, the rules of the relevant clearing house including CCASS, the rules of the Stock Exchange and SFO;
“Regulations” means the rules of the Regulators (as defined below) or other laws, rules, codes, guidelines, circulars and regulatory directions promulgated, implemented, issued and/or enforceable by the Regulators from time to time;
“Regulators” means the SFC, the Stock Exchange, the relevant clearing house including CCASS and any other regulator whether in Hong Kong or elsewhere;
“securities” means “securities” as defined in the SFO and (if applicable) any interest in the collective investment scheme that is a registered scheme as defined in the Mandatory Provident Funds Schemes Ordinance (Chapter 485 of the Laws of Hong Kong) or its constituent fund as defined in Section 2 of the Mandatory Provident Fund Schemes (General) Regulation (Chapter 485A of the Laws of Hong Kong);
“SFO” means the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong);
“SFC” means the Securities and Futures Commission of Hong Kong;
“Stock Exchange” means The Stock Exchange of Hong Kong Limited and, insofar as the context so requires or permits, any other stock exchange, market or association of dealers in any part of the world on which securities are traded; and
“subsidiary” shall have the same meaning given to it under the Companies Ordinance (Chapter 622 of the Laws of Hong Kong) (as amended from time to time).
1.1A For the purposes of this Agreement, two companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company, and “associated company” shall be interpreted and construed accordingly.
1.2 In this Agreement 在本协议中：
1.2.1 the singular shall, and shall be deemed to, include the plural and vice versa;
1.2.2 words importing any gender shall include every gender, and references to persons shall include companies, corporation, and unincorporated;
1.2.3 where Eternal Pearl or any member of the Group is given a discretion, such discretion shall be absolute and if exercised, to the fullest extent permitted by applicable laws, Eternal Pearl shall not incur any liability of whatsoever nature to Client or any other person and, unless otherwise stated, Eternal Pearl shall not be required to give any reason for its action, inaction or decision;
1.2.4 the headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement;
1.2.5 references to any statute, statutory provision or Regulations shall include a reference to that statute, provision or Regulations as from time to time amended, replaced, modified, extended or re-enacted;
1.2.6 words not defined shall have the meanings ascribed to them in this Agreement, the SFO or the Regulations made unless the context requires otherwise;
1.2.7 if there is any inconsistency between the Chinese and English versions of this Agreement, the English version shall apply and prevail;
1.2.8 any reference in this Agreement to an ordinance or a provision of any Regulations shall be deemed to include such ordinance or provision as now or hereafter amended, replaced, modified, extended or re-enacted;
1.2.9 in the event of any inconsistency between any provision of this Agreement and any Laws, the latter shall prevail and Eternal Pearl shall be entitled in its discretion to take or refuse to take any action or to demand that the Client shall take or refrain from taking any action to ensure compliance with the same. All actions taken by Eternal Pearl in accordance with the Laws shall be binding on the Client.
1.3 Unless otherwise specified in this Agreement or by Eternal Pearl in writing, any interest owed by Client to Eternal Pearl in connection with this Agreement shall be calculated on the basis of a 365-day year or 366-day year (if the year in question is a leap year). Such basis may be changed by Eternal Pearl in its absolute discretion, at any time and from time to time, without notice to or consent from Client unless such notice or consent is stated in this Agreement, or other written agreement by Eternal Pearl, to be necessary.
2. ACCOUNT OPENING AND MAINTENANCE开立及维持账户
2.1 Client hereby irrevocably and irreversibly instructs and authorises Eternal Pearl to open and maintain Account(s) (including, without limitation, stock options trading account and collective investment account) in the name of Client for purchasing, investing in, selling, exchanging or otherwise dealing in securities in Hong Kong or elsewhere in accordance with this Agreement.
2.2 In opening each and every Account, Client shall submit such detailed information to Eternal Pearl as prescribed by Eternal Pearl, which information shall include but shall by no means limited to personal particulars, financial condition, financial sources and resources, asset portfolio, investment experience, investment objectives, academic background, knowledge on and/or awareness of securities and derivative products. For avoidance of any doubt, Client shall, and shall continue to, furnish Eternal Pearl with such or such information and/or further information as may be or shall be prescribed by Eternal Pearl from time to time.
2.3 Further, in opening each and every Account, Client shall complete and submit to Eternal Pearl such account opening documentation, which shall include but shall not be limited to account opening forms.
2.4 Client shall furnish Eternal Pearl with a specific mandate with respect to each Account on the person(s) being authorised to operate and/or conduct trading or investment through such Account, and in the case of Client which is a corporation, the Client shall furnish Eternal Pearl with the relevant board resolutions or minutes. Any change in particulars of any mandate shall be reported to Eternal Pearl within 24 hours. In any event, Eternal Pearl shall have sole and absolute discretion to allow or disallow any change in mandate of any Account, and no Client shall have any recourse whatsoever against Eternal Pearl for allowing or disallowing any change in mandate. Further, Client shall submit at its own costs its latest personal particulars (in case the Client is an individual) or its latest corporate particulars (in case the Client is a corporation) for consideration, scrutiny or verification by Eternal Pearl upon request by Eternal Pearl from time to time.
在开立任何账户时，客户必须将相关账户的操作授权文件给予恒明珠，若客户为商业机构，须进一步向恒明珠提交有关之董事会决议。如操作授权需要作出改动，客户必须在24小时内通知恒明珠，而恒明珠有绝对酌情权同意或拒绝任何操作授权的改动，客户绝不得异议。此外，客户必须按恒明珠不时提出之要求向恒明珠提交其最新近之个人资料 (如客户为个人) 或商业机构资料 (如客户商业机构) ，以供恒明珠核对。
2.5 Further, in case of any changes in Client’s particulars, in Client’s signature or in the mandate, Client shall notify Eternal Pearl in writing writing within 24 hours. In any event, Client shall comply with the Fourth Schedule and furnish such information and particulars concerning and relating to the Client to Eternal Pearl upon request by Eternal Pearl from time to time, and Client shall observe such time limit as prescribed in the Fourth Schedule. Any breach of this Clause or the Fourth Schedule shall result in cancellation or suspension of any or any relevant account in accordance with Clause 2.7.
2.6 Eternal Pearl shall use its best endeavours to strike a good balance between compliance with regulatory regime regulating aspects other than personal data protection of the one part and personal data protection of the other part, and in any event, Eternal Pearl shall use its best endeavours to comply with the following 6 principles in personal data protection as set out in the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong), with Eternal Pearl being the data user and each individual Client (but not corporate Client) being each a data subject:
(a) Data Protection Principle 1 – Data Collection Principal:
(i) Personal data shall be collected in a lawful and fair way, for a purpose directly related to the function / activity of the data user;
(ii) Data subjects shall be notified of the purpose and the classes of persons to whom any personal data may be transferred; and
(iii) Personal data collected should be necessary but not excessive.
保障数据守则1 - 收集个人数据的目的及方式：
(b) Data Protection Principle 2 – Accuracy and Retention Principal:
Practicable steps shall be taken to ensure personal data is accurate and not kept longer than is necessary to fulfill the purpose for which it is used.
保障数据守则2 - 个人资料的准确性及保留期间：
(c) Data Protection Principle 3 – Data Use Principle:
Personal data shall be used for the purpose for which it is collected or for a directly related purpose, unless voluntary and explicit consent with a new purpose is obtained from the data subject.
保障数据守则3 - 个人数据的使用
(d) Data Protection Principle 4 – Data Security Principle:
A data user shall take practicable steps to safeguard personal data from unauthorized or accidental access, processing, erasure, loss or use.
保障数据守则4 - 个人资料的保安：
(e) Data Protection Principle 5 – Openness Principle:
A data user shall take practicable steps to make personal data policies and practices known to the public regarding the types of personal data it holds and how the data is used.
保障数据守则5 - 信息须在一般情况下可提供：
(f) Data Protection Principle 6 – Data Access and Correction Principle:
A data subject shall be given access to his/her personal data and allowed to make corrections if it is inaccurate.
保障数据守则6 - 查阅个人资料：
Further details of and concerning the personal data protection policy of Eternal Pearl are set out in Clause 18 and the Fifth Schedule.
恒明珠将尽其所能在保障个人资料及满足其它监管及法定要求中取得平衡，无论如何，恒明珠将按照在个人资料(私隐) 条例 (香港法例第486章) 所列载之六大原则收集、处理及保障个人数据。恒明珠相关的私隐政策详列于第18条及第五附件。
2.7 Eternal Pearl may suspend and/or cancel any Account with or without any prior notice to Client in case of any failure on the part of Client to comply strictly with the preceding provisions in this Clause 2, and Client shall not have any recourse whatsoever against Eternal Pearl in any or any such suspension or cancellation of any Account. Further, in any case of money laundering or suspected money laundering through any Account, Eternal Pearl shall freeze the Account and report the same to law enforcement agencies including the Joint Financial Intelligence Unit of Hong Kong so as to discharge any obligation on the part of Eternal Pearl under the Organised and Serious Crimes Ordinance (Chapter 455 of the Laws of Hong Kong) as well as the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (Chapter 615 of the Laws of Hong Kong), and under such circumstance, no property, asset or content of or in the securities account concerned shall be dealt with pending order from the court or from the law enforcement agency(ies) concerned (whichever shall be appropriate).
遇有任何客户不遵从此第2条，恒明珠可以在没有给予客户事先通知的情况下实时暂停相关账户的运作甚或取消相关账户，而客户绝不得因此而向恒明珠作出任何申索或提起任何诉讼。再者，遇有任何清洗犯罪得益或涉嫌个案，恒明珠定必通告执法部门包括联合财富情报组以履行恒明珠有组织及严重罪行条例 (香港法例第455章) 及打击洗钱及恐怖分子资金筹集(金融机构) 条例 (香港法例第615章) ，并将相关的账户冻结，除依据法院命令及/或执法部门指示外 (以合适者为准) ， 相关账户内的资产或财物绝不得以任何方式处置。
3. ETERNAL PEARL’S SUITABLE INFORMATION TO CLIENT恒明珠给予客户合适之资料
3.1 Eternal Pearl may, at Client’s request, agree to deal in securities on Client’s behalf and provide information (as the case may be) in relation to such securities, which information shall be reasonably suitable for Client having regard to Client’s financial situation, investment experience and investment objectives to the extent as required by the Regulations. Further, Eternal Pearl shall provide to Client upon request product specifications, any prospectus or other offering document covering securities which are derivative products in which Client wishes to consider dealing, and which derivative products shall be reasonably suitable for Client having regard to Client’s financial situation, investment experience and investment objectives to the extent as required by the Regulations.
3.2 If Eternal Pearl solicits the sale of or recommends any financial product to Client, the financial product concerned shall be reasonably suitable for Client having regard to Client’s financial situation, investment experience and investment objectives to the extent as required by the Regulations. No other provision of this Agreement or any other document Eternal Pearl may ask Client to sign and no statement Eternal Pearl may ask Client to make derogates from this Clause. For the purpose of this Clause, “financial product” means any securities, futures contracts or leveraged foreign exchange contracts as defined under the SFO. Regarding “leveraged foreign exchange contracts”, it is only applicable to those traded by persons licensed for Type 3 regulated activity.
假如恒明珠向客户招揽销售或建议任何金融产品,该金融产品必须是恒明珠须在监管规则所规定的范围内经考虑客户的财政状况、投资经验及投资目标后而认为合理地适合客户的。本协议的其它条文或任何其它恒明珠可能要求客户签署的文件及恒明珠可能要求客户作出的声明概不会减损本条款的效力。就本条的目的而言，「金融产品」指 <证券及期货条例> 所界定的任何证券、期货合约或杠杆式外汇交易合约。就「杠杆式外汇交易合约」而言，其只适用于由获得发牌经营第3类受规管活动的人所买卖的该等杠杆式外汇交易合约。
3.3 Eternal Pearl is not acting as an investment advisor or in a fiduciary capacity. Subject to Clause 3.2, and information provided by Eternal Pearl’s officers (including directors), employees or agent, irrespective of whether or not such information or suggestion is given at Client’s request, shall not be construed as investment advice. Client should ask their own investment advice from a suitably qualified adviser and makes his/her own independent judgment and decision with respect to such Instruction. Eternal Pearl could not guarantee or assure the result of any transaction.
恒明珠并非以投资顾问或受信人之身份行事。受限于第3.2条，对于恒明珠的职员 (包括董事) 、雇员或代理人提供的任何数据及建议，不论是否应客户要求提供的，均不得被诠释为投资意见。客户应向合适及具备资格的顾问征询投资意见及对每一指示独立地作出其判断或决定。恒明珠不能对交易的结果作出任何保证或担保。
3.4 Clause 3.2 (and the provision of information, advice and/or recommendations which shall be reasonably suitable under Clause 3.1) shall not apply where Client is (i) an “Institutional Professional Investor” or (ii) a “Corporate Professional Investor” which meets the requirements under paragraphs 15.3A and 15.3B of the “Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission” and accepts to be treated as a professional investor under the Regulations, in which case Client shall make its own judgments and decisions independently without reliance on Eternal Pearl in its decisions in relation to dealing in securities. Definition and particulars of “Professional Investor” as prescribed under the SFO are set out in the Eight Schedule.
第3.2条(及在第3.1条向客户提供合理地适合的意见、数据及/或建议的条款)将不适用于以下情况:如客户为 (i)「机构专业投资者」或 (ii) 符合「证券及期货事务监察委员会持牌人或注册人操守准则」内第15.3A及15.3B段的规定及同意根据监管规则被视为专业投资者的「机构专业投资者」。在上述情况客户应作出独立判断及决定有关证券交易之事宜，而不应依赖恒明珠。有关专业投资者在证券及期货条例中的定义及特质列载于第八附件。
4. CLIENT’S INSTRUCTIONS AND STANDING AUTHORITY客户指示及常设授权
4.1 Instructions given by Client shall be irrevocable, irreversible and shall, in any case, at Client’s own risks regardless of the mode in which such instructions are or shall be given by Client. In any event, instructions given by Client may be given in writing, by verbal means, by facsimile or by other electronic modes (including through the E-Service, as defined in the Sixth Schedule).
4.2 Further to Clause 4.1, unless Client gives specific irrevocable and irreversible instructions to the contrary, Client agrees and acknowledges that all orders and/or instructions on trading and/or investing in securities shall only be valid upon receipt by Eternal Pearl, and further, all orders and instructions shall only be valid for the material trading day of the Exchange (in this Clause 4 referred to as a “Trading Day”) on which such orders and/or instructions are given and received by Eternal Pearl. Any order or instruction received by Eternal Pearl after the close of a Trading Day shall be regarded as an order or instruction by Client to Eternal Pearl for the next Trading Day and such order or instruction shall only be valid for the next Trading Day accordingly.
4.3 Further to Clauses 4.1 and 4.2 but subject to Clause 3, Client irrevocably confirms as at the time of giving the instructions and/or entering into any transaction,
(a) Client has considered prudently, carefully and thoroughly his/her/its financial position, financial needs, investment strategy, investment objectives and the most important of all, suitability of such investment vis-à-vis the named aspects as well as the Client’s own situation;
(b) Client has thoroughly read, considered and understood this Agreement, the nature of the transaction and the risks involved (including but not limited to the risks factors as set out in the risks disclosure statement in the ending part of this Agreement);
(c) Client fully understands and accepts the terms and conditions as well as the risks of any transaction and irrevocably agrees to assume the risks of the transaction;
(d) Client has made his/her/its own independent decision to enter into the transaction without taking into account any information, whether written or oral, provided or furnished by Eternal Pearl whether or not at the request of the Client; and
(e) Client fully understands that Eternal Pearl cannot guarantee or assure the result or outcome of any transaction whatsoever,
and as such, Client shall make his/her/its own independent decision with respect to each instruction to Eternal Pearl, and whatever the nature and scope of such instruction, Eternal Pearl shall deal with it in accordance with this Agreement, and in particular, Clauses 5 and 6.
4.4 For any instruction, the name of Client (or any of them in case where Client is more than one person unless otherwise stated in the Account Application), the name of Client’s Authorised Person or Authorised Third Party (or the names of the Authorised Persons or Authorised Third Parties if the Account Application states that more than one Authorised Person or Authorised Third Party is required) where such instruction is given by the Client’s Authorised Person(s) or Authorised Third Party(ies) and the number of the relevant account opened with Eternal Pearl shall be quoted provided always that Eternal Pearl may but shall not be under any duty to verify or ensure as to the identity of the or any person giving such instruction and Eternal Pearl shall be entitled (but not be obliged) to act on the same and rely on its belief that such instruction emanates from Client, Client’s Authorised Person(s) or Authorised Third Party(ies). In case of Client having more than one (1) Account, Client shall give clear, specific and unequivocal instruction to Eternal Pearl on the exact Account through or against which any transaction is or shall be conducted, and in case of any ambiguity or doubt, Eternal Pearl may, if it in its absolute discretion deems fit to conduct and/or complete such transaction for Client, elect in its sole and absolute discretion any Account of Client through or against which the relevant transaction is or shall be conducted or completed, and further or in the alternative, Eternal Pearl may in its sole and absolute discretion refuse to carry out or otherwise act in accordance with any instruction as set out in Clauses 5 and 6.
4.5 Client may grant to Eternal Pearl the following standing authorities and once granted, Client agrees to be bound by the terms thereof:
4.5.1 a standing authority pursuant to the Securities and Futures (Client Money) Rules (Cap. 571I of Laws of Hong Kong) as amended from time to time and unless the context otherwise requires, all expressions used in any standing authority shall have the same meaning as in the SFO and the Securities and Futures (Client Money) Rules (Chapter 571I of the Laws of Hong Kong) as amended from time to time;
根据不时修订之 <证券及期货(客户款项)规则> (香港法例571 I章) 之常设授权，除文意另有所指外，该常设授权内的所有词句任何表达形式，均与证券及期货条例及《证券及期货(客户款项)规则》（香港法例第571I章）不时修订之定义具有相同意思；
4.5.2 a standing authority pursuant to the Securities and Futures (Client Securities) Rules (Cap. 571H of Laws of Hong Kong) as amended from time to time and for avoidance of any doubt, securities borrowing and lending agreement stated in the standing authority shall include but not be limited to market standard repurchase agreement (such as global master repurchase agreement) and unless the context otherwise requires, all expressions used in any standing authority shall have the same meaning as in the SFO and the Securities and Futures (Client Money) Rules (Chapter 571H of the Laws of Hong Kong) as amended from time to time; and
根据不时修订之 <证券及期货(客户证券)规则> (香港法例571H章)之常设授权及为免生疑问该常设授权内列明的证券借贷协议包括但不限于标准回购协议 (如全球主回购协议) ，除文意另有所指外，该常设授权内的所有词句任何表达形式，均与证券及期货条例及《证券及期货(客户款项)规则》（香港法例第571H章）不时修订之定义具有相同意思；及
4.5.3 a standing authority under and/or pursuant to Sub-Clause 4.5.1 covers money held or received by Eternal Pearl (including any interest accrued from the holding of any money which does not belong to Eternal Pearl) in any account maintained by Client with Eternal Pearl, the net equity balance of which exceeds the minimum margin requirements of the Account concerned.
4.5.4 a standing authority under and/or pursuant to Sub-Clause 4.5.1 authorises Eternal Pearl to, in Eternal Pearl’s sole and absolute discretion and without having to provide Client with any prior notice, whether oral or written, obtain prior confirmation and/or direction from Client, to transfer from the relevant Account any part or the entire amount of the money therein for the following purposes:
(a) transfer into any segregated account opened and maintained by Client with any member of the Group for the purpose of satisfying obligations or liabilities due to any member of the Group, whether such obligations or liabilities are actual, contingent, primary or collateral, secured or unsecured, or joint or several;
(b) interchange with any of the segregated accounts which are maintained by Client with any member of the Group for the purpose of satisfying any margin requirement or any amount due under any account; or
(c) remit into any banking account as designated by Client;
4.5.5 a standing authority under and/or pursuant to Sub-Clause 4.5.2 covers securities deposited in any Account such that Eternal Pearl may deal with Client’s securities and securities collateral from time to time purchased or held by Eternal Pearl and/or any member of the Group for and on behalf of Client in one or more of the following ways without having to provide Client with any prior notice, whether oral or written, obtain prior confirmation and/or direction from Client:
(a) apply any securities or securities collateral for or in relation to securities borrowing and lending agreement;
(b) deposit any securities or securities collateral with an authorised institution as defined in the Banking Ordinance (Chapter 155 of the Laws of Hong Kong) as collateral for financial accommodation provided to Eternal Pearl; or
(c) deposit any securities collateral with CCASS or any other clearing house recognised under the SFO or any other intermediary licensed to deal in securities as collateral for the discharge and satisfaction of Eternal Pearl’s clearing and settlement obligations and liabilities remit into any banking account as designated by Client;
(d) treat and deal with the securities and securities collateral in such manner as Eternal Pearl deems fit and appropriate taking into account any relevant or appropriate requirements under any applicable Laws and Regulations from time to time.
4.5.6 such other lawfully agreed standing authority, as amended from time to time
4.6 Subject to the Laws, any instruction given or purportedly given by Client, its Authorised Person(s) or Authorised Third Party(ies) after;
4.6.1 the revocation by Client of its Authorised Person(s)’ or Authorised Third Party(ies)’ authority; or
4.6.2 the commencement of liquidation or bankruptcy (as the case may be) in respect of Client or the occurrence of any analogous event; shall continue to be valid and effective in Eternal Pearl’s favour until such time as prescribed by Eternal Pearl at is sole and absolute discretion, and in case where no time limit is prescribed by Eternal Pearl, then the relevant appointment shall take effect five (5) days after the actual receipt by Eternal Pearl of a written notice informing Eternal Pearl of the occurrence of the relevant event from Client (in case of the said revocation) or in case of the said liquidation or bankruptcy, the liquidator, the trustee in bankruptcy or similar officer.
4.7 Any standing authority is given without prejudice to any other authority or right which Eternal Pearl and/or any member of the Group may have in relation to dealing with any money or securities deposited in any Account. In any event, any standing authority shall be valid for twelve (12) months from 1st March of one calendar year to 28th or 29th February (whichever shall be appropriate) of the immediately following calendar year, and in case where this Agreement is executed after 1st March of any calendar year, then the first standing authority shall last for less than one (1) full calendar year and expires on 28th or 29th February (whichever shall be appropriate) of the following calendar year. Any standing authority may be revoked by Client any time by serving on Eternal Pearl a written notice to such effect. Revocation of any standing authority shall not take effect until actual receipt of such notice by Eternal Pearl and shall not affect any transaction undertaken by Eternal Pearl pursuant to the standing authority prior to such revocation taking effect. At least fourteen (14) days prior to the expiry of the standing authority or on any other date as may be determined by Eternal Pearl from time to time and notifies Client in writing, Eternal Pearl may give Client a written notice reminding Client the impending expiry of the standing authority and informing Client that in case he/she/it does not object to the renewal of the standing authority, the standing authority shall be deemed to have been renewed on continual basis on the same terms and conditions as specified in this Agreement until 28th or 29th February (whichever shall be appropriate) of the following calendar year.
4.8 Any instruction given by Client’s Authorised Person(s) or Authorised Third Party(ies), as the case may be, shall be deemed to be given by the Client. Client hereby agrees to accept full responsibility and shall not later challenge the instructions given by Client’s Authorised Person(s) or Authorised Third Party(ies), as the case may be.
5. ETERNAL PEARL’S DISCRETION恒明珠之酌情权
Eternal Pearl shall be entitled to rely on and to act as it thinks fit in accordance with any instruction given or purportedly given by or on behalf of Client which Eternal Pearl believes in good faith to have been given by Client or its Authorised Person(s) or Authorised Third Party(ies). Notwithstanding the foregoing, Eternal Pearl shall have discretion to reject such instruction. Eternal Pearl shall be under no obligation either to act for the Client or upon any instruction, or execute any transaction for or on behalf of the Client if there are insufficient funds in the Account, or if Eternal Pearl believes that the acting or the execution might result in either Eternal Pearl, any member of the Group or the Client contravening any Laws or Regulations or for any other reason. If Eternal Pearl in its absolute discretion declines to act for the Client or act upon any instruction, or execute any transaction for or on behalf of the Client, Eternal Pearl shall in its own discretion notify the Client accordingly, but Eternal Pearl shall not in any circumstances whatsoever be liable in any way for any loss, damages, liability, cost, expense or whatsoever suffered or incurred by the Client arising in or in connection with the exercise of the above discretion by Eternal Pearl. In any event, Client shall not have any recourse against Eternal Pearl whatsoever.
6. EXECUTION OF ORDER执行指令
6.1 Eternal Pearl may, in carrying out Client’s instructions, contract or otherwise deal with or through any broker for the purchase or sale of securities on any Exchange, or any person associated with Eternal Pearl in any manner, on such terms as Eternal Pearl may in its discretion determine.
6.2 Eternal Pearl shall not be responsible for failures or delays in the transmission of offers or instructions due to a breakdown or failure of transmission of communication facilities, or to any other cause or causes beyond the reasonable control or anticipation of Eternal Pearl.
7.1 Eternal Pearl may, and, if required by the Laws, shall, send to the address(es) (email address or otherwise) and/or other contact number(s) of Client on Eternal Pearl’s records an Advice (which may be in electronic format) after Eternal Pearl has facilitated a transaction with or for the Account, or upon the occurrence of certain events of or movements in Client’s Account, in accordance with the Laws in relation to the Advice:
7.1.1 Client agrees that it is its responsibility to ensure that it receives Advice in due time and to make enquiries with and obtain the same from Eternal Pearl immediately if not duly received;
7.1.2 any purported discrepancy between the contents of any Advice and Client’s instructions shall be notified to Eternal Pearl, orally or in writing in accordance with the notice provisions of this Agreement, within seven (7) days following the date of issue or re-issue of the Advice to Client; and
7.1.3 at the end of the seven (7) days’ period, the contents of the Advice shall be conclusive evidence of the particulars set out therein without any further proof that the Advice and/or the transaction or event to which it relates are correct (subject to the right of Eternal Pearl, which may be exercised by it at any time and from time to time, to adjust any entries in the Account and/or details in the Advice where they have been wrongly or mistakenly made by it), except for:
220.127.116.11 any alleged errors notified by Client to Eternal Pearl in accordance with the notice provisions in this Agreement;
18.104.22.168 any payments made on forged or unauthorised endorsement;
22.214.171.124 any unauthorised transactions arising from forgery or fraud by any third party (including Client’s employee, agent or servant) in relation to which Eternal Pearl has failed to exercise reasonable care and skill;
126.96.36.199 any unauthorised transactions arising from forgery or fraud by any employee, agent or servant of Eternal Pearl; and/or
188.8.131.52 any other unauthorised transaction arising from the default or gross negligence on the part of Eternal Pearl or any of its employees, agents or servants.
8.1 Client shall pay to Eternal Pearl in cleared funds any money required for the purchase of securities or shall deliver to Eternal Pearl the certificates or documents of title or procure the transfer of securities held in CCASS required for the sale of securities (as the case may be), in each case at any time demanded by Eternal Pearl (even if required to be paid and/or delivered earlier than the settlement date), and Client shall take all necessary action to enable due settlement and/or delivery in respect of such purchase and sale in accordance with the Laws. Should Client fail to do so, Eternal Pearl is authorised:
8.1.1 in the case of a purchase transaction, to transfer or sell any such purchased securities to satisfy Client’s obligations to Eternal Pearl; or
8.1.2 in the case of a sale transaction, to borrow and/or purchase such sold securities to satisfy Client’s obligations to Eternal Pearl.
8.2 If Eternal Pearl has to obtain securities which Eternal Pearl has purchased on behalf of Client in the open market, following the failure of the selling broker to deliver on the settlement date, Client shall be responsible for any difference in prices and all incidental expenses in connection with such open market purchase.
9. SHORT SELLING卖空
Except for any security interest of Eternal Pearl or any member of the Group, securities provided by Client for selling or crediting into the Account(s) are fully paid with valid and good title and whose legal and beneficial titles are owned by the Client. Client confirms and undertakes that it will give Eternal Pearl information and/or assurances in relation to the ownership of the securities as Eternal Pearl may require before the selling order is placed. Client shall notify Eternal Pearl when a sale order relates to securities which the Client does not own i.e. where it involves short selling (including where the Client has borrowed stock for the purposes of the sale). Client acknowledges and agrees that no short selling orders will be accepted by Eternal Pearl unless Client provides Eternal Pearl with such confirmation, documentary evidence and assurance as Eternal Pearl in its opinion considers necessary to show the Client has a presently exercisable and unconditional right to vest such securities in the purchaser before placing any short selling order.
10. MARGIN TRADINGAND OPTION TRADING 孖展买卖及期权交易
10.1 Subject to the terms and conditions as set out in the First Schedule, Eternal Pearl may grant the Facility to the Client to conduct margin securities trading in respect of the Account.
10.2 Any option trading conducted through any Account shall be conducted in accordance with the terms and conditions as set out in the Third Schedule.
11. INITIAL PUBLIC OFFERINGS首次公开发售
Where the Client requests Eternal Pearl to apply on Client’s behalf for securities in a new issue for listing on an Exchange, the Client hereby agrees to comply with the provisions contained in the Second Schedule.
12. FOREIGN CURRENCY TRANSACTIONS外币交易
12.1 In the event that Client directs Eternal Pearl to enter into any transaction on an Exchange or other market on which such transactions are effected in a foreign currency, then any loss or damage arising as a result of any fluctuation in exchange rate shall be borne by Client regardless of whether or not Client has heeded warning by Eternal Pearl to Client on the exchange rate risks involved.
12.2 All initial and subsequent deposits for margin purposes shall be made at such juncture, in such currency and in such amounts as Eternal Pearl may, in its absolute discretion, require from time to time.
12.3 When such a contract is liquidated, Eternal Pearl shall debit or credit the Account in such currency in which the Account is denominated, at a rate of exchange determined conclusively by Eternal Pearl on the basis of the then prevailing relevant inter-currencies exchange rate.
12.4 In the event that Eternal Pearl exercises any of its rights under this Agreement, including without limitation the combination or consolidation of Accounts or the transfer of Client money and such combination, consolidation or transfer or exercise of any other right involves any conversion of one currency into another, such conversion shall be based solely on the spot rate of exchange (as conclusively determined by Eternal Pearl) prevailing in such foreign exchange market as determined by Eternal Pearl to be relevant on the date of such combination, consolidation, transfer or exercise of that right.
12.5 In the event that Client places an order for the sale or purchase of Renminbi-denominated securities, Client acknowledges and agrees that:
(a) Renminbi is subject to foreign exchange controls and is not freely convertible, and therefore transactions involving Renminbi-denominated securities may involve substantial exchange risks;
(b) unless otherwise indicated by Eternal Pearl, transactions of Renminbi-denominated securities will be settled in Renminbi; and
(c) if Eternal Pearl is required to settle a transaction on behalf of Client by purchasing or selling Renminbi from or through the market, unless otherwise indicated by Eternal Pearl, the exchange rate shall be based on prevailing market rate or such rate as quoted by a licensed bank in Hong Kong.
13. SECURITIES IN THE ACCOUNT(S) 账户内的证券
13.1 Client specifically authorises Eternal Pearl, in respect of any of the securities (whether in Hong Kong or elsewhere) deposited by Client with Eternal Pearl or purchased or acquired by Eternal Pearl on behalf of Client, and held by Eternal Pearl for safe keeping, to register the same in the name of Eternal Pearl or any nominee appointed or agreed by Eternal Pearl (whether such nominee is a person in Hong Kong or elsewhere) or in Client’s name, or deposit in a segregated account which is designated as a trust account or client account and established and maintained in Hong Kong by Eternal Pearl with an authorised financial institution, an approved custodian or another intermediary licensed for dealing in securities (in this Clause 13 referred to as “Segregated Account for Securities”) or deposit with any overseas custodian or overseas clearing house subject to compliance with applicable Regulations.
客户特此授权予恒明珠就客户存于恒明珠之任何证券，或由恒明珠代表客户买入或收购之任何证券，还有恒明珠代为安全保管而持有之任何证券，(不论该证券乃于香港或其它地方)，皆可以恒明珠、任何集团成员或恒明珠指定或同意的任何代名人 (不论该代名人是在香港还是在其它地方的人士) 或客户名义登记该等证券，或将该等证券存入一个由恒明珠或任何集团成员开立及维持的独立账户内而该独立账户乃指定为信托账户或客户账户并设于香港一认可财务机构、核准保管人或其它获发牌提供证券交易之中介人 (于此第13条称为「独立证券账户」) 或将该等证券存于任何海外保管人或海外结算公司但须遵守适用的监管规则。
13.2 Client specifically authorises Eternal Pearl, in respect of any of the securities collateral (whether in Hong Kong or elsewhere) deposited with, or otherwise provided by or on behalf of Client to Eternal Pearl, to:
13.2.1 deposit in a segregated Account for Securities;
13.2.2 deposit in an account in the name of Eternal Pearl with an authorised financial institution, an approved custodian or another intermediary licensed for dealing in securities;
13.2.3 register in the name of Client on whose behalf the securities collateral has been received, Eternal Pearl or any nominee appointed or agreed by Eternal Pearl (whether such nominee is an entity situate in Hong Kong or elsewhere); or
以代其收受证券抵押品的客户、恒明珠或恒明珠指定或同意的任何代名人 (不论该代名人是在香港或是在其它地方的人士) 之名义登记;或
13.2.4 deposit with any overseas custodian or overseas clearing house subject to compliance with applicable Regulations.
13.3 Any securities and securities collateral (whether in Hong Kong or elsewhere) held by Eternal Pearl, any member of the Group, banker, institution, custodian, nominee, intermediary or any other person pursuant to this Clause 13 shall be at the sole risk of Client. Eternal Pearl, any member of the Group and the relevant associated entity, banker, institution, custodian, nominee, intermediary and person shall be under no obligation to insure Client against any kind of risk, which obligation shall be the sole responsibility of Client.
13.4 If in relation to any securities deposited with Eternal Pearl pursuant to this Clause 13 but which are not registered in Client’s name, any dividends or other distributions or benefits accrue in respect of such securities, the Account(s) shall be credited (or payment made to Client as may be agreed) with the proportion of such dividends, distributions or benefits equal to the proportion of the securities held on behalf of Client out of the total number or amount of such securities. In the event that the odd lot of such securities is not eligible for any such dividends, distributions or benefits, the odd lot held on behalf of Client will not be taken into account in the apportionment. Subject to applicable Laws and Regulations, Eternal Pearl may retain, or otherwise dispose of, for its own account and benefit, any fractional shares entitlements to which Client may be entitled, and entitlements (in any form whatsoever) arising from any odd lot held on behalf of Client or from the aggregation of odd lots held on behalf of the clients of Eternal Pearl (including Client). The foregoing shall not limit or prejudice, in any way, Eternal Pearl’s rights to reject Client’s instructions under Clause 5 including, without limitation its right to reject Client’s instructions in relation to the sale or purchase of any odd lot of any securities.
凡按本第13条存于恒明珠但并非以客户之名义登记的任何证券，一旦该等证券分派股息或其它分配或利益分发，账户 (或多个账户) 将被记入进帐 (若客户同意可另行收受)，该股息、分配或利益之分派比例将等如该等证券之总数或总额中代客户持有之证券部份。若该等证券的碎股并不合资格获得任何该等股息、分派或利益，则代客户持有的碎股将不获摊分该等股息、分派或利益。在受制于适用的法例及监管规则下，恒明珠可为其本身及其利益，保留或以其它方式处置客户可能享有的任何碎股权益，以及因任何代客户持有的碎股或合并代其客户们(包括客户)持有的碎股而获得的权益 (不论属任何形式)。前述将不会以任何方式限制或损害恒明珠于第5条下的权利可拒绝客户之指令包括但不限于其权利可拒绝就卖或买任何证券的任何碎股客户之指令。
13.5 If in relation to any securities deposited with Eternal Pearl or any member of the Group or any other person pursuant to this Clause 13 but which are not registered in the name of Client, and loss is suffered by Eternal Pearl or any member of the Group, the Account(s) may be debited (or payment made by Client as may be agreed) with the proportion of such loss equal to the proportion of the securities held on behalf of Client out of the total number or amount of such securities.
凡按本第13条存于恒明珠或任何集团成员或任何其它人士但并非以客户之名义登记的任何证券，一旦恒明珠或任何集团成员遭受损失，账户 (或多个账户) 将会被记入亏损 (若客户同意可另行支付)，该损失支付比例将等如该等证券之总数或总额中代客户持有之证券部份。
13.6 Except as provided in this Agreement or otherwise allowed under the Laws, Eternal Pearl shall not, without Client’s oral or written direction or standing authority, deposit, transfer, lend, pledge, re-pledge or otherwise deal with any of Client’s securities or securities collateral for any purpose.
13.7 Eternal Pearl is authorised, in accordance with applicable Laws or pursuant to a lawfully agreed standing authority, to dispose of any of Client’s securities or securities collateral (and Eternal Pearl shall have absolute discretion to determine which securities or securities collateral are to be disposed of) for the purpose of settling any liability owed by or on behalf of Client to Eternal Pearl.
13.8 The obligations of Eternal Pearl (or any other person permitted under this Agreement) to deliver, to hold or to register in Client’s name or in the name of Client’s nominee, any of Client’s securities or securities collateral shall be satisfied by the delivery, the holding or registration in Client’s name or Client’s nominee of securities of the same class, denomination and nominal amount as, and rank pari passu with, those originally deposited with or transferred to Eternal Pearl or any other person permitted under this Agreement or otherwise agreed by Client or acquired by Eternal Pearl on Client’s behalf (“Original Securities”) (subject always to any capital reorganisation which may have occurred in the meantime) and Eternal Pearl (or any other person permitted under this Agreement) shall not be bound to deliver or return securities which are identical with the Original Securities in terms of number, class, denomination, nominal amount and rights attached thereto.
就任何客户之证券或证券抵押品,恒明珠(或本协议允许的任何其它人士) 交付、持有或以客户或客户代名人的名义登记的责任将以交付,持有,以客户或客户代名人的名义登记等级、面值及面额及权益相等于原先存放于恒明珠或转移至恒明珠或本协议允许或客户同意的任何其它人士或恒明珠代客户认购之证券 (「原先之证券」) (但受制于任何其时已发生的资本重组) 作为履行该责任,而就数目、等级、面值、面额及附带权益而言,恒明珠(或本协议允许的任何其它人士) 并无责任交付或交回相同于原先之证券。
13.9 Where any securities are held in Eternal Pearl’s name, the name of any member of the Group or the name of any nominee appointed or agreed by Eternal Pearl in accordance with this Clause 13, Eternal Pearl or such member of the Group will not attend any meeting or exercise any voting or other rights including the completion of proxies except in accordance with written instructions of Client. Nothing in this Agreement shall in any way impose on Eternal Pearl or any member of the Group any duty to inform Client or to take any action with regards the attendance of meetings and to vote at such meetings. Eternal Pearl or any member of the Group has no duty in respect of notices, communications, proxies and other documents, relating to the securities received by Eternal Pearl or any member of the Group or to send such documents or to give any notice of the receipt of such documents to Client. Eternal Pearl and/or any member of the Group has/have the right to charge Client for its/their respective services in taking or arranging custody of Client’s securities or any action pursuant to Client’s instruction.
凡任何以恒明珠或任何集团成员，或恒明珠指定或同意之任何代名人 (按照本第13条) 名义持有之证券，除非客户另有书面指令，恒明珠或该集团成员一概不会出席任何会议，行使任何投票或其它权利，包括填妥委托书。本协议内无订明恒明珠或任何集团成员有责任通知客户出席会议及于会议中投票。就恒明珠或任何集团成员接收之证券，恒明珠或任何集团成员毋须负责有关该等证券之任何通知、讯息、委托书及其它文件，亦不会传达该等文件或发出任何有关已收取该等文件之通知予客户。恒明珠及/或任何集团成员有权因提供或安排保管客户证券或按客户指示行动之服务，而向客户收取费用。
13.10 For avoidance of any doubt, Eternal Pearl or any nominee appointed or agreed by Eternal Pearl (whether such nominee is a person in Hong Kong or elsewhere) may hold any securities for Client in a place outside Hong Kong, subject to compliance with applicable Regulations.
为免存疑，恒明珠、任何集团成员或恒明珠指定或同意的任何代名人 (不论该代名人是在香港还是在其它地方的人士) 在遵从适用的监管规则的情况下，可替客户在香港以外地方保有证券。
13.11 Without prejudice and in addition to other rights and remedies of Eternal Pearl, Eternal Pearl may, at any time and from time to time, dispose of any of the Client’s securities (whether in Hong Kong or elsewhere) or securities collateral (whether in Hong Kong or elsewhere) in settlement of any liability owed by or on behalf of Client to Eternal Pearl or a third party. Eternal Pearl is irrevocably and irreversibly authorised to do all things as necessary in connection with any such disposal without any liability for any resulting or associated loss or expense. Without prejudice to the foregoing, Client shall not have any recourse whatsoever against Eternal Pearl concerning, inter alia, the manner or timing of such disposal.
14. MONIES IN THE ACCOUNT(S) 账户内的款项
Subject to compliance with applicable Regulations, Eternal Pearl shall be entitled to deposit or transfer any monies held in the Account(s) or received for or on the account of Client with or to or interchangeably between one or more segregated account(s) opened and maintained by Eternal Pearl or any member of the Group in Hong Kong or elsewhere each of which shall be designated as a trust account or client account, at one or more authorised financial institution(s) and/or any other person(s) approved by the SFC for the purposes of Section 4 of the Securities and Futures (Client Money) Rules and/or any other person(s) overseas subject to compliance with applicable Regulations. Unless otherwise agreed between Client and Eternal Pearl and, any interest accrued on such monies shall belong to Eternal Pearl absolutely.
15. COMMISSIONS, FEES AND CHARGES, LIENS, SET-OFF AND CONSOLIDATION
15.1 In respect of every transaction or Account, Client shall pay to Eternal Pearl forthwith on demand such applicable interest, levy, charge, premium, brokerage, commission, fee (including, without limitation, dormant/inactive account fee), cost and expense for, in relation to and/or in connection with the Account whether or not under this Agreement from time to time. The most up to date advice and/or information on or concerning interest, levy, charge, premium, brokerage, commission, fee, cost and expense in connection with the purchasing, investing in, selling, exchanging or otherwise dealing in any securities in the Account can be found on the website of Eternal Pearl. Subject to applicable Laws, Eternal Pearl may, at any time and from time to time and in its absolute discretion, change any commission, fee and/or charge by upon having given relevant prior notice to Client. Client acknowledges that he/she is expected to check the website of Eternal Pearl or request updated information from Eternal Pearl from time to time before dealing in any securities and Client agrees that any information or notice posted on the website of Eternal Pearl from time to time shall be binding on Client and be sufficient and conclusive advice for all purposes and intents. Subject to applicable Laws, the new commission, fee and/or charge shall be applicable on the effective date specified in such notice, whether the specified effective date is before or after the date of such notice.
15.2 Client shall pay or reimburse Eternal Pearl forthwith on demand an amount equal to all commissions, brokerages, levies, fees, duties and taxes and all other charges and expenses incurred by Eternal Pearl arising out of or in connection with any transaction effected by Eternal Pearl as agent on behalf of Client or otherwise arising out of or in connection with the performance of the duties of Eternal Pearl under this Agreement. Detailed information of such fees can be found in the prospectus or explanatory memorandum of the relevant fund. In any event, the fees receivable by Eternal Pearl will not exceed the maximum amount of such fees as set out in the prospectus or explanatory memorandum of the relevant fund. All or part of the fees received by Eternal Pearl will be paid to the investment consultant serving Client’s account as his/her commission.
15.3 Without prejudice to other provisions of this Clause 15, Eternal Pearl may deduct any amount contemplated in Clauses 15.1 and 15.2 above from the Account.
15.4 Client shall be responsible to Eternal Pearl for all losses and expenses resulting from Client’s settlement failure, and shall be subject to such additional charges and interest therefor as Eternal Pearl may determine.
15.5 Subject to applicable the Laws, without limitation to and in addition to other rights and remedies of Eternal Pearl and other members of the Group, Client agrees that:
15.5.1 Without prejudice to any other provisions in this Agreement, Eternal Pearl shall have a general lien over all or any part of any money or securities held by Eternal Pearl for the discharge of Client’s obligations to Eternal Pearl or to a third party;
15.5.2 Eternal Pearl may at any time and from time to time without prior notice combine or consolidate all or any of Client’s accounts with, and/ or apply Client’s securities and/or other properties in or towards satisfaction of, any liabilities to Eternal Pearl;
15.5.3 Eternal Pearl may at any time and from time to time without prior notice set-off or transfer any sum in whatever currency standing to the credit of any of Client’s accounts with Eternal Pearl for or towards satisfaction of any of Client’s liabilities of whatever nature (including liabilities incurred as principal or surety and whether such liabilities be actual or contingent, primary or collateral, several or joint) to Eternal Pearl.
15.6 Eternal Pearl may:
15.6.1 without further disclosure to Client, receive, accept and retain for Eternal Pearl’s own account(s) and benefit absolutely from any broker or underwriter or issuer or any other third parties (who may or may not act as an agent of Client in any respect), any profit, rebate, reallowance, brokerage, commission, fee, benefit, profit, discount and/or other advantage arising out of or in connection with the provision of services to or handling of transactions for Client. Client agrees that the consent given hereunder shall constitute a permission or lawful authority for the purpose of Section 9 of the Prevention of Bribery Ordinance (Chapter 201 of the Laws of Hong Kong); and
15.6.2 without further disclosure to Client, pay to any broker or underwriter or issuer or any other third parties (who may or may not act as an agent of Client in any respect), any profit, rebate, reallowance, brokerage, commission, fee, benefit, profit, discount and/or other advantage arising out of or in connection with the provision of services to or handling or transactions for Client. Client agrees that the consent given hereunder shall constitute a permission or lawful authority for the purpose of Section 9 of the Prevention of Bribery Ordinance.
15.7 Without prejudice to and in addition to other rights and remedies of Eternal Pearl, Eternal Pearl shall be entitled but not be obliged (and is hereby authorised by Client), at its discretion and without notice to Client, to dispose of Client’s securities and/or other properties for the purpose of settling any liability owed by Client to Eternal Pearl for or in connection with:
15.7.1 dealing in securities which remains after Eternal Pearl has disposed of all other assets designated as collateral for securing settlement of that liability;
15.7.2 financial accommodation provided by Eternal Pearl to Client which remains after Eternal Pearl has disposed of all other assets designated as collateral for securing settlement of that liability; or
15.7.3 maintaining the Account(s) which has/have been designated by Eternal Pearl as inactive or dormant account(s).
15.8 Subject to applicable Laws and without prejudice to and in addition to any general lien and other rights and remedies entitled by Eternal Pearl at any time when Client is indebted to Eternal Pearl in any respect, Eternal Pearl shall be entitled but not be obliged (and Client irrevocably and unconditionally authorises Eternal Pearl) to, at its discretion and without prior notice to Client, at any time and from time to time:
15.8.1 to combine or consolidate all or any of Client’s existing accounts with Eternal Pearl regardless of whether notice is required and the nature of the account (i.e. whether deposit, loan or any other nature); and
15.8.2 to set-off or transfer any sum standing to the credit of any one or more of such accounts wherever they are situated, in order to satisfy Client’s liabilities to Eternal Pearl on any other account or other respect whatsoever.
15.9 Eternal Pearl is irrevocably and irreversibly authorised to do the above without notice and notwithstanding any settlement of account or other matter whatsoever. The liabilities referred to above include present or future, actual or contingent, primary or collateral, and several or joint. In addition, Eternal Pearl shall have the right to sell such securities, investments and property and utilise the proceeds to offset and discharge all the obligations of Client without any prior notice to Client, whether as principal or as surety, to Eternal Pearl regardless of:
15.9.1 whether any other person is interested in, or whether Eternal Pearl has made advances in connection with, such securities, investments or property; and
15.9.2 the number of accounts Client may carry with Eternal Pearl.
15.10 Client agrees to pay interest on all overdue balances owing by Client to Eternal Pearl (after as well as before any judgment), at such rate(s) from day to day as Eternal Pearl shall in its absolute discretion determine with reference to the prevailing market rate(s) from the date(s) of default up to the date(s) of actual payment, such interest to be payable on the last day of each calendar month or such other date(s) as determined by Eternal Pearl or forthwith upon any demand being made by Eternal Pearl. The aforesaid interest rate may be changed by Eternal Pearl in its absolute discretion, at any time and from time to time and without notice to and without consent from Client or any third party. If any interest rate calculated under this clause would exceed the maximum lawful rate under the Money Lenders Ordinance (Chapter 163 of Laws of Hong Kong), then the maximum lawful interest rate under that Money Lenders Ordinance shall be applied instead. Client agrees that Eternal Pearl shall be entitled (but not obliged), at any time and from time to time, without prior notice, to debit any Account with Eternal Pearl with any interest due and payable by Client in accordance with this Clause 15.10 and Client undertakes to, immediately upon demand by Eternal Pearl, do such act(s) and/or execute such document(s) as may be required by Eternal Pearl at any time and from time to time in order to give full effect to each such debit.
16. DEFAULT 违约事项
16.1 Further to Clause 2, Eternal Pearl shall be entitled to exercise their powers under Clause 16.2 upon or at any time after the occurrence of any of the following Events of Default:
16.1.1 Non-payment: Client defaults in paying, further securing or satisfying on demand any monies or liabilities under this Agreement or any agreement between Client and Eternal Pearl;
16.1.2 Breach of representation: any statement, representation, warranty or undertaking made, repeated or deemed to have been repeated by Client in this Agreement or in any notice or other document delivered to Eternal Pearl in connection with this Agreement that is or proves to have been incorrect or misleading when made, repeated or deemed to have been repeated;
16.1.3 Breach of other obligations: Client fails to perform or comply with any of its other obligations under this Agreement or any agreement between Client and Eternal Pearl and, if that failure is capable of remedy, does not remedy such failure to the satisfaction of Eternal Pearl immediately following receipt of notice from Eternal Pearl requiring it to do so;
16.1.4 Winding-up, etc.: where Client is a corporation:
184.108.40.206 a petition is presented or an order is made or any effective resolution is passed or analogous proceedings are taken for the winding up of Client save for the purposes of an amalgamation, merger or reconstruction the terms whereof have previously been approved in writing by Eternal Pearl; or
220.127.116.11 Client convenes a meeting for the purpose of making, or proposes and/or enters into, any arrangement or composition for the benefit of its creditors; or
18.104.22.168 an encumbrancer takes possession or a Receiver or other similar officer is appointed of the whole or any part of the assets or the undertaking of Client, or a distress or execution is levied or enforced upon or sued out against any of the chattels or property of Client and is not discharged within thirty (30) days of being levied; or
22.214.171.124 Client, without the consent in writing of Eternal Pearl, stops payment to creditors generally or (if applicable) Client (otherwise than for the purpose of such an amalgamation, merger or reconstruction as is referred to in Clause 126.96.36.199 above) ceases or threatens to cease to carry on its business or any substantial part thereof or be deemed, for the purposes of Section 178 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Chapter 32 of the Laws of Hong Kong), to be unable to pay its debts or disposes or threatens to dispose of the whole or a substantial part of its undertaking or assets;
16.1.5 Bankruptcy, etc.: Bankruptcy proceedings are commenced in respect of Client where Client is an individual, or a bankruptcy order is made against Client or Client makes any composition or arrangement with Client’s creditors, dies, becomes of unsound mind and/ or insane;
16.1.6 Material adverse change in Client’s financial condition, etc.: there occurs a material adverse change in Client’s business, assets or financial condition which would, in the opinion of Eternal Pearl, prevent or hinder or tend to prevent or hinder Client from performing in any material respect its obligations;
16.1.7 Judgment or court order: where Client is a partnership or a sole proprietorship, any of its partners or the sole proprietor shall have any judgment or order of Court made or any execution levied against his goods chattels or property, dies, becomes of unsound mind and/or insane;
16.1.8 Incompetence, etc: where the Client is an individual, a sole proprietor or a partnership, a judicial declaration of incompetence or mental incapacity is made in respect of the Client or any of the partners, or the Client or any of the partners dies;
16.1.9 Unlawfulness: where Eternal Pearl in its sole opinion believes there may be a basis for suspicion that the Client has engaged or may be engaging in any market malpractice or any other activity which is prohibited by any Laws or Regulations or applicable terms and conditions of whatsoever nature; or it shall become unlawful for the Client to maintain the Account or to perform any of the Client’s obligations under this Agreement; or any authorisation, consent, approval or licence necessary for the Client to continue the Account or to perform any of its obligation under this Agreement is withdrawn, restricted, revoked or otherwise ceases to be in full force and effect;
16.1.10 Fraud, etc: Client is convicted of an offence involving fraud, deception or dishonesty or any other serious criminal offence (other than a road traffic offence where a non-custodial sentence is imposed);
16.1.11 Regulatory requirements: in the discretion of Eternal Pearl, the exercise by Eternal Pearl of any powers conferred by Clause 16.2 is necessary for compliance with any Regulations;
16.1.12 Suspension of the Account: the Account or the trading of any securities or instruments in the Account is for whatsoever reason suspended;
16.1.13 Illiquidity: in the absolute opinion of Eternal Pearl, there occurs market conditions (for example, illiquidity) or actions that may make it difficult or impossible to effect the relevant transactions or liquidate or offset the relevant positions; and
16.1.14 Others: in the sole discretion of Eternal Pearl, when it regards it to be otherwise necessary or appropriate e.g. due to margin requirements or otherwise.
16.2 Upon or at any time after the occurrence of any of the Event of Default, all amounts owing by the Client to Eternal Pearl shall become immediately payable on demand and Eternal Pearl, without notice to the Client, may do any of the following in its discretion:-
16.2.1 terminate all or any part of this Agreement and close the Account, or otherwise suspend operation of the Account;
16.2.2 immediately require Client to repay or discharge the Facility, if any;
16.2.3 cancel any or all outstanding orders or any other commitments made on behalf of the Client;
16.2.4 close any or all contracts between Eternal Pearl and the Client, cover any short position of Client through the purchase of securities on the relevant Exchange(s) or, liquidate any long position of the Client through the sale of securities on the relevant Exchange(s);
16.2.5sell or otherwise dispose of the securities held for the Client to settle any liability owed by the Client to Eternal Pearl which remains after Eternal Pearl has disposed of all client collateral for securing the settlement of that liability; and
16.2.6 combine or consolidate any or all accounts of the Client and exercise right of set-off in accordance with this Agreement.
16.3 In the event of any sale pursuant to Clause 16.2.5:
16.3.1 Eternal Pearl shall not be responsible for any loss occasioned thereby howsoever arising if Eternal Pearl has already used reasonable endeavours to sell or dispose of the securities or any part thereof at the then available market price;
16.3.2 Eternal Pearl shall be entitled to appropriate to itself or sell or dispose of the securities or any part thereof at the current price to Eternal Pearl without being in any way responsible for loss occasioned thereby howsoever arising and without being accountable for any profit made by Eternal Pearl; and
16.3.3 the Client undertakes to pay to Eternal Pearl any deficiency if the net proceeds of sale shall be insufficient to cover all the outstanding balances owing by Client to Eternal Pearl.
16.4 Any proceeds of sale hereunder shall be applied in the following order of priority:
16.4.1 in satisfaction of all costs, levies, charges, expenses and payments (including, without limitation, legal or other professional fees, stamp duty, commission and brokerage) incurred by Eternal Pearl on a full indemnity basis;
16.4.2 in or towards the satisfaction of the amount secured by this Agreement whether principal or interest or otherwise in such order as Eternal Pearl may in its discretion decide;
16.4.3 in or towards the satisfaction of any other amount owing to Eternal Pearl, and the surplus if any shall be paid to Client or to its order, and if there is any deficiency after the sale, Client shall pay such deficiency to Eternal Pearl without the need for any demand.
16.5 Any dividends, interest or other payments which may be received or receivable by Eternal Pearl in respect of the Margin Securities (as defined in the First Schedule) (less such reasonable charges as Eternal Pearl may determine from time to time) may be applied by Eternal Pearl as though they were proceeds of sale hereunder notwithstanding that the power of sale may not have arisen.
16.6 A declaration, determination or decision by an officer of Eternal Pearl that the power of sale has become exercisable under this Clause 16 shall be conclusive evidence of that fact in favour of any purchaser or other person deriving title under the sale.
17. LIABILITY AND INDEMNITY责任与弥偿
17.1 Client agrees that Eternal Pearl or any of its officers, employees or agents shall not have any liability whatsoever (other than those resulting from fraud, wilful default or a breach of Clause 3 on Eternal Pearl’s part) for any loss, expense or damage which Client may incur as a result of the performance or failure to perform this Agreement or as a result of any act or omission of any third party (whether or not such third party being appointed by Eternal Pearl) or howsoever arising out of any cause beyond the control of Eternal Pearl. Further, Eternal Pearl or any of its officers, employees or agents shall accept no liability as a result of compliance with any applicable Regulations.
17.2 Client undertakes to indemnify and to keep indemnified Eternal Pearl and its officers, employees and agents on a full indemnity basis from and against all losses, damages, interest costs, actions, demands, claims, proceedings, expenses, costs (including, without limitation, legal costs and costs reasonably incurred in collecting debts from Client) and liabilities of whatsoever nature (other than those resulting from fraud or wilful default on Eternal Pearl’s part) incurred, suffered or sustained by or made or brought against or threatened to be made or brought against each or any of them directly or indirectly arising out of or in connection with the performance of any act or the exercise of any right or discretion or any inaction taken or chosen by or for Eternal Pearl and/or any member of the Group pursuant to this Agreement, or arising directly or indirectly from any act or omission by Client whether or not constituting a breach of any of its obligations under this Agreement or the occurrence of any Event of Default or directly or indirectly as a consequence of reliance on by Eternal Pearl or any of its officers, employees or agents any representation stated in this Agreement or any information provided by or for Client or directly or indirectly as a result of acting on by Eternal Pearl or any of its officers, employees or agents any instruction, signature, instrument, notice, resolution, request, certificate, report or other document believed to be signed or given by the proper party(ies), whether the same is given verbally or in written form and whether the same is an original, facsimiled or electronic copy.
17.3 If any claim is made against Eternal Pearl or Client in connection with this Agreement, Eternal Pearl may, without prejudice to Clause 17.1 above, take any such steps at its sole discretion, including the withholding of payment or delivery to Client of any money or securities.
17.4 Client acknowledges that handling of Client’s Account(s) by any person or party other than the Client shall be properly documented as prescribed by Eternal Pearl from time to time (for example, in relation to giving of trading instructions, by completion of the relevant prescribed form applicable to Authorised Person or Authorised Third Party, as the case may be). Discretionary handling of clients’ accounts by Eternal Pearl’s representatives is generally not permitted by Eternal Pearl policy (and that if exception is granted it shall be properly documented in a further Eternal Pearl discretionary account agreement with a power of attorney). Client covenants not to hold Eternal Pearl responsible in any way, and shall indemnify Eternal Pearl, for all and any loss, damage, interest, cost, action, demand, claim, liability, expense or proceeding of any nature whatsoever relating to or resulting from the Client’s instruction, permission, acquiescence or approval to, or arrangement or understanding with, any Eternal Pearl representative or any person or party other than the Client (whether explicit or tacit) to conduct discretionary trading on the Account or other handling in respect of the Client’s Account(s) or Client’s money.
18. DISCLOSURE OF INFORMATION资料披露
18.1 Client warrants and undertakes to Eternal Pearl that all information provided by Client from time to time in, under or pursuant to this Agreement is and will be accurate, complete and up-to-date. Client shall notify Eternal Pearl forthwith of any change to such information. Eternal Pearl shall be entitled to rely fully on all such information for all purposes until Eternal Pearl is notified to the contrary in writing and any such written notification shall be duly signed by Client. Client understands and accepts that notwithstanding anything to the contrary which may be contained in this Agreement, any change to any such information shall not take effect until such time as prescribed by Eternal Pearl at is sole and absolute discretion, and in case where no time limit is prescribed by Eternal Pearl, then the relevant appointment shall take effect five (5) days after the actual receipt by Eternal Pearl of the relevant written notification or until such shorter period of time as may be agreed by Eternal Pearl in writing.
18.2 Eternal Pearl shall notify Client of any material change to the information relating to Eternal Pearl provided in, under or pursuant to this Agreement.
18.3 Client shall immediately on demand by Eternal Pearl at any time and from time to time supply to Eternal Pearl such financial and/or other information in connection with the subject matter of this Agreement, Client and/or the compliance of any Laws or Regulations as Eternal Pearl may reasonably require. Client agrees that Eternal Pearl may conduct credit enquiries or check on Client for the purpose of ascertaining the financial and/or compliance situation of Client.
18.4 Eternal Pearl may provide any information supplied by or relating to Client and/or any transaction and/or the Account to any Regulator or other person to comply with the lawful requirements or requests for information (whether such requirements and requests are mandatory or otherwise) or otherwise where in Eternal Pearl’s sole discretion, it deems appropriate in the circumstances. Without limiting the foregoing, relevant information may be disclosed if there is reasonable ground for Eternal Pearl to suspect that any Client may have committed a material breach or infringement of, or may not have complied with, any market misconduct provisions in Part XIII or XIV of the SFO.
18.5 Further to Clause 2.5, Eternal Pearl is subject to the Personal Data (Privacy) Ordinance which regulates the use of personal data concerning individuals. Eternal Pearl’s policies and practices relating to the use of personal data are set out in the Fifth Schedule to this Agreement.
18.6 Client represents and warrants to Eternal Pearl that Client has taken all action necessary to authorise the disclosure to Eternal Pearl and other persons permitted hereunder of all information (including, without limitation, personal data as defined in the Personal Data (Privacy) Ordinance) from time to time provided to Eternal Pearl by or for Client in, under or pursuant to this Agreement and the use of such information for the purpose of this Agreement and/or any transaction(s) contemplated hereunder and/or the Account. This representation and warranty are taken to be also made by Client on each date that any information is provided to Eternal Pearl.
18.7 Notwithstanding other provisions in relation to the disclosure of information and tax-related arrangement under this Agreement, the Client hereby agrees to comply with the provisions contained in the Seventh Schedule. The powers, rights, discretions of Eternal Pearl under the Seventh Schedule shall be without prejudice and in addition to the provisions in this Clause 18.
19. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS声明、陈述、保证及承诺
19.1 Client represents, warrants and undertakes to Eternal Pearl (in this Clause 19, referred to as the “Warranties”) that:
19.1.1 where Client is a corporation, it has been duly incorporated or established in accordance with all applicable laws and regulations and has the corporate power to enter into and perform this Agreement and has taken all necessary corporate and other action to authorise this Agreement upon these terms and conditions;
19.1.2 no consent or authority of any person (except, in the case of a corporate client, as already obtained as contemplated in Clause 19.1.1) is required for Client to enter into this Agreement including without limitation the power of borrowing and giving security over its assets, or as the case may be, Client has obtained all such necessary consent or authority (including without limitation, consent from its employer where applicable);
19.1.3 the entering into by Client of this Agreement or any trading or borrowing activity in connection with this Agreement will not place Client in breach of the terms of any other arrangement or document (including any constitutional documents such as Client’s memorandum and articles of association if Client is a corporation and/or deed of trust if Client is a trustee or trust corporation), any staff dealing policies or rules of its employer (if any) or of any obligations under general law or imposed by Regulations; and Client undertakes to fully comply all relevant Laws, Regulations, terms, policies and rules;
19.1.4 Client has not taken any action nor has any step been taken or legal proceeding been started or threatened for the bankruptcy or liquidation of the Client. Nor has the Client entered into a compromise or scheme of arrangement with its creditors; and
19.1.5 Client acknowledges that it is Client’s duty to ascertain Client’s nationality, citizenship, domicile or similar status. Client undertakes not to deal in, purchase or subscribe for any securities or investments which by virtue of the Client’s status or other characteristics Client is prohibited to deal in, purchase or subscribe. Client has taken all necessary professional advice including legal, accounting, estate planning or tax advice relating to its tax or other liability under any jurisdiction and Client has not relied in any way on Eternal Pearl relating to any of Client’s instructions or orders in respect of dealing in, purchase of or subscription in any securities or investments.
19.2 Client further warrants and represents to Eternal Pearl that each of the Warranties is true, accurate and not misleading.
19.3 Client acknowledges that Eternal Pearl has entered into this Agreement on the basis of, and in reliance on, the Warranties. The Warranties are deemed to be repeated on each day up to and including the termination of this Agreement.
20. NOMINEE ARRANGEMENTS代名人安排
20.1 If any of Client’s securities are registered in the name of a nominee for Client (“Nominee”), whether or not such Nominee is a member of the Group, Client agrees as follows.
20.1.1 the Nominee shall have no liability (in negligence or otherwise howsoever) for failure to forward to Client any notice, information or other communication in respect of any such securities;
20.1.2 the Nominee shall have full liberty to exercise or refrain from exercising any rights or to satisfy or refrain from satisfying any liabilities arising from or in connection with the holding of any such securities without the need to consult or notify Client beforehand and without being in any way liable therefor and Client shall indemnify the Nominee for all losses, costs, claims, liabilities and expenses incurred by the Nominee and arising directly or indirectly from any action taken or not taken by the Nominee in good faith;
20.1.3 to pay such fees, expenses and charges as the Nominee may from time to time prescribe in consideration of the nominee services, such fees, expenses and charges to be deducted as Eternal Pearl sees fit from any monies standing to Client’s credit in any account with Eternal Pearl and/or any member of the Group and until payment the securities held by the Nominee are subject to a lien in favour of the Nominee for the amount(s) concerned and such lien shall be in addition and without prejudice to other rights of the Nominee;
20.1.4 the Nominee may act on the instructions of any one Authorised Person or Authorised Third Party; and
20.1.5 the Nominee is not bound to return to Client securities bearing identical serial numbers as any transferred to the Nominee.
21.1 Governing Law适用法律
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and Client hereby irrevocably submits to the non-exclusive jurisdiction of the courts of Hong Kong. This Agreement, all rights, obligations and liabilities under this Agreement and all transactions contemplated hereunder shall enure to the benefit of, and bind Eternal Pearl, Eternal Pearl’s successors and assigns, whether by merger, consolidation or otherwise, as well as Client and the heirs, executors, administrators, legatees, successors, personal representatives and permitted assigns of Client.
If any provision of this Agreement shall be void or unenforceable by reason of any provision of applicable Laws, the remaining provisions shall continue in full force and effect and if necessary, be so amended as shall be necessary to give effect to the spirit of this Agreement so far as possible.
21.3 Eternal Pearl’s Role恒明珠之角色
Save as expressly provided in this Agreement, Eternal Pearl shall act as an agent and not as a principal in relation to any transaction undertaken by Eternal Pearl pursuant to this Agreement, except where Eternal Pearl gives notice to Client to the contrary or required by the nature of the transaction initiated by Client.
21.4 Eternal Pearl’s Right to Report恒明珠之举报权利
Without prejudice to any right or obligation that Eternal Pearl may have under the Laws and further to Clause 2, Client acknowledges that Eternal Pearl shall have the right to report any suspected trading misconduct, other malpractice or irregularity and to disclose relevant information (without prejudice to Clause 18.4) to any Regulators, authorities or the issuer of the financial product concerned, and Eternal Pearl may in its sole discretion suspend the operation of the Account or decline to act on any instruction without incurring any liability whatsoever to Client for any claim, loss, proceeding or expense howsoever related to Eternal Pearl’s suspension of the Account or its delay or refusal to act upon any instruction relating to the Account.
21.5 Client’s Obligations客户之责任
21.5.1 Client undertakes to do and execute any act, deed, document or thing which Eternal Pearl may require in connection with the implementation, execution and enforcement of the terms of this Agreement. Client irrevocably appoints Eternal Pearl as its attorney to do and execute any act, deed, document and thing which it undertakes to do or execute under this Agreement but fails to do or execute upon the request of Eternal Pearl.
21.5.2 If Client suspects that a fraud or an irregularity may have occurred with respect to the Account, it shall notify Eternal Pearl of the same immediately by calling Eternal Pearl’s Anti-Fraud Helpline at (852) 3199 0600 or such other telephone number as subsequently notified to Client by Eternal Pearl in writing from time to time.
若客户怀疑账户可能已出现欺诈或不妥情况,客户须致电恒明珠的怀疑诈骗热线:(852) 3199 0600或嗣后恒明珠以书面不时通知客户之其它电话号码,以便立即通知恒明珠。
21.6 Joint Account联名账户
21.6.1 Where the Account is a joint account, unless otherwise stated in the Account Application, Eternal Pearl may accept instructions from any of the joint account holders, and each joint account holder agrees with the others to be jointly and severally liable for all obligations in connection with this Agreement. Eternal Pearl has no obligation to inquire into the purpose or propriety of any instruction given or to see to the application of any funds delivered by Client or any or more of the joint account holders in respect of the Account. Eternal Pearl shall be at liberty to release or discharge any of the joint account holders from his/her liability hereunder or to accept any proposition from or make other arrangements with any of the joint account holders without releasing or discharging the obligations of the other or others from or otherwise prejudicing or affecting the rights and remedies of Eternal Pearl against the other or others and none of the joint account holders nor shall this Agreement be released or discharged by the death of any one of them.
21.6.2 Any Advice, report, notice or communication given to any joint account holder in accordance with this Agreement shall be deemed to have been duly given to all joint account holders unless: (i) Client’s correspondence address has been provided in the Account Application, in which case, any such Advice, report, notice or communication shall be sent to that correspondence address or such other correspondence address as subsequently notified to Eternal Pearl in accordance with this Agreement; or (ii) Client has requested and Eternal Pearl has accepted that all Advice shall be sent to the email addresses of all joint account holders, being the last notified email addresses on Eternal Pearl’s records and in such case, all Advice shall be so given. Any Advice, report, notice or communication given by Eternal Pearl pursuant to the foregoing shall be deemed to have been received by all joint account holders and shall be binding on all of them.
21.6.3 The joint account holders each acknowledge and agree that if any one of them should die,
188.8.131.52 the surviving joint account holder(s) should immediately notify Eternal Pearl in writing of the death;
184.108.40.206 Eternal Pearl is to pay or deliver to or to the order of the surviving joint account holder(s) any moneys, investments, property, instruments and/or documents standing to the credit of or held for the Account, without prejudice to any right Eternal Pearl may have in respect of the same arising out of any set-off, counterclaim, lien, charge, pledge or otherwise whatsoever or to any step which Eternal Pearl may deem it desirable to take in view of any third party claims thereto and/or for protecting the interest of Eternal Pearl and/or other member(s) of the Group and Eternal Pearl shall be entitled to require the surviving joint account holder(s) to give and/or sign such document(s) as prescribed by Eternal Pearl before releasing any money, investment, property, instrument or document to or to the order of such survivor(s); and
220.127.116.11 Eternal Pearl shall not in any circumstances be liable in any way for any claim, loss, damages, liability, cost, expenses or whatsoever suffered or incurred by any person or entity (including, without limitation, the surviving joint account holder(s)), directly or indirectly, arising from or in connection with any action or inaction taken or chosen by Eternal Pearl pursuant to Clause 18.104.22.168 or any breach of this Clause 21.6.3 by any of the joint account holders; and the joint account holders each agree to indemnify Eternal Pearl against all claims, losses, damages, liabilities, costs, expenses and whatsoever suffered or incurred by Eternal Pearl, directly or indirectly, arising from or in connection with any action or inaction taken or chosen by Eternal Pearl pursuant to Clause 22.214.171.124 or any breach of this Clause 21.6.3 by any of the joint account holders.
21.7 Client’s Authorisation客户授权
Where Client has an account with another brokerage house being licensed by the SFC to carry out and conduct Regulated Activity Type 1 under and pursuant to the SFO, and Client and instructs Eternal Pearl to obtain cash, securities and/or other property from such account as opened and maintained by Client with the other brokerage house, Client irrevocably and irreversibly authorises Eternal Pearl, on behalf of Client, to request the other brokerage house to release such cash, securities and/or other property to Eternal Pearl.
凡客户在另一获证监会批准从事证券及期货条例项下受规管活动第一类 (证券买卖) 的证券商设有账户,并指令恒明珠从该账户提取现金、证券及/或其它财产,客户现不可撤销及不可反悔地授权恒明珠可代其要求该证券商发放上述现金、证券及/或其它财产予恒明珠。
21.8 Telephone Recording电话记录
Eternal Pearl may record telephone conversations with Client and the contents of any such recording shall be final and conclusive evidence of the conversation concerned and its content. Client irrevocably and irreversibly confirms his/her agreement and consent for Eternal Pearl to carry out and conduct such recording with or without any notice whatsoever to Client.
21.9 Client’s Declaration and Representation客户声明、陈述
Client acknowledges that Eternal Pearl has offered to explain to Client the terms of this Agreement, and either Client has received such explanation or that Client fully understands the terms of this Agreement without the need for such explanation. Client acknowledges that Client has been advised, and has had the opportunity, to consult Client’s own independent legal and other professional advisers.
Save as expressly provided in this Agreement, no failure to exercise, or delay in exercising, on the part of any party hereto any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No waiver by Eternal Pearl shall be effective unless it is in writing. The rights and remedies of Eternal Pearl are cumulative and not exclusive of any rights or remedies provided by the Laws.
21.11.1 Client shall not assign, delegate, sub-contract, transfer or otherwise dispose of any rights or obligations under this Agreement to any person without Eternal Pearl’s previous written consent. Subject to the Laws, Eternal Pearl may assign, sub-contract, delegate, transfer or otherwise dispose of any of its rights and obligations under this Agreement as Eternal Pearl may see fit by giving Client at least ten (10) days’ notice.
21.11.2 In the event that Eternal Pearl consolidates, amalgamates with, reorganises or transfers its business to another entity, Eternal Pearl may assign any of the rights and obligations under this Agreement to such entity. Eternal Pearl shall give Client not less than ten (10) days’ notice which will specify a date upon which the assignment shall become effective, which date shall be at least ten (10) days after the date of the notice. Such consolidation, amalgation, reorganisation, transfer of business or assignment of tights and obligations under this Agreement shall have the effect of creating a novated agreement between Client and the entity to which Eternal Pearl shall assign such rights and obligations. Therefore, in such event, Client hereby irrevocably and irreversibly consents for any or any future consolidation, amalgation, recorganisation, transfer of business ort assignment of rights and obligations under this Agreement by Eternal Pearl.
21.12 Force Majeure不可抗力
In the event of war, terrorism, revolution, insurrection, restraint of rulers, military disturbances, riot, civil commotion, civil disobedience or other similar action involving any country, strike or lockout or stoppage or restraint of labour, seizure or confiscation of assets or other governmental action having a similar effect, any imposition of currency exchange control or restraint of capital movement or transmission by any government, any “Act of God”, epidemic, pandemic, vandalism, disruption of the operation of any Exchange, breakdown of computer systems and/or communication facilities, or any other similar event outside the control of Eternal Pearl which hinders or prevents the performance by Eternal Pearl of its obligations under this Agreement (an “event of force majeure”), then Eternal Pearl may, as an alternative to any performance otherwise required, at its absolute discretion either (a) postpone its performance until the event of force majeure no longer has such effect or (b) where any delivery or payment is required, provide or require a cash settlement based upon the prevailing price of a security or instrument relevant to such settlement on the second business day prior to the occurrence of the event of force majeure; such prevailing price being conclusively determined by Eternal Pearl. Eternal Pearl shall not be responsible or held liable for any loss suffered by Client arising out of or in connection with an event of force majeure. Client agrees to bear solely the risk of such event of force majeure.
一旦战争、恐怖主义活动、革命事件、暴动、统治者之管制、军事骚动、暴乱、内乱或其它涉及任何国家的类同行动、罢工或停工或拒绝工作或劳工管制、财产被扣押或充公或其它有类同影响的政府行动、政府管制货币兑换或政府管制资金流动或转移、任何天灾、流行性传染病、全国流行性传染病、恶意破坏行为、任何交易所之营运遭受扰乱、计算机系统及/或通讯设施故障、或任何其它类同事件发生,而非恒明珠所能控制之范围内,导致恒明珠在履行本协议下其责任时受制肘或阻碍 (「不可抗力事件」) ，那时，恒明珠可作为履行其责任之其它选择 绝对酌情权决定: (a) 延迟其履行责任直至该不可抗力事件失却影响力；或 (b) 倘若须有任何交付或支付，提供或要求现金结算而该结算乃根据发生不可抗力事件前之第二个营业日当日之有关该结算之证券或金融工具的现行市价(该现行市价由恒明珠终论地决定)。恒明珠不会负责客户任何因或关于发生不可抗力事件而招致之损失。客户同意独自承担不可抗力事件之风险。
21.13.1 Any Advice, report, notice or communication to be made or given to Client shall be in writing and may be sent by ordinary post to its address stated in the Account Application, or by facsimile transmission or electronic means (including through the E-Service, as defined in Sixth Schedule) to the fax number or e-mail address stated in the Account Application (or to such other address, fax number, or e-mail address as subsequently notified by Client in writing in accordance with this Clause 21.13). Any notification so given shall be deemed to have been received forty-eight (48) hours after dispatch if sent by post or at the time of transmission if given by facsimile or electronic means.
21.13.2 Eternal Pearl may also give notice to Client by telephone on the telephone number given in the Account Application or on such other number as Client shall notify Eternal Pearl in writing. All notifications so given to Client shall be deemed to have been received instantaneously if given by telephone.
21.13.3 In all cases if any notice or communication of whatsoever nature is given or delivered to Eternal Pearl, it shall only be deemed to have been given or delivered to Eternal Pearl on the day of actual receipt by it.
21.14 Amendment and Termination修订与终止
21.14.1 Eternal Pearl may, at its absolute discretion and without giving reasons, suspend or terminate the Account and at any time cease to act on Client’s behalf. Upon termination or suspension of the Account, all monies owing from Client to Eternal Pearl shall immediately become due and payable and Client shall immediately repay such monies to Eternal Pearl.
21.14.2 Client agrees that the terms of this Agreement may be amended by Eternal Pearl from time to time, at its discretion, by notice in writing from Eternal Pearl to Client, in which event such terms and conditions as so amended shall apply with effect from the effective date specified in such notice, whether the specified effective date is before or after the date of such notice but subject to applicable Laws. Such amendments shall be deemed incorporated into and form part of this Agreement.
21.14.3 Either party may terminate this Agreement at any time by notice to the other provided that such termination shall not affect:
126.96.36.199 the rights or liabilities of either party arising prior to such termination;
188.8.131.52 the warranties, representations, undertakings and indemnities given by Client under this Agreement, all of which shall survive termination; and
184.108.40.206 any of the Client’s obligations to Eternal Pearl under and/or pursuant to this Agreement.
21.14.4 Termination of this Agreement shall not affect any action by Eternal Pearl, or any of its agents or any third party permitted under this Agreement initiated prior to the date of termination or any indemnity or warranty given by Client under this Agreement.
Time shall, in all respects, be of the essence of the performance of all the obligations of Client under this Agreement and all transactions contemplated hereunder.
21.16 Undertakings by Intermediary中介人承诺 若
Further to Clause 2, in case Client is an intermediary specified in Section 18(3) (excluding section 18(3)(b)) under Part 2, Division 4 of Schedule 2 of the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (“Specified Intermediary”) and operates and manages the Account for its own client(s) (whether on a discretionary or non-discretionary basis) or otherwise for the transaction(s) with its own client(s), Client agrees to the following terms:
21.16.1 Client confirms that it is a Specified Intermediary;
21.16.2 In respect of each of its own client(s) for whom or for whose transaction(s) the Account is operated and managed, Client consents to be Eternal Pearl’s intermediary to carry out for Eternal Pearl the customer due diligence (“CDD”) measure(s) as stated in the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (“AMLO”) and applicable regulatory requirements issued by the SFC from time to time and unless otherwise agreed by Eternal Pearl in writing, Client shall carry out all the aforesaid CDD measures for Eternal Pearl;
21.16.3 Client shall on request provide to Eternal Pearl a copy of any document, or a record of any data or information, obtained by Client in the course of carrying out the aforesaid CDD measure(s) for Eternal Pearl without delay;
21.16.4 In relation to each transaction it carries out for the Account, Client shall, if requested by Eternal Pearl within a period of six (6) years (beginning on the date on which the transaction is completed, regardless of whether any relevant Business Relationship (defined in section 1(1) under Part 1 of Schedule 2 of the AMLO) ends during that period) or such longer period of time as imposed by the SFC and notified by Eternal Pearl to Client from time to time, provide to Eternal Pearl a copy of any document, or a record of any data or information obtained by Client in the course of carrying out the aforesaid CDD measure(s) for Eternal Pearl as soon as reasonably practicable after receiving the request;
21.16.5 In relation to each of its own client(s) for whom or for whose transaction(s) the Account is operated and managed by Client, Client shall, if requested by Eternal Pearl (i) during the continuance of the Business Relationship with the client or within a period of six (6) years beginning on the date on which the relevant Business Relationship ends; or (ii) within such longer period of time as imposed by the SFC and notified by Eternal Pearl to Client from time to time, provide to Eternal Pearl a copy of any document, or a record of any data or information, obtained by Client in the course of carrying out the aforesaid CDD measure(s) for Eternal Pearl as soon as reasonably practicable after receiving the request;
21.16.6 In relation to each transaction it carries out for the Account or in relation to each of its own client(s) for whom or for whose transaction(s) the Account is operated and managed by Client, Client shall keep all the documents, records, data and information referred to in the above paragraphs of this Clause 21.16 for so long as the Business Relationship(s) with any relevant client(s) remain(s) subsisting (regardless of whether the Business Relationship(s) with any other relevant client(s) has/have already ended) and for a period of six (6) years beginning on the date on which the relevant Business Relationship or the last relevant Business Relationship (if more than one client) ends. If a longer period of time is imposed by the SFC, all such documents, records, data and information shall be kept by Client for such longer period of time as notified by Eternal Pearl to Client from time to time and Client shall keep all such documents, records, data and information in accordance with the AMLO;
21.16.7 If Client is about to cease trading or does not wish to continue to act as Eternal Pearl’s intermediary to carry out the aforesaid CDD measure(s) for Eternal Pearl, Client shall give Eternal Pearl sixty (60) days’ written notice in advance and shall provide to Eternal Pearl all the documents, records, data and information referred to in the above paragraphs of this Clause 21.16 without delay;
21.16.8 If Eternal Pearl terminates its appointment of Client as its intermediary to carry out the aforesaid CDD measures(s) for Eternal Pearl in respect of any client(s) of Client, Client shall immediately provide to Eternal Pearl all the documents, records, data and information referred to in the above paragraphs of this Clause 21.16 and in respect of such client(s);
21.16.9 If there is any legal or regulatory requirement (other than those stated in the AMLO or issued by the SFC) in respect of the aforesaid CDD measure(s) carried out by Client for Eternal Pearl and/or any documents, records, data and/or information referred to in the above paragraphs of this Clause 21.16 and/or the keeping of the same, Client shall also comply with such legal or regulatory requirement;
21.16.10 To the extent that any provisions of the AMLO, or of the regulatory requirements issued by the SFC from to time to time, in respect of the aforesaid CDD measure(s) carried out by Client for Eternal Pearl and/or any documents, records, data and/or information referred to in the above paragraphs of this Clause 21.16 and/or the keeping of any such documents, records, data and/or information are not expressly incorporated in this Agreement, the same shall be incorporated by reference in this Agreement. The provisions of the AMLO, and of the regulatory requirements issued by the SFC from to time to time, in respect of the aforesaid CDD measure(s) carried out by Client for Eternal Pearl and/or any documents, records, data and/or information referred to in the above paragraphs of this Clause 21.16 and/or the keeping of any such documents, records, data and/or information shall prevail over the provisions of this Clause 21.16. Notwithstanding anything in this Agreement or any other document, Client shall comply with all legal and regulatory requirements (as amended from time to time) in respect of the aforesaid CDD measure(s) carried out for Eternal Pearl (including, without limitation, the relevant record-keeping requirements); however, nothing in the foregoing shall, in any way, affect any obligation of Eternal Pearl stated in section 18(2) under Part 2, Division 4 of Schedule 2 of the AMLO; and
21.16.11 In this Clause 21.16, (i) words not defined shall have the meanings ascribed to them in the AMLO or applicable regulatory requirements issued by the SFC from time to time unless the context requires otherwise; and (ii) regulatory requirements issued by the SFC from time to time include, without limitation, the requirements contained in the Guideline on Anti-Money Laundering and Counter-Terrorist Financing.
21.17 Further Undertakings额外承诺
Without prejudice to Clause 21.16 above, Eternal Pearl may take or omit to take any action which it, in its sole and absolute discretion, considers appropriate to take (a “Compliance Action”) for the purpose of complying with the Applicable Laws and Compliance Rules, including preventing money laundering, terrorist financing or other crimes or the provision of financial and other services to any persons or entities which may be subject to sanctions (each such person or entity is referred to as a “Sanctioned Party”). Such Compliance Action may include without limitation:
(a) declining the application or refusing to handle or process, or refusing to effect payment in connection with, any transaction contemplated in this Agreement on the ground of, or as a result of, a Compliance Action or if any person or entity relating to any related underlying transaction is a Sanctioned Party;
(b) (if Eternal Pearl becomes aware that any payment made to or at the request of Client contravenes the Compliance Rules) immediately recouping such payment from Client, irrespective of any other contrary agreement with Client;
(c) the interception and investigation of any payment messages and other information or communications sent to or by Client or on Client’s behalf via the systems of Eternal Pearl; and
(d) making further enquiries as to whether a name which might refer to a Sanctioned Party actually refers to that party
Eternal Pearl will not be liable for any loss (whether direct, indirect or consequential loss, including without limitation loss of profit or interest) or any damage suffered by Client or any party arising out of:
(i) any delay or failure by Eternal Pearl in processing any payment messages or other information or communication or any request from Client, or in performing any of its duties or other obligations in connection with any transaction, caused in whole or in part by any Compliance Action; or
(ii) the exercise of any of Eternal Pearl’s rights under or any action taken or omission made by Eternal Pearl pursuant to this section.
In this section: 在本节中︰
“Applicable Law” means the legal requirements of any place or any jurisdiction that Eternal Pearl operates in or such legal requirements are otherwise applicable on Eternal Pearl; and
“Compliance Rules” means all regulations, sanction regimes, international guidance or procedures or rules of relevant regulatory or industry body that may be applicable to Eternal Pearl.
22. CONTRACTS (RIGHTS OF THIRD PARTIES) ORDINANCE合约(第三者权利)条例
Save for any member of the Group and any of their respective officers, employees or agents (“Qualified Third Parties”), a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) to enforce any term of this Agreement. Notwithstanding anything to the contrary in this Agreement or in the Contracts (Rights of Third Parties) Ordinance:
除任何集团成员和其各自的任何高级管理人员、员工或代理 (「合资格第三者」) 以外，非本协议订约方的任何人士不得享有<合约(第三者权利)条例>(香港法律第623章)下的任何权利，以强制执行本协议的任何条款。尽管本协议或<合约(第三者权利)条例>有任何相反的规定：
(a) the parties to this Agreement may terminate, rescind or agree any variation, waiver or settlement under this Agreement without the consent of any Qualified Third Parties; and
(b) No Qualified Third Party who is not a party to this Agreement may enforce any right under this Clause without first obtaining the prior written consent of the relevant licensed corporation who/which is a contracting party to this Agreement.
FIRST SCHEDULE - MARGIN FINANCING
附件一 - 保证金(孖展)财务安排
1.1 In this First Schedule, unless the context otherwise requires, the following words and expressions have the meanings set out below:
“Facility Letter” means the letter from Eternal Pearl to Client offering the Facility;
“Indebtedness” means any obligation for the payment or repayment of money, whether actual or contingent;
“Liabilities” means the aggregate of:
(A) all present and/or future actual and/or contingent Indebtedness or other liabilities (in whatever currency they may be expressed) of Client to Eternal Pearl (whether incurred solely, severally or jointly with others and whether incurred as principal or surety) including (without limitation) all monies advanced on any current, loan or other account (whether existing or opened at any time after the date hereof), and all pecuniary obligations arising out of currency and other financial transactions; and
(B) any interest accrued in respect of the amounts and liabilities referred to in paragraph (A) above both before demand and from the date of demand to the date of payment, as well after as before judgment (whether any of the same shall have been capitalised or not); and
发出还款要求前和自发出还款要求日至付款日期间，以及作出裁决之前及之后，就上述 (A) 段所提及之款项和负债所引起之任何利息(不论上述任何各项是否已经予以资本化);及
(C) all charges, commissions and legal and other expenses incurred in any manner whatsoever by Eternal Pearl in relation to the said Indebtedness and liabilities or to this Agreement (including without limitation any foreign exchange losses and expenses incurred by Eternal Pearl in enforcing or otherwise attempting to recover any such Indebtedness or liabilities) on a full indemnity basis;
“Margin Account” means an Account which has the benefit of a Facility.
1.2 In the event of any inconsistency between the provisions of this Agreement and this First Schedule, the provisions of this First Schedule shall prevail.
1.3 Terms and expressions defined in this Agreement shall have the same meaning in this First Schedule unless the context otherwise requires. References to clauses in this First Schedule shall refer to clauses contained in this First Schedule, unless the context otherwise requires.
1.4 The terms of the Facility Letter and any authorisation letter given by Client with respect to the Facility shall form part of this First Schedule.
2. MARGIN SECURITIES TRADING ACCOUNT孖展证券交易账户
2.1 In consideration of Eternal Pearl granting to Client the Facility, Client charges to Eternal Pearl, by way of first fixed charge as a continuing security for the payment and satisfaction on demand of the Liabilities, all of Client’s securities which are now or which shall at any time be deposited with, or come into the possession, custody or control of, Eternal Pearl or any member of the Group or any nominee or custodian appointed or agreed by Eternal Pearl, or with any person, to facilitate the provision of the Facility in respect of the Account, which shall include all dividends and other distributions made or payable in respect of such securities, and all securities (and the dividends and other distributions in respect thereof), rights, monies or property of whatever nature accruing to or offered at any time by way of redemption, b onus, preference, options, purchase consideration or otherwise in right or in respect of the aforesaid securities (the “Margin Securities”).
2.2 Client undertakes客户承诺︰
2.2.1 at all times to maintain the level of margin specified in the Facility Letter or any other level of margin determined by Eternal Pearl from time to time (“Margin”), either by paying to Eternal Pearl sufficient monies or by depositing (or procuring the deposit of) sufficient securities with Eternal Pearl; and
2.2.2 forthwith upon demand to pay to Eternal Pearl such sum, in cleared funds, in cash and/or deliver to Eternal Pearl such additional securities as additional or substituted security for the Liabilities;
and, for any avoidance of any doubt, any securities deposited with or delivered to Eternal Pearl under this clause shall form part of the Margin Securities.
2.3 Any monies received by Eternal Pearl from Client may be placed and kept to the credit of an interest bearing suspense account for so long as Eternal Pearl thinks fit without any obligation in the meantime to apply the same or any part thereof in or towards discharge of any Liabilities. Notwithstanding any such payment, in the event of any proceedings in or analogous to bankruptcy, winding-up, liquidation, composition or arrangement, Eternal Pearl may prove for and agree to accept any dividend or composition in respect of the whole or any part of such money and liabilities in the same manner as if this security had not been created.
2.4 Client shall pay to Eternal Pearl on a monthly basis, in respect of the Liabilities, interest at the Normal Interest Rate specified in the Facility Letter but if any Event of Default occurs, the aforesaid Normal Interest Rate may be replaced with the Default Interest Rate specified in the Facility Letter and such replacement shall immediately become effective on the date of the occurrence of such Event of Default unless otherwise agreed in writing by Eternal Pearl.
2.5 Notwithstanding any provisions of this Agreement, Eternal Pearl may from time to time at its discretion, by written notice to Client, stipulate another interest rate, and such other rate shall apply as from the date of the notice or such later date specified in the notice. If any interest rate mentioned in this clause 2.5 or clause 2.4 above in this First Schedule would exceed the maximum lawful rate under the Money Lenders Ordinance, then the maximum lawful interest rate under that Ordinance shall be applied instead. Client agrees that Eternal Pearl shall be entitled (but not be obliged), at any time and from time to time, without prior notice, to debit any Account with Eternal Pearl and/or any other account(s) of Client with other member(s) of the Group with any interest due and payable by Client in accordance with this clause 2. 5 or clause 2.4 above in this First Schedule and Client undertakes to, immediately upon demand by Eternal Pearl, do such act(s) and/or execute such document(s) as may be required by Eternal Pearl at any time and from time to time in order to give full effect to each such debit.
2.6 Eternal Pearl is authorised on Client’s behalf and in Client’s name to:
2.6.1 draw on the Facility or withdraw from any account maintained by Client with Eternal Pearl such sums of money in payment of the purchase price for the securities purchased or purportedly purchased for Client as evidenced by the bought note issued in Client’s name and at the same time deposit into any account maintained by Client with Eternal Pearl the securities so purchased or purportedly purchased with money withdrawn from any such account. In addition, Eternal Pearl may draw on the Facility or withdraw from any account maintained by Client with Eternal Pearl such sums of money in payment of brokerage, fees, disbursements, charges and any other sums owed by Client in connection with the Margin Securities; and
2.6.2 withdraw from any account maintained by Client with Eternal Pearl such securities sold or purportedly sold for Client as evidenced by the sole note issued in Client’s name and at the same time deposit into any account maintained by Client with Eternal Pearl the sums of money representing the net proceeds of sale of the securities so withdrawn and so sold or purportedly sold, or apply the same or any part thereof in or towards discharge of any Liabilities.
3. MARGIN SECURITIES孖展证券
3.1 If Client shall pay to Eternal Pearl the whole of the amount of Liabilities without any deduction, Eternal Pearl shall at any time after such payment has been so made, upon Client’s request and cost, discharge the security created hereby provided always that upon discharge Eternal Pearl shall not be bound to return securities bearing serial numbers identical with those deposited with or transferred to Eternal Pearl so long as the securities returned are of the same class, denomination and nominal amount and rank pari passu with those originally deposited with or transferred to Eternal Pearl (subject always to taking account of such events like any capital reorganisation which may have occurred in the meantime).
3.2 The security conferred on Eternal Pearl is a continuing security and shall not be discharged by any intermediate payment or satisfaction of the whole or any part of the Liabilities, or by the closing of any Client’s accounts with Eternal Pearl (whether subsequently reopened or not and either alone or jointly with others).
3.3 The security hereby conferred on Eternal Pearl is in addition to and without prejudice to any collateral or other securities which Eternal Pearl may now or hereafter hold from or on account of Client nor shall such collateral or other security or any lien to which Eternal Pearl may be otherwise entitled (including any security, charge or lien prior hereto) or the liability of any person or persons not parties hereto for all or any part of the monies and liabilities hereby secured be in any way prejudiced or affected hereby. Eternal Pearl shall have full power at its discretion to deal with, exchange, release, modify or abstain from perfecting or enforcing any such securities or other guarantees or rights which it may now or hereafter have or to give time for payment or any indulgence to any other person or persons without discharging or in any way affecting Client’s liabilities or the security created hereunder. All monies received by Eternal Pearl from Client or any person or persons liable to pay the same may be applied by Eternal Pearl to any account or any transactions to which the same may be applicable.
3.4 Client shall, during the continuance of this security, pay all payments due in respect of any of the Margin Securities but Eternal Pearl may if Eternal Pearl thinks fit, make such payments on Client’s behalf. Any sums so paid by Eternal Pearl shall be repayable forthwith by Client and pending such repayment, shall both carry interest at the applicable rate and be a charge on the Margin Securities.
3.5 In addition and without prejudice to any general liens, rights of set-off or other similar rights to which Eternal Pearl may be entitled under law or this Agreement, all securities, receivables, monies and other property of Client (held by Client either individually or jointly with others) held by or in the possession of Eternal Pearl at any time shall be subject to a general lien in favour of Eternal Pearl as continuing security to offset and discharge all of Client’s obligations, arising from the business of dealing in securities, to Eternal Pearl and any member of its Group.
Client acknowledges and accepts, for avoidance of any doubt, that Eternal Pearl and any Group company may exercise and enforce any of the rights conferred by this Agreement subject to law, in respect of Indebtedness and Liabilities owed by Client as defined under this Schedule.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS声明、陈述、保证及承诺
Client represents, warrants and undertakes to Eternal Pearl that no other person has any interest in the Margin Securities and undertakes not to sell, grant an option over or otherwise deal in any way with or create or allow to subsist a charge, pledge or other encumbrance over the Margin Securities other than pursuant to the terms of this Agreement.
SECOND SCHEDULE - INITIAL PUBLIC OFFERINGS
附件二 - 首次公开发售
1.1 Terms and expressions defined in this Agreement shall have the same meaning in this Second Schedule unless the context otherwise requires. References to clauses in this Second Schedule shall refer to clauses contained in this Second Schedule, unless the context otherwise requires.
1.2 In the event of any inconsistency between the provisions of this Agreement and this Second Schedule, the provisions of this Second Schedule shall prevail.
2. INITIAL PUBLIC OFFERINGS首次公开发售
2.1 Client may request Eternal Pearl to apply on Client’s behalf for securities in a new issue for listing on an Exchange (an “Application”) and the provisions of this Second Schedule shall apply.
2.1.1 Client authorises Eternal Pearl to complete such application form as may be required, and represents and warrants to Eternal Pearl that all representations, warranties, confirmations and undertakings on the part of the applicant contained or incorporated in the application form are true and accurate in respect of Client.
2.1.2 Client agrees to be bound by the terms of the new issue and Client hereby:
220.127.116.11 warrants and undertakes that the Application shall be the only application made for Client’s benefit in respect of the same issue of securities and that Client shall make no other application in that issue;
18.104.22.168 authorises Eternal Pearl to represent and warrant to the Exchange that no other application shall be made or shall be intended to be made by Client or for Client’s benefit;
22.214.171.124 acknowledges that Eternal Pearl will rely on the above warranties, undertakings and authorisations in making the application;
126.96.36.199 acknowledges that Eternal Pearl accepts no responsibility to send Client the listing document which sets out the terms and conditions of the new issue of securities (“Prospectus”). By Client’s application for subscriptions, Client confirms that Client has obtained such Prospectus from elsewhere, have read and understood the terms and conditions, and Client’s application is not in breach of such terms and conditions. Client confirms that Client shall not request subscriptions for new issues of securities unless eligible to do so under the applicable securities legislation; and
188.8.131.52 represents and warrants that he is not a connected person (as such term is defined in the Regulations) of the issuer of securities that are subject of the new issue.
2.1.3 Client may at the same time request Eternal Pearl to provide a loan for the purpose of the Application (the “Loan”), and the following provisions shall apply:
184.108.40.206 Eternal Pearl has the discretion to accept or reject the request for the Loan.
220.127.116.11 Upon acceptance of a request for a Loan, Eternal Pearl shall provide a term sheet or other document(s) (“Term Sheet”) to Client confirming the terms of the Loan as agreed between Client and Eternal Pearl, which shall be conclusive and binding on Client.
18.104.22.168 Prior to the provision of a Loan by Eternal Pearl, Client shall provide to Eternal Pearl a deposit for the Loan, which shall form part of the proceeds for the Application, in the amount and on or before such time as specified in the Term Sheet. Client authorises Eternal Pearl to debit from any of his accounts with Eternal Pearl an amount representing the deposit, provided that Eternal Pearl may, at its discretion, require Client to pay sufficient monies to Eternal Pearl for the deposit.
22.214.171.124 Unless otherwise specified in the Term Sheet 除非合约细则内另有指明，否则︰
(1) the amount of the Loan shall be the total price of the securities applied for in the Application less the amount of deposit provided by Client pursuant to this clause 2.1.3;
(2) Client shall have no right to repay the Loan, in part or in full, prior to the date of repayment specified in the Term Sheet.
126.96.36.199 The rate of interest applicable to the Loan shall be specified in the Term Sheet
188.8.131.52 Where Eternal Pearl receives any refund in respect of an Application, Eternal Pearl shall have the right, at its discretion, to apply the same or any part thereof in or towards the discharge of the Loan including any interest accrued thereon or to return the same or any part thereof to Client, whether before or after the date of repayment specified in the Term Sheet.
184.108.40.206 In consideration of Eternal Pearl granting to Client the Loan, Client charges to Eternal Pearl, by way of fixed charge as a continuing security for the full repayment of the Loan and the accrued interest thereon, all the securities in or for the Account (“Interest in the Account”), which shall include, without limitation, all securities, all dividends and other distributions made or payable in respect of such securities, rights, monies or property of whatever nature accruing to or offered at any time by way of redemption, bonus, preference, options, purchase consideration or otherwise in right or in respect of the aforesaid securities and those securities acquired on behalf of Client by virtue of the Application in respect of which the Loan is provided. Subject to the Laws, Client authorises Eternal Pearl, for so long as the security created hereby continues, at its discretion and without notice to Client, to dispose of such Interest in the Account in settlement of Client’s liability to repay or discharge any financial accommodation provided by Eternal Pearl. Upon full repayment of the Loan and the accrued Interest thereon, Eternal Pearl shall discharge the security created hereby.
220.127.116.11 Eternal Pearl shall have the additional rights set out in the First Schedule as if the Loan is granted under a Facility.
THIRD SCHEDULE - SPECIAL RULES FOR OPTIONS TRADED ON THE STOCK EXCHANGE OF HONG KONG LIMITED
附件三 - 香港联合交易所有限公司有关期权交易之特别规则
1.1 In this Third Schedule, unless the context otherwise requires, the following words and expressions have the meanings set out below:
“SEOCH” means The Stock Options Clearing House Limited;
“Options Account” means an Account in respect of which Client deals in options contracts to which this Third Schedule applies;
Rules” means the Options Trading Rules of the Stock Exchange as amended from time to time;
“Margin” means cash and/or securities and/or other assets as may be agreed from time to time, as security for Client’s obligations to Eternal Pearl under this Third Schedule.
1.2 Without prejudice to Clause 1.3 below, terms and expressions defined in this Agreement shall have the same meaning in this Third Schedule unless the context otherwise requires.
1.3 Words and phrases not defined will have the meanings given to them in the Options Trading Rules and the Options Clearing Rules of SEOCH
1.4 References to clauses in this Third Schedule shall refer to clauses contained in this Third Schedule, unless the context otherwise requires
1.5 In the event of any inconsistency between the provisions of this Agreement and this Third Schedule, the provisions of this Third Schedule shall prevail.
2. SPECIAL RULES FOR OPTIONS TRADED ON THE STOCK EXCHANGE
2.1 This Third Schedule only applies to options contracts made pursuant to Rule 513 of the Options Trading Rules incorporating the terms and conditions applicable to such options contracts as specified by the Eternal Pearl from time to time as set out in the Options Trading Rules, and an Account in respect of which Client deals in such options contracts.
2.2 Eternal Pearl will keep information relating to an Options Account confidential, but may provide any such information to the Stock Exchange, the SFC, HKEx and SEOCH to comply with their respective requirements or requests for information.
2.3 Client confirms that客户确认︰
2.3.1 Client is not employed by any other Options Exchange Participant of the Stock Exchange, and no employee of any other Options Exchange Participant will have a beneficial interest in the Options Account; and
2.3.2 the Options Account is operated solely for Client’s account and benefit, and not for the benefit of any other person; or
2.3.3 Client has disclosed to Eternal Pearl in writing the name(s) of the person(s) for whose benefit the Options Account is being operated; or
2.3.4 Client has requested Eternal Pearl to operate the Options Account as an Omnibus Account, and will immediately notify Eternal Pearl, on request, of the identity of any person(s) ultimately beneficially interested in Client Contracts.
2.4 Laws and Rules 法例及规则︰
2.4.1 All Exchange Traded Options Business shall be effected in accordance with all Regulations applying to Eternal Pearl. These include, without limitation, the Options Trading Rules, the Options Clearing Rules of SEOCH and the rules of CCASS. In particular, SEOCH has authority under the Regulations to make adjustments to the terms of Contracts, and Eternal Pearl shall notify Client of any such adjustments which affect Client Contracts to which Client is a party. All actions taken by Eternal Pearl, by SEOCH or by CCASS in accordance with such Regulations shall be binding on Client.
2.4.2 All the rights and authority of Eternal Pearl or the members of the Group pursuant to this Third Schedule shall be subject to the Regulations but without limitation to any other rights and remedies which Eternal Pearl or any member of the Group may have.
2.4.3 Client agrees that the terms of the Standard Contract for the relevant options series shall apply to each Client Contract between Eternal Pearl and Client in relation to those options series, and that all Client Contracts shall be created, exercised, settled and discharged in accordance with the Regulations.
2.5 Margin 保证金︰
2.5.1 Client agrees to provide Eternal Pearl with Margin, the form of which may be agreed from time to time, as security for Client’s obligations to Eternal Pearl under this Third Schedule. Such Margin shall be paid or delivered as demanded by Eternal Pearl from time to time. The amounts required by way of Margin shall not be less than, but may exceed, the amounts as may be required by the Regulations in respect of Client’s open positions and delivery obligations, and further Margin may be required to reflect changes in market value.
2.5.2 If Eternal Pearl accepts securities by way of Margin, Client will on request provide Eternal Pearl with such authority as Eternal Pearl may require under the Regulations to authorise Eternal Pearl to deliver such securities, directly or through another Options Exchange Participant, to SEOCH as SEOCH Collateral in respect of Exchange Traded Options Business resulting from Client’s instructions to Eternal Pearl. Except as otherwise provided or unless otherwise authorised by Client, Eternal Pearl does not have any further authority from Client to borrow or lend Client’s securities or otherwise part with possession (except to Client or on Client’s instructions) of any of Client’s securities for any other purpose.
2.5.3 If Eternal Pearl has not received SEOCH Collateral due from Client promptly, Eternal Pearl may treat Client as being in default. Eternal Pearl may require Client to maintain SEOCH Collateral with Eternal Pearl in advance of accepting instructions from Client or may impose other requirements for the collection of SEOCH Collateral as Eternal Pearl thinks fit.
2.5.4 Eternal Pearl is authorised to deposit any cash balance in any of Client’s Options Account with any licensed bank which Eternal Pearl considers appropriate. Eternal Pearl shall be entitled to retain any benefit resulting from such deposit.
2.6 Client Default客户违约︰
2.6.1 Without prejudice to Clause 16 of this Agreement, if Client fails to comply with any of its obligations and/or to meet its liabilities under this Third Schedule, including but not limited to failure to provide Margin, and/or in any way commit default of Client’s obligations under the Options Trading Rules, Eternal Pearl may without prior notice to Client:
18.104.22.168 decline to accept further instructions from Client in respect of Exchange Traded Options Business;
22.214.171.124 close out, give-up or exercise some or all of its Client Contracts with Eternal Pearl;
126.96.36.199 enter into Contracts, or into transactions in securities, futures or commodities, in order to settle obligations arising or to hedge the risks to which Eternal Pearl is exposed in relation to Clients failure;
188.8.131.52 dispose of Margin, and apply the proceeds thereof to discharge Client’s liabilities to Eternal Pearl; and/or
184.108.40.206 dispose of any or all securities held for or on behalf of Client in order to set off any of its obligations and to exercise any rights of set off Eternal Pearl may have in relation to Client.
Any proceeds remaining after discharge of all Client’s liabilities to Eternal Pearl shall be paid to Client.
2.6.2 Client agrees to pay interest on all overdue balances (including interest arising after a judgment debt is obtained against Client) at such rates and on such other terms as Eternal Pearl has notified to Client from time to time. Client agrees that Eternal Pearl shall be entitled (but not obliged), at any time and from time to time, without prior notice, to debit the Account with Eternal Pearl and/or any other account(s) of Client with other member(s) of the Group with any interest due and payable by Client in accordance with this clause 2.6.2 and Client undertakes to, immediately upon demand by Eternal Pearl, do such act(s) and/or execute such document(s) as may be required by Eternal Pearl at any time and from time to time in order to give full effect to each such debit.
2.7 Contracts 合约︰
2.7.1 In respect of all Contracts effected on Client’s instructions, Client will pay Eternal Pearl, within the time period notified by Eternal Pearl, the relevant premium, Eternal Pearl’s commission and any other charges, and applicable levies imposed by the Stock Exchange, as have been notified to Client. Eternal Pearl may deduct the relevant premium, commissions, charges and levies from the Options Account.
2.7.2 Eternal Pearl may place limits on the open positions or delivery obligations that Client may have at any time. Client acknowledges that:
220.127.116.11 Eternal Pearl may be required to close out Client Contracts to comply with position limits imposed by the Stock Exchange; and
18.104.22.168 if Eternal Pearl goes into default, the default procedures of the Stock Exchange may result in Client Contracts being closed out, or replaced by Client Contracts between Client and another Options Exchange Participant of the Stock Exchange.
2.7.3 At Client’s request, Eternal Pearl may agree to the Client Contracts between Eternal Pearl and Client being replaced, in accordance with the Regulations, by Client Contracts between Client and another Options Exchange Participant of the Stock Exchange.
2.7.4 On exercise of a Client Contract by or against Client, Client will perform its delivery obligations under the relevant contract, in accordance with the Standard Contract and as Client has been notified by Eternal Pearl.
2.7.5 The Client shall be responsible for notifying the Stock Exchange or other relevant Regulators in the event that Client holds a reportable position (as defined in the Securities and Futures (Contract Limits and Reportable Positions) Rules (Chapter 571Y of the Laws of Hong Kong) or other applicable rules or regulations).
2.7.6 Client acknowledges that, subject to the provisions of the SFO and any other laws, Eternal Pearl may take the opposite position to Client’s order in relation to any exchange traded options contract(s), whether on Eternal Pearl’s own account or for the account of any member of the Group or their respective officers, employees or representatives or other clients of Eternal Pearl or any member of the Group, provided that the trading is executed competitively on or through the facilities of the Stock Exchange in accordance with the rules, regulations and procedures of the Stock Exchange or the facilities of any other commodity, futures or options exchange in accordance with the rules and regulations of such other exchange.
2.7.7 Without prejudice to Clause 16 of this Agreement, when Eternal Pearl exercises any of Eternal Pearl’s rights:
22.214.171.124 under Clauses 2.6.1 or 2.7.2 of this Third Schedule by closing or giving-up all or any positions in Client’s Options Account;
126.96.36.199 under any other clauses in this Third Schedule by closing-out all or any positions or sale or purchase of commodities in any accounts which Eternal Pearl or any member of the Group may carry on Client’s behalf or maintain with Client;
188.8.131.52 such closing or giving-up or closing out or sale or purchase (in this clause 2.7.7 referred to as the “transactions”);
184.108.40.206 may be made on any exchange or market where the transactions are usually transacted; or
220.127.116.11 in such manner as shall be decided by Eternal Pearl.
Client agrees that in respect of the transactions, Eternal Pearl shall not be liable for any resulting loss. Without prejudice to the foregoing, Client shall not make any claim against Eternal Pearl concerning the manner or timing of the transactions. Client understands that in all cases, Eternal Pearl has the right to exercise closing, closing out or giving up without demand or notice. A prior demand or call or notice of such closing, closing out or giving up shall not be considered as a waiver of Eternal Pearl’s above-mentioned rights.
2.8.1 Client acknowledges that, although all Options Contracts are to be executed on the Stock Exchange, Client and Eternal Pearl shall contract as principals under Client Contracts.
2.8.2 Eternal Pearl agrees to provide Client, upon request, with (i) the product specifications for Options Contracts and any prospectus or other offering document covering such Options Contracts and (ii) the HKEx’s booklet “Understanding Stock Options (and their Risks)”.
2.8.3 If Eternal Pearl fails to meet Eternal Pearl’s obligations to Client pursuant to this Third Schedule, Client shall have a right to claim under the Compensation Fund established under the SFO, subject to the terms of the Compensation Fund from time to time.
2.8.4 Client understands that on the expiry day but only on the expiry day, the Options System will automatically generate exercise instructions in respect of all open long positions which are in-the-money by or above the percentage prescribed by SEOCH from time to time.
2.8.5 Client may instruct Eternal Pearl to override an “automatically generated exercise instruction” referred to in Clause 2.8.4 above before the System Closure on the expiry day in accordance with the Operational Clearing Procedures of SEOCH.
2.9 Others 其它︰
Eternal Pearl shall designate a representative to be primarily responsible for Client’s affairs. Client shall be notified of the name of that representative and such particulars of the licence of that representative as required by the applicable Laws. Eternal Pearl may, in its absolute discretion, at any time and from time to time, designate another representative of its to replace the first-mentioned representative and such replacement will be effective on such date as conclusively determined by Eternal Pearl. Any information provided pursuant to this Clause 2.9 shall form part of this Agreement.
FOURTH SCHEDULE - CLIENT IDENTIFICATION
附件四 - 客户身份确认
1.1 Terms and expressions defined in this Agreement shall have the same meaning in this Fourth Schedule unless the context otherwise requires. References to clauses in this Fourth Schedule shall refer to clauses contained in this Fourth Schedule, unless the context otherwise requires.
1.2 In the event of any inconsistency between the provisions of this Agreement and this Fourth Schedule, the provisions of this Fourth Schedule shall prevail.
2. Client shall immediately upon Eternal Pearl’s request and within two (2) days (or such other time period as may be specified by Eternal Pearl) provide to Eternal Pearl and/ or a Regulator information (including, without limitation, details of identity, address, occupation, contact details and/or in the case of a corporate entity, nature and scope of business activities, source of funds, business structure, shareholdings and other information) relating to the ultimate beneficial owner(s) of the Account and/or the person(s) ultimately responsible for the giving of instructions in relation to any transaction or in relation to any dealings with any securities or investments in the Account.
3. If Client operates the Account or effects any transaction for a collective investment scheme, discretionary account or trust, Client shall:
3.1 immediately upon Eternal Pearl’s request and within two (2) days (or such other time period as may be specified by Eternal Pearl) provide to Eternal Pearl and/ or a Regulator the name, address and contact details of such scheme, account or trust and, if applicable, the identity, address, occupation or business structure and contact details of the person who, on behalf of such scheme, account or trust, ultimately originated the instruction to Client to operate the Account and/or effect the transaction; and
3.2 as soon as practicable, inform Eternal Pearl when Client’s discretion or power to operate the Account or to invest on behalf of such scheme, account or trust has been overridden, revoked or terminated. In such case, Client shall, immediately upon Eternal Pearl’s request and within the time specified by Eternal Pearl, provide to Eternal Pearl and/or a Regulator the identity, address, occupation and contact details of the person who has given such overriding instruction or notice of revocation or termination.
4. If Client does not know the information referred to in clauses 2 and 3 above, Client shall confirm that:
4.1 Client has arrangements in place which would entitle Client to obtain and provide to Eternal Pearl and/or a Regulator upon its request all such information or to procure that such information be so obtained within two (2) days;
4.2 Client shall, upon Eternal Pearl’s request, immediately obtain all such information from any relevant third party, and provide that information to Eternal Pearl and/or a Regulator within two (2) days or such other time period as may be specified by Eternal Pearl and/or the Regulators; and
4.3 Eternal Pearl may, pending receipt by it and/or by a Regulator of such information, or if such information is not received within two (2) days or such other the time period as may be specified by Eternal Pearl and/or the Regulators, decide in its absolute discretion and at any time, not to act (even if such declining may result in any loss) or not to give effect to any of Client’s instructions and/or to suspend or terminate the effecting of any transaction or the operation of the Account.
5. Client confirms that Client is not subject to any Regulations, or any law of any relevant jurisdiction, which prohibits Client’s performance of the obligation under this Fourth Schedule or, if Client is subject to such Regulations and/or such law, that Client or Client’s own customers, as the case may be, has or have waived the benefit of such Regulations and/or such law or consented in writing to the performance by Client of the obligations under this Fourth Schedule. Client confirms that such waivers are valid and binding under the laws of all relevant jurisdictions.
6. The Client’s obligation to provide information under this Fourth Schedule shall continue in full force and effect notwithstanding the termination of this Agreement.
FIFTH SCHEDULE - PERSONAL DATA
附件五 - 个人数据
1.1 Terms and expressions defined in this Agreement shall have the same meaning in this Fifth Schedule unless the context otherwise requires. References to clauses in this Fifth Schedule shall refer to clauses contained in this Fifth Schedule, unless the context otherwise requires.
1.2 In the event of any inconsistency between the provisions of this Agreement and this Fifth Schedule, the provisions of this Fifth Schedule shall prevail.
2. From time to time, it shall be necessary for Client to supply Eternal Pearl with data (including “personal data” as defined in the Personal Data (Privacy) Ordinance as amended from time to time) in connection with the establishment or continuation of accounts or the provision of services by Eternal Pearl and generally Client’s relationship with Eternal Pearl in Hong Kong. This may include but will not be limited to information obtained in relation to Client’s identity (name, date of birth, passport/identity card number, address(es), marital status, education level and employment information), as well as information collected for the purposes of ascertaining Client’s financial profile, risk appetite, income (including sources of income) and net worth. Failure to supply, or to allow Eternal Pearl to use or disclose, such data may result in Eternal Pearl being unable to provide, or continue to provide any of the above facilities or services to or for Client in Hong Kong or elsewhere.
3. The purposes for which data may be collected, used and/or disclosed by Eternal Pearl (whether before or after the termination of Client’s relationship with Eternal Pearl) are set out as follows:
3.1 the processing of applications for, and daily operation of services provided to Client or to other persons for whom Client acts as guarantor or for whom Client provides third-party security;
3.2 customer relationship management (including but not limited to loyalty programs or privileges and rewards schemes);
3.3 conducting, seeking or obtaining credit checks, matching procedures, data verification, due diligence and risk management;
3.4 assisting other financial institutions to conduct credit checks and collect debts;
3.5 ensuring Client’s or any surety’s ongoing creditworthiness;
3.6 maintaining Client’s or any surety’s credit history for present and future reference;
3.7 improving, enhancing, designing or launching existing or new financial services or related products for Client’s use (including, where appropriate, providing Client with financial advice);
3.8 if Client has consented (including an indication of no objection) to the use of Client’s personal data for direct marketing purposes by members of the Group and/or entities outside the Group in the Account Application, or otherwise marketing the following goods, products, services and facilities:
3.8.1 Financial services;
3.8.2 Related investment products;
3.8.3 Financial and investment advice;
3.8.4 Client relationship management services;
3.8.5 Client credit protection and maintenance services; or
3.8.6 Any other related goods, products or services that Eternal Pearl or a member of the Group may develop under paragraph 3.7 of this Fifth Schedule, unless Client instructs Eternal Pearl otherwise, and seeking or obtaining the same;
3.9 determining the amount of indebtedness owed to or by Client or any surety;
3.10 collecting of amounts outstanding from Client or any surety;
3.11 meeting any requests or requirements to make disclosure under the Laws;
3.12 enabling an actual or proposed assignee of Eternal Pearl in connection with merger, amalgamation, reconstruction or otherwise to evaluate the transaction intended to be the subject of the assignment;
3.13 any other purpose disclosed in the website(s) of Eternal Pearl or a member of the Group from time to time;
3.14 commencing, defending or otherwise participating in any legal or administrative proceedings or inquiry before any court or competent authority;
3.15 satisfying any requirements under the codes on takeovers and mergers and share repurchases issued by the SFC (as amended from time to time) and/or any other applicable Laws and/or Regulations in relation to takeovers in Hong Kong and/or any part of the world;
3.16 seeking or obtaining administrative, telecommunications, computer, payment, debt collection or securities clearing, custodian, market data provision, audit, banking, financing, insurance, business consulting, outsourcing, or other services to Eternal Pearl in connection with the operation of its business; and
3.17 any other lawful purpose directly or indirectly relating or incidental to any of the above.
4. Data held by Eternal Pearl relating to Client, any surety and/or the Account shall be kept confidential but Eternal Pearl may, at its sole discretion, provide such information to the following persons for direct marketing purposes (where consented (including an indication of no objection) by Client) or any other purposes permitted by this Fifth Schedule:
4.1 any agent, contractor or third party service provider (whether in Hong Kong or elsewhere) who provides administrative, telecommunications, computer, payment, debt collection or securities clearing, custodian, market data provision, audit, banking, financing, insurance, risk management, business consulting, outsourcing, customer relationship management, marketing or other services to Eternal Pearl in connection with the operation of its business;
4.2 any branch or office of Eternal Pearl or any member of the Group, whether in Hong Kong or elsewhere;
4.3 any person acting or proposing to act as surety;
4.4 any person under a duty of confidentiality to Eternal Pearl (or any member of the Group) or who has undertaken to keep such information confidential;
4.5 any financial institution with which Client has or proposes to have dealings;
4.6 credit reference agencies and, in the event of default, to debt collection agencies;
4.7 the drawee bank providing a copy of a paid cheque (which may contain information about the payee) to the drawer;
4.8 any actual or proposed assignee or transferee of Eternal Pearl;
4.9 any person or entity who has established or proposes to establish any business relationship with Eternal Pearl or the recipient of the data; and
4.10 any person in accordance with the Laws or Regulations including through or pursuant to any rules, judgment, decision or ruling of the courts, arbitral tribunals, Financial Dispute Resolution Centre Limited, governmental, regulatory or other bodies or institutions, whether as required by the Laws and Regulations that are applicable to any member of the Group, or otherwise, or any company issuing a notice under section 329 of the SFO.
5. Client agrees that data may be transferred overseas pursuant to the provisions of this Fifth Schedule.
6. Client acknowledges and accepts the risks that the information disclosed pursuant to this Fifth Schedule may be subject to further disclosure by the recipient to other parties in accordance with the laws of the country in which the recipient is located. Such laws may be wider in scope and implemented under less restrictive terms than would otherwise be the case in Hong Kong due to difference in applicable laws and regulations.
7. Client agrees to allow Eternal Pearl to disclose Client’s data for the purposes and to those persons as set out in this Fifth Schedule and to use such data pursuant to this Fifth Schedule.
8. Where Client supplies Eternal Pearl with any data (including personal data), Client represents and warrants to Eternal Pearl that Client has taken all action necessary to authorise the disclosure of such data to Eternal Pearl and the use by Eternal Pearl of such data pursuant to this Agreement.
9. Client may request to ascertain whether Eternal Pearl holds Client’s personal data and Eternal Pearl’s policies and practices in relation to personal data. Further, Client may request access to and correction of Client’s personal data. Client also has the right to be informed about the kind of personal data held by Eternal Pearl and which items of data Eternal Pearl routinely discloses to credit reference agencies, and to be provided with further information to enable the making of a data access and correction request to the relevant credit reference agency. Any requests should be made in writing with fourteen (14) day advance notice to the Compliance Department, 19/F, No. 88 Gloucester Road, Wanchai, Hong Kong or such other address as Eternal Pearl may subsequently notify from time to time. Eternal Pearl may charge a reasonable fee for processing any data access request.
10. Where Eternal Pearl grants any credit facilities to Client or to another person for whom Client acts as guarantor, in the event that Client or the borrower defaults in repayment for a period exceeding sixty (60) days or such other period as prescribed by the laws or the relevant Regulators from time to time, data (which has been provided by Eternal Pearl to the relevant credit reference agency) may be retained by that credit reference agency until the earlier of the expiry of five (5) years from the date of final settlement of the amount in default and five (5) years from the date of Client’s discharge from bankruptcy as notified to that credit reference agency. In the event of termination of the relevant account by full repayment and on condition that there has not been, within five (5) years immediately before account termination, any material default on that account, Client may instruct Eternal Pearl to make a request to the relevant credit reference agency to delete from its database any account data relating to the terminated account but such instruction should be given within five (5) years after account termination.
11. Without limiting the other provisions of this Fifth Schedule where Client applies for credit (including any loan, overdraft facility or any other kind of credit) to be granted to Client or to another person for whom Client acts as guarantor, the data which Client provides to Eternal Pearl may be passed on to a credit reference agency or, in the event of a default, to a debt collection agency in accordance with the provisions of the code of practice on consumer credit data approved and issued under the Personal Data (Privacy) Ordinance as amended from time to time.
12. For the purposes of this Fifth Schedule, if applicable, account data may include account general data (i.e. general particulars of the relevant account such as account opening date, repayment terms, whether Client as a borrower or guarantor, approved loan amount, repayment terms) and account repayment data (such as the amount repaid, outstanding balance of the loan, default data including the amount and number of days overdue).
13. Without prejudice to the right of Eternal Pearl to rely on grandfathering provision(s) or exemption(s) under the Personal Data (Privacy) Ordinance as amended from time to time or other applicable law, by consenting (including an indication of no objection) to the use of Client’s personal data for direct marketing purposes by members of the Group in the Account Application, or otherwise Client agrees and consents that Eternal Pearl may send by telephone, mail, email or other electronic means to Client from time to time direct marketing materials or messages relating to services or products which, in the opinion of Eternal Pearl, Client may be interested in. Client agrees that to the extent permitted by Laws and the Regulations the consent herein shall constitute specific opt-in for the purpose of any applicable privacy rules or regulations. Notwithstanding this, Client may at any time request not to receive such direct marketing materials or messages from Eternal Pearl if Client so requests in writing to Eternal Pearl at this address: Compliance Department, 19/F, No. 88 Gloucester Road, Wanchai, Hong Kong or such other address as Eternal Pearl may subsequently notify from time to time. Unless and until Client has so requested in writing, Client shall be deemed to be willing to receive any such information.
14. The contents of this Schedule may be updated by Eternal Pearl by giving written notice to Client at any time.
SIXTH SCHEDULE - The E-SERVICE
附件六 - 电子服务
1.1 In this Sixth Schedule, unless the context otherwise requires, the following words and expressions have the meanings set out below:
“Access Codes” means together any Key File (if applicable), Password and the Login ID;
“E-Service” means the Internet or other facility provided by, and/or on behalf of, Eternal Pearl which enables Client to give electronic Instructions in accordance with the terms of this Agreement, whether in Hong Kong or elsewhere, and to receive information and related services;
“Instruction” means any offer or acceptance in relation to any Securities or, where applicable, any instruction in relation to the Account and “Instruct” shall be construed accordingly;
“Internet Trading Policy” means the policy relating to the operation of the E-Service as amended from time to time;
“Key File” means a computer file, disk or other device which contains a file code which may be used in conjunction with the Login ID and the Password to gain access to the E-Service;
“Login ID” means personal identification used in conjunction with other Access Codes to gain access to the E-Service; and
“Password” means Client’s personal password, used in conjunction with other Access Codes to gain access to the E-Service.
1.2 Terms and expressions defined in this Agreement shall have the same meaning in this Sixth Schedule unless the context otherwise requires. References to clauses in this Sixth Schedule shall refer to clauses contained in this Sixth Schedule, unless the context otherwise requires.
1.3 In the event of any inconsistency between the provisions of this Agreement and this Sixth Schedule, the provisions of this Sixth Schedule shall prevail.
2. Eternal Pearl may at its discretion provide Client with the E-Service on the terms of this Agreement, and the provisions of this Sixth Schedule apply if Eternal Pearl provides Client with the E-Service. Client agrees to use the E-Service in accordance with the terms of this Agreement.
3. Client understands that the E-Service is a semi-automated facility which enables it to send electronic Instructions and receive information services. Client acknowledges that notwithstanding anything to the contrary contained herein or in any other document (written form or otherwise), Eternal Pearl shall have the absolute discretion to determine the functions of E-Services available to Client and such functions may be changed by Eternal Pearl at any time and from time to time without notice to or consent from Client and without assigning any reason therefor. Client further acknowledges receipt of the Access Codes and agrees to be the sole user of the Access Codes and not to disclose the Access Codes to any other person; and to be solely responsible for the confidentiality, use and protection of the Access Codes and all Instructions entered through the E-Service using the Access Codes. Client agrees that neither Eternal Pearl nor Eternal Pearl’s directors, officers or employees shall have any liability to Client, or to any other person whose claim may or may not arise through Client, for any claims with respect to the handling, mishandling or loss of, or loss of confidentiality of, any Instruction.
4. Eternal Pearl may, at any time and from time to time, block Client’s access to and/or use of the E-Service (or any part thereof) without prior notice to or any consent from Client and without assigning any reason therefor.
5. Client shall forthwith notify Eternal Pearl if:
5.1 An Instruction has been placed through the E-Service and Client has not received an accurate acknowledgment receipt of the Instruction (whether by hard copy, electronic or verbal means) within one working day of the Instruction and the aforesaid “working day” means a day when Eternal Pearl opens for business in Hong Kong;
5.2 Client has received notification (whether by hard copy, electronic or verbal means) of a transaction which Client did not Instruct;
5.3 Client becomes aware of any apparent unauthorised use of any of Client’s Access Codes;
5.4 Client experiences any problems in accessing its Account through the E-Service; or
5.5 Client loses, fails or is otherwise unable to adequately protect confidentiality of the Access Codes.
6. Any risk, including (without limitation) the risk of transmission error, transmission failure, delay, unauthorised access and unauthorised use, arising from or related to the access to and/or use of the E-Service by Client and/or any software or equipment for accessing and/or using the E-Service (whether provided by Eternal Pearl or otherwise), is at the risk of Client. Client shall provide and maintain, at Client’s own risk and cost, the connection equipment (including personal computers, mobile trading devices and modems) and services for accessing and using the E-Service. Client shall be solely responsible for preventing anything which may be harmful to any such equipment (including, without limitation, computer virus, malicious program or harmful component) from entering into any such equipment, whether or not it is originated from Eternal Pearl’s websites (including, without limitation, the Group’s Website and the website comprising E-Service), whether maintained or provided by or on behalf of Eternal Pearl, (together, the “Websites”) and, if applicable, whether or not originated from anything provided by Eternal Pearl. Further, Client acknowledges that the Internet or other electronic medium (including E-Service or any part of the Websites) is an inherently unreliable medium of communication and that such unreliability is beyond Eternal Pearl’s control. Client further acknowledges that such unreliability may give rise to various consequences e.g. it may result in failure or delay in transmission of any Instruction or information or affect any function of E-Service or the timeliness, sequence, accuracy, adequacy or completeness of any Instruction or information transmitted or cause loss, or loss of confidentiality, of any Instruction or information transmitted or any transaction made on terms different from the relevant Instruction. Client understands that the aforesaid is not an exhaustive list of all consequences resulted from such unreliability. Client agrees that without limiting the generality of Clause 17.1 of this Agreement above, Eternal Pearl shall not be responsible for any loss, damage, cost, expenses, claim or liability of whatsoever nature, directly or indirectly, arising out of or in connection with such unreliability or the public nature of the Internet or other electronic medium (including E-Service or any part of the Websites).
7. Client shall use information and materials available through the E-Service for its own needs and shall not resell to any third party or otherwise allow or permit any third party’s access to or use of any such information or materials or otherwise deal with it/them in any way.
8. Client acknowledges that the E-Service, the Websites, information available via or on the E-Service and/or any part of the Websites and the software comprised in the E-Service and/or any part of the Websites are proprietary to Eternal Pearl and/or its agents, partners or contractors. Client warrants and undertakes that it shall not, and shall not attempt to,
(i) tamper with, modify, de-compile, reverse-engineer or otherwise alter in any way, or
(ii) gain unauthorised access to or make unauthorised use of
any part of the E-Service or any part of the Websites or any information available via or on the E-Service or any part of the Websites or any of the software comprised in the E-Service or any part of the Websites. Client acknowledges that Eternal Pearl may take legal action against it, if Client at any time breaches this warranty and undertaking or if Eternal Pearl at any time reasonably suspects that Client has breached the same. Client undertakes to notify Eternal Pearl immediately if Client becomes aware that any action described in this clause 8 is being perpetrated or attempted by another person.
9. Client acknowledges that in providing the E-Service, Eternal Pearl may use such authentication technologies as it deems appropriate. Client acknowledges that no authentication, verification or
10. Client understands that Eternal Pearl shall be entitled to prepare the Internet Trading Policy (as amended from time to time) setting out the operation policy and procedures of the E-Service which shall be available on the Websites (or such part thereof as designated by Eternal Pearl from time to time) and the terms of which shall be binding on Client in respect of its use of the E-Service. The Internet Trading Policy may be amended by Eternal Pearl at any time and from time to time and each amended version shall be applicable on the effective date as specified in the relevant notice available on the Websites (or such part thereof as designated by Eternal Pearl from time to time). In the event of inconsistencies between the terms of this Agreement and the Internet Trading Policy, the terms of this Agreement shall prevail.
11. Client acknowledges that the price quotation service (if any) available on any part of the Websites may be provided by a third party provider appointed by Eternal Pearl from time to time. Client acknowledges and agrees that Eternal Pearl shall not be responsible to Client or any other person for any losses, costs, expenses, damages, claims or liabilities of whatsoever nature which Client or such other person may suffer, directly or indirectly, as a result of or in connection with any aspect of such service including, without limitation, Client’s or such other person’s reliance on such service. Client shall use price quotation (if any) for its individual use only and shall not furnish such data to any other person or entity for any reason.
12. Client understands that any part of the Websites may provide, for informational purpose only, data regarding Securities and/or other investments published by third parties. Owing to market volatility and possible delay in the data-transmission process, the data may not be real-time market quotes for the relevant Securities or investment. Client understands that whilst Eternal Pearl believes such data to be reliable, there is no independent basis for Eternal Pearl to verify or contradict the accuracy or completeness of such data. Client understands that no recommendation or endorsement from Eternal Pearl shall be inferred from such data.
13. Client acknowledges and agrees that Eternal Pearl does not guarantee the timeliness, sequence, accuracy, adequacy or completeness of any information provided by or via the E-Service or on or via the Websites (or any part thereof) and any such information is provided on an “as is”, “as available” basis. Eternal Pearl gives no express or implied warranties (including but not limited to warranties of merchantability or fitness for a particular use) with respect to such information. Further, Client acknowledges that Eternal Pearl gives no express or implied warranties, representations or undertakings with respect to the prices available from or via E-Service at which Client may make offers in respect of Securities (including, without limitation, any warranty, representation or undertaking that such prices are real-time market quotes or best available market prices).
14. Client accepts the risks of receiving or gaining access to services and communication and conducting transactions via the E-Service or over the Internet or by other electronic means or facilities.
15. Client shall, forthwith upon Eternal Pearl’s demand from time to time, pay to Eternal Pearl such applicable costs, charges, expenses, fees, taxes, levies, duties, brokerages, commissions and other applicable remuneration and payments in respect of any transaction via the E-Service and/or the provision to Client of the E-Service (or any part thereof) as notified in writing by Eternal Pearl to Client from time to time.
16. Client consents that any document (including, without limitation, any Advice), information, notice or communication may be given or presented to or exchanged with Client electronically on, via or over the Internet, the E-Service and/or any part of the Websites. Any document (including, without limitation, any Advice), information, notice or communication so given or presented to or exchanged with Client as aforesaid shall be deemed to have received by it immediately upon despatch. However, all notices and communications given or delivered to Eternal Pearl electronically on, via or over the Internet, the E-Service and/or any part of the Websites shall be deemed to have been given or delivered to Eternal Pearl on the day of actual receipt by it.
17. Client agrees that should it experience any problems in accessing to and/or using the E-Service, it shall attempt to use the alternative method to communicate with Eternal Pearl (whether or not for the purpose of any transaction) and inform Eternal Pearl of the difficulty it is experiencing.
18. Client understands that each association/entity asserts a proprietary interest in all of the market data it furnishes to the parties who disseminate such data. Client also understands that no party guarantees the timeliness, sequence, adequacy, accuracy or completeness of market data or any other market information. Client agrees that neither Eternal Pearl nor any disseminating party shall be liable in any way for any loss or damage arising from or caused by any inaccuracy, error or delay in or omission from any such data, information or related message, or the transmission or delivery of the same, or non-performance or interruption of any such data, message or information due to any negligent act of Eternal Pearl or any disseminating party, or to any force majeure event, or any other cause beyond Eternal Pearl’s control or the reasonable control of any disseminating party.
19. Client acknowledges and agrees that there are risks of misunderstanding or errors in any communication (including any communication or Instruction via the E-Service) and that such risks shall be absolutely and solely borne by Client.
20. Client acknowledges and agrees that each Instruction once given cannot be revoked and if acted on by Eternal Pearl, such Instruction shall be binding on Client. For avoidance of any doubt, any Instruction in relation to any Securities given via E-Service shall constitute an irrevocable offer which, if accepted by Eternal Pearl, shall become a binding contract between Eternal Pearl and Client. Notwithstanding anything to the contrary which may be contained in this Agreement or any other document, Eternal Pearl may, at any time and from time to time, in its absolute discretion without notice and without giving any reason therefor, decline to accept any Instruction. Client acknowledges that without prejudice to the foregoing in this Clause 20, any trade confirmation issued from or via E-Service shall be merely an acknowledgement of the receipt of the relevant Instruction.
21. Client understands that the order management engine used in processing Client’s Instructions is, generally speaking, handled on a “First-In-First Out” order and accordingly, Eternal Pearl does not guarantee that any of Client’s Instructions will be processed even though it may have been received.
22. If Client gives any Instruction to Eternal Pearl outside Hong Kong, Client agrees to ensure and represent that such Instruction will have been given in compliance with any applicable law of the relevant jurisdiction from which such Instruction is given, and Client further agrees that it shall, when in doubt, consult legal advisers and other professionals of the relevant jurisdiction. Client accepts that there may be taxes and/or charges payable to relevant authorities in respect of any Instruction given outside Hong Kong, and Client agrees to pay such taxes and/or charges as applicable.
23. Without limiting the generality of Clause 17.1 of this Agreement above, Client agrees that Eternal Pearl shall not be responsible for any loss, damage, cost, expenses, claim or liability of whatsoever nature, directly or indirectly, arising out of or in connection with:
23.1 Client’s access to and/or use of the Internet or other electronic medium (including E-Service or any part of the Websites) notwithstanding that such access and/or use is for accessing any website operated by Eternal Pearl and/or on Eternal Pearl’s behalf and/or using any service provided by Eternal Pearl and/or on Eternal Pearl’s behalf;
23.2 any reliance on any information obtained via Client’s use of the Internet or other electronic medium (including E-Service or any part of the Websites) notwithstanding that such information is obtained from any website operated by Eternal Pearl and/or on Eternal Pearl’s behalf; and
23.3 any other cause beyond Eternal Pearl’s control or anticipation including, without limitation, any delay in the transmission, receipt or execution of any Instruction due to a breakdown or failure of transmission of communication facilities.
24. Client agrees that notwithstanding anything to the contrary contained herein or in any other document, should there be any inconsistency between the information (including any document but not any Advice) available from or via the E-Service, the Websites, the Internet or other electronic medium (whether or not the same being available in accordance with this Agreement) and the information on Eternal Pearl’s records, the information on Eternal Pearl’s records shall prevail save for any manifest error and that Eternal Pearl shall accept no liability as a result of the unreliable nature of the Internet or other electronic medium (including E-Service or any part of the Websites) or other reason beyond the control of Eternal Pearl.
25. Client understands and accepts the following risks in using the E-Service:
25.1 Risk in relation to the use of the Internet or other electronic medium
(a) The Internet or other electronic media (including without limitation, where applicable, electronic devices, services of third party telecom service providers such as mobile phones or other handheld trading devices) is/are an inherently unreliable form(s) of communication, and that such unreliability is beyond Eternal Pearl’s control.
(b) Transactions over the Internet or through other electronic media (including without limitation, where applicable, electronic devices, services of third party telecom service providers such as mobile phones or other handheld trading devices) may be subject to interruption (including, without limitation, stoppage of price data feed), transmission blackout, delayed transmission due to data volume, incorrect data transmission due to the public nature of the Internet or other electronic media or loss of information or loss of confidentiality.
(c) As a result of such unreliability, there may be time-lags or delays in the transmission of data and receipt of Instructions and Client has to solely bear any loss resulting from any such time-lag or delay.
25.2 Risk of Electronic Trading System电子交易系统风险
Trading on one electronic trading system may differ from trading on other electronic trading systems. If Client undertakes transactions on an electronic system, Client shall be exposed to risks associated with the system including the failure of hardware and software. The result of any system failure may be that in respect of Client’s Instructions, there may be transmission error, failure or delay.
25.3 Risk of Trading Facilities交易设施风险
Electronic trading facilities are supported by computer-based component systems. As with all facilities and systems, they are vulnerable to temporary disruption or failure. Client’s ability to recover certain losses may be subject to limits on liability imposed by the system provider, the market, the clearing house and/or participant firms. Such limits may vary: Client should ask the firm with which Client deals for details in this respect.
Client understands and acknowledges that the risks above disclosed do not purport to disclose or discuss all of the risks associated with using E-Service and that Client should consult Client’s own independent legal and other advisors prior to entering into any transaction via E-Service.
26. Client consents and authorises Eternal Pearl to deliver the Password to Client by email (“Authorisation”) to the email address specified in the Account Application and agrees to bear all risks associated with such email delivery, including but not limited to the risks of transmission error, delay, unauthorised disclosure and unauthorised use. Client agrees that the Password will be deemed to have been received by Client immediately upon despatch. Client acknowledges that once the Password is deemed to be received by Client, Client shall be the sole user of the Password and be solely responsible for the confidentiality, protection and use of the Password as well as all instructions/offers placed by using the Password. Eternal Pearl shall not have any liability to Client or any third party for any loss, damages, expense, cost, claim or liability of whatsoever nature, directly or indirectly, arising out of or in connection with any such instruction/offer and/or the handling, inaccurate or incomplete transmission, delay in transmission, loss or loss of confidentiality, or the same. Client agrees at all times on demand to indemnify and keep indemnified Eternal Pearl from and against all liabilities, costs and expenses of any nature whatsoever reasonably incurred by it arising from or in any way related to its reliance and/or acting on this Authorisation (including any email address provided by Client). Client acknowledges that this Authorisation will become effective on the date of Eternal Pearl’s approval of sending the Password in accordance with the terms hereof, which approval may or may not be given by Eternal Pearl in its absolute discretion.
27. Client acknowledges and agrees that the fees set forth in the Websites (or any part thereof) appropriately reflect the allocation of risks set forth in this Agreement. Accordingly, based on the foregoing, Client acknowledges as reasonable the exclusions of warranties and limitations on liability set forth in this Agreement. As such, Client acknowledges and agrees that if any of the exclusions or limitation of warranties or liabilities set forth in this Agreement should be deemed to be invalid, ineffective or unenforceable, or in the event Eternal Pearl is found liable for any claim arising out of or in connection with this Agreement or this Sixth Schedule, then, the entire collective liability of Eternal Pearl and/or any member of the Group shall in no circumstance exceed two (2) times the amount of fees paid by Client to Eternal Pearl in the month immediately preceding the act or omission or circumstance giving rise to a claim.
28. All or any part of the E-Service (or any option permitted under all or any part of the E-Service) may be provided at the sole and absolute discretion of Eternal Pearl either on an individual account basis or on the basis of all accounts maintained by Client with Eternal Pearl. Eternal Pearl shall have the right to send a notice by way of a letter, email or other electronic means to require Client to clarify or confirm its instructions relating to all or any part of the E-Service and/or any other service provided under the Agreement. Client shall have the duty to clarify or confirm its instruction as required by such notice. If Eternal Pearl does not subsequently receive any express instruction in writing from Client correcting Eternal Pearl’s understanding of Client’s instruction as stated in such notice by the response time limit stated in such notice, Client shall be deemed to have confirmed Eternal Pearl’s understanding of the relevant instruction of Client and/or the manner in which Eternal Pearl handles or will handle Client’s instruction as stated in such notice.
SEVENTH SCHEDULE - FOREIGN LAW REQUIREMENTS
附件七 - 外国法要求
1.1 Definitions 定义
In this Seventh Schedule, unless the context otherwise requires, the following words and expressions have the meanings set out below:
“Close-Out Amount” means, unless otherwise specifically provided for in the transaction documentation applicable to a particular transaction or group of transactions, with respect to each terminated transaction, the amount of the losses or costs of Eternal Pearl that are or would be incurred under then prevailing circumstances (expressed as a positive number) or gains of Eternal Pearl that are or would be realised under then prevailing circumstances (expressed as a negative number) in replacing, or in providing for Eternal Pearl the economic equivalent of the material terms of that terminated transaction. Any Close-out Amount will be determined by Eternal Pearl (or its agent), which will act in good faith and use commercially reasonable procedures in order to produce a commercially reasonable result. Unpaid Amounts in respect of a terminated transaction and legal fees and out-of-pocket expenses are to be excluded in all determinations of Close-out Amounts. In determining a Close-out Amount, Eternal Pearl may consider any relevant information, including, without limitation, quotations (either firm or indicative) for replacement transactions supplied by one or more third parties and market data in the relevant market. When it is commercially reasonable to do so, Eternal Pearl may in addition consider in calculating a Close-out Amount any loss or cost (or gain) incurred in connection with its terminating, liquidating or re-establishing any hedge related to a terminated transaction. Commercially reasonable procedures used in determining a Close-out Amount may include the application of pricing or other valuation models that are, at the time of the determination of the Close-out Amount, used by Eternal Pearl in the regular course of its business in pricing or valuing transactions.
“FATCA” means <海外户口税收合规法> 或“FATCA”指
(a) sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended) or any amended or successor version thereof;
<1986年美国国内收入法> (U. S. Internal Revenue Code of 1986) (经修订)第1471条至1474条，或其任何修订或继任版本；
(b) any intergovernmental agreement, memorandum of understanding, undertaking and other arrangement between governments and regulators in connection with item (a) including as entered into by the government of Hong Kong;
(c) agreements between Eternal Pearl and the IRS or other regulator or government agency pursuant to or in connection with item (a); and
(d) any laws, rules, regulations, interpretations or practices adopted in the U.S., Hong Kong or elsewhere pursuant to any of the foregoing.
“Foreign Law Requirement” means any obligation imposed on Eternal Pearl pursuant to any future or present: 「外国法要求」指向恒明珠施加任何义务的任何现行或今后实行的以下各项：
(a) foreign laws (including foreign laws in respect of which Eternal Pearl considers itself bound);
(b) Hong Kong laws that implement Hong Kong’s obligations under an agreement with a foreign government (including the government of the PRC) or regulator;
(c) agreements entered into between Eternal Pearl and a foreign government (including the government of the PRC) or regulator;
(d) agreements entered into between Eternal Pearl and any counterparty or between Eternal Pearl and any issuer of securities or other investment products under or pursuant to or in connection with which Eternal Pearl is required to comply with any foreign laws or any guidelines or guidance mentioned in item (e) below; or
(e) guidelines or guidance issued by any legal, regulatory, government, tax or law enforcement body within or outside of Hong Kong in respect of items (a) to (c).
For avoidance of any doubt, this definition includes any obligation or requirement applying to Eternal Pearl as amended or introduced from time to time, including pursuant to FATCA.
“Government Authority” means any government, government body, government agency or regulator, in or outside of Hong Kong, including the Inland Revenue Department of Hong Kong and the IRS.
“ “IRS” means the U.S. Internal Revenue Services.
「IRS」 指美国国家税务局 (Internal Revenue Services)。
“PRC” means the People’s Republic of China (excluding Hong Kong, Macau and Taiwan).
“Relevant Information” means any information, document or certification given by or relating to Client, any Ultimate Owner, any authorised representatives of the Client, any Account with Eternal Pearl or any transaction and shall include where the context permits identity information and personal data including Client’s name, address, tax payer identification number, Account numbers, Account balances or value and any payments made in respect to the Accounts.
“Ultimate Owner” means any ultimate beneficial owner of any Account with Eternal Pearl, the person ultimately responsible for giving of instructions of any transaction, any person who act on Client’s behalf in receiving payment or any other person identified by Eternal Pearl in its sole and absolute discretion as being connected with Client.
“Unpaid Amounts” mean any unpaid amounts and the value of unsettled transactions together with interest thereon as determined by Eternal Pearl in good faith and a commercially reasonable manner.
“U.S.” means the United States of America.
1.2 Terms and expressions defined in this Agreement shall have the same meaning in this Seventh Schedule unless the context otherwise requires. References to clauses in this Seventh Schedule shall refer to clauses contained in this Seventh Schedule, unless the context otherwise requires.
1.3 In the event of any inconsistency between the provisions of this Agreement and this Seventh Schedule, the provisions of this Seventh Schedule shall prevail; provided, however, that this Seventh Schedule in no way seeks to limit any of Eternal Pearl’s rights under this Agreement and should be interpreted accordingly.
2. UNDERTAKING TO PROVIDE INFORMATION 承诺提供数据
2.1 Client agrees that Eternal Pearl may disclose Relevant Information to any person or Government Authority, whether or not established under Hong Kong law, as required under any Foreign Law Requirement (including but not limited to FATCA) as determined by Eternal Pearl.
客户同意，恒明珠可根据任何外国法要求 (包括但不限于 FATCA)，向任何人士或政府机关(不论是否根据香港法例成立) 披露恒明珠决定的有关资料。
2.2 Client undertakes to provide Eternal Pearl with information, documents and certifications as reasonably required by Eternal Pearl in order to meet Eternal Pearl’s obligations under any Foreign Law Requirement (including but not limited to FATCA). Client acknowledges and agrees that this may include Eternal Pearl – Client Agreement January 2017 Edition 26 information, documents or certifications in connection with Client, its authorized representatives, or the Ultimate Owner.
客户承诺向恒明珠提供恒明珠为履行其于任何外国法要求 (包括但不限于 FATCA) 项下的义务而合理要求的数据、文件及证明书。客户确认及同意，这可能包括与客户、客户的获授权代表或最终拥有人有关的资料、文件及证明书。
2.3 Client will, promptly and from time to time, supply Eternal Pearl with identity information and personal data in connection with the establishment or continuation of any Account with Eternal Pearl or provision of services. Client further acknowledges that failure to supply Relevant Information may result in Eternal Pearl being unable to effect a transaction, provide the services under this Agreement or operate or maintain any Account with Eternal Pearl; or may result in Eternal Pearl terminating the Account. It may also result in Eternal Pearl having to withhold or deduct amounts as required under any Foreign Law Requirement (including but not limited to FATCA).
客户将不时立即向恒明珠提供与于恒明珠开立或维持开立任何账户或提供服务有关的身份数据及个人数据。客户进一步确认：如未能提供有关数据，则可能导致恒明珠不能进行交易，或不能向客户提供本协议项下的服务，或不能操作或维持于恒明珠开立的任何账户，或导致恒明珠终止账户，且亦可能导致恒明珠须根据任何外国法要求 (包括但不限于 FATCA) 扣缴或扣减款项。
2.4 Client shall notify Eternal Pearl forthwith of any change to the Relevant Information. Eternal Pearl shall be entitled to rely fully on all such Relevant Information for all purposes until Eternal Pearl is notified to the contrary in writing and any such written notification shall be duly signed by Client. Client understands and accepts that notwithstanding anything to the contrary which may be contained in this Agreement including this Seventh Schedule, any change to any such information shall not take effect until such time as prescribed by Eternal Pearl at is sole and absolute discretion, and in case where no time limit is prescribed by Eternal Pearl, then the relevant appointment shall take effect five (5) days after the actual receipt by Eternal Pearl of the relevant written notification or until such shorter period of time as may be agreed by Eternal Pearl in writing.
2.5 For avoidance of any doubt, to the extent that applicable non-disclosure, confidentiality, bank secrecy, data privacy or other law imposes nondisclosure requirements on transaction and similar information required or permitted to be disclosed as contemplated herein but permits a party to waive such requirements by consent, the consent and acknowledgements provided herein shall be a consent by Client for purposes of such law.
Without limiting any other indemnity provided by Client, Client will indemnify Eternal Pearl and its directors, employees and representatives against any liability, reasonable loss or expense (including tax or levy) arising from Client’s instructions, Account or the provision of a service to Client, including as a result of any failure by Client to comply with this Agreement, including this Seventh Schedule, Client or other agent of Client providing misleading or false information in respect of Client or any other person or matter in connection with this Agreement, unless Eternal Pearl is guilty of wilful misconduct. 在并无限制客户提供的任何其它弥偿的情况下，客户将就因客户的指示、账户或向客户提供服务而产生的责任、合理损失或开支(包括税费及其它征费)，包括因为客户未能遵守本协议(包括本附件七)、客户及客户的其它代理人就客户或任何其它人士或与本协议有关联的事宜提供具误导成份或错误的数据而引致的任何责任、合理损失或开支(包括税费或其它征费)，向恒明珠、其董事、雇员及代表作出弥偿，但恒明珠的故意不当行为罪行所造成者则另作别论。
4. CONSENT TO DEDUCT, WITHHOLD AND BLOCK同意扣减和扣缴款项及暂停交易
4.1 Client acknowledges and agrees that notwithstanding any other provisions of this Agreement:
(a) any payments by Eternal Pearl under this Agreement will be subject to taxes, levies, imposts, duties or other charges, withholding and/or deduction of a similar nature, at present or in the future, as required under any Foreign Law Requirement (including but not limited to FATCA), including but not limited to value added taxes, stamp duties, fines, penalties or interest payable in connection with any failure to pay or any delay in paying any of the above;
(b) any amount withheld under paragraph (a) above may be held in whatever Account or in whatever manner determined by Eternal Pearl; and
(c) Eternal Pearl is not liable for any gross up, loss or damage suffered as a result of the exercising of our rights under this Clause 4.1.
4.2 Client further acknowledges and agrees that客户进一步确认及同意：
(a) Eternal Pearl has the right to refuse to carry out any instruction or perform any service under this Agreement if such instruction or service, in Eternal Pearl’s opinion, is in contradiction with or constitutes a breach of any Foreign Law Requirement (including but not limited to FATCA) and/or Eternal Pearl’s policies in relation thereof;
(b) any transaction, payment or instruction under this Agreement may be delayed, blocked, transferred or terminated as required for Eternal Pearl to meet its obligations including those under any Foreign Law Requirement (including but not limited to FATCA) as determined by Eternal Pearl; and
(c) Client waives any rights to claim for any loss, damage, cost or expenses suffered as a result Eternal Pearl exercising its rights under the Seventh Schedule.
5.1 Eternal Pearl may take such action that it deems in its sole discretion as appropriate, in respect of the Account, including without limitation suspending or closing the Account if Client fails to comply with any requirement of this Seventh Schedule in respect of any Foreign Law Requirement (including but not limited to FATCA), including failing to provide information, documents and supporting materials as required by Eternal Pearl or closure is otherwise necessary or convenient for compliance with any Foreign Law Requirement (including but not limited to FATCA).
倘若客户未能就外国法要求(包括但不限于 FATCA)遵守本附件七的任何要求,包括未能提供恒明珠要求的数据、文件及支持材料,或者终结账户对于遵守外国法要求(包括但不限于 FATCA)而言是必要或方便的,则恒明珠有自主酌情权可向账户采取所需行动包括但不限于暂停或终结账户。
5.2 If Eternal Pearl terminates the services under this Agreement and close the Account(s) of Client, then Eternal Pearl shall have the right, by termination notice to Client, to designate a day not earlier than the day such termination notice is effective as a close-out date (the “Close-Out Date”) and close out some or all of the outstanding transaction(s) in relation to the terminated Account(s) of Client at Eternal Pearl’s sole and absolute discretion. For avoidance of any doubt, when exercising its right to close out the transactions pursuant to this Clause 5, Eternal Pearl is not liable for any losses or damages arising therefrom.
5.3 Eternal Pearl shall calculate in good faith, with respect to such terminated transaction(s) as of the Close-Out Date or as soon thereafter as reasonably practicable, the early termination amount (the “Early Termination Amount”) as follows:
(a) for each such terminated transaction or each group of such terminated transactions, calculate a Close-Out Amount;
(b) calculate the Early Termination Amount being an amount equal to (1) the sum of (A) the aggregate sum of the Close-Out Amount (whether positive or negative) for each terminated transaction, (B) the Unpaid Amounts owing to Eternal Pearl and (C) any legal cost and out-of-pocket expenses incurred by Eternal Pearl in good faith less (2) the Unpaid Amounts owing to Client; and
(c) if the Early Termination Amount is a positive number, Client will pay it to Eternal Pearl; if the Early Termination Amount is a negative number, Eternal Pearl will pay the absolute value of the Early Termination Amount to Client.
EIGHTH SCHEDULE – PROFESSIONAL INVESTOR
The definition of “Professional Investor” under the SFO (note that, for ease of reference, certain other defined terms have been paraphrased)
根据香港法例第571章 <证券及期货条例> 附表一的第1部份:
“Category A” Professional Investor 「甲类」专业投资者指
(a) certain recognized exchange companies, clearing houses, exchange controllers or investor compensation companies, or persons authorized under the SFO to provide automated trading services;
(b) SFO licensed/registered firms and banks, or any person carrying on the business of the provision of investment services and regulated under the law of any place outside Hong Kong;
(c) Hong Kong and overseas regulated banks;
(d) insurers authorised under the Insurance Companies Ordinance (Chapter 41 of the Laws of Hong Kong), or any person carrying on insurance business and regulated under the law of any place outside Hong Kong;
根据 <保险公司条例> (香港法例第41章) 获授权的保险人,或经营保险业务并受香港以外地方的法律规管的其它人；
(e) any scheme which is an authorised collective investment scheme under the SFO, or any scheme which is similarly constituted under the law of any place outside Hong Kong and, if regulated under such laws, is permitted to be operated under those laws, and any person operating any such scheme;
(f) any Hong Kong registered mandatory provident fund scheme (or its constituent fund), or its approved trustee, service provider or investment manager;
<强制性公积金计划条例> (香港法例第485章)第2(1) 条界定的注册计划,或<强制性公积金计划(一般)规例> (香港法例第485章,附属法例A)第2条界定的该等计划的成分基金,或就任何该等计划而言属该条例第2(1) 条界定的核准受托人或服务提供者或属任何该等计划或基金的投资经理的人；
(g) certain Hong Kong and non-Hong Kong occupational retirement schemes;
属 <职业退休计划条例> (香港法例第426章)第2(1) 条界定的注册计划; 或属该条例第2(1) 条界定的离岸计划，并(如以某地方为本籍而受该地方的法律规管)根据该地方的法律获准许营办，或就任何该等计划而言属该条例第2(1) 条界定的管理人的人；
(h) any government, central bank or multilateral agency, e.g. the World Bank;
(i) (except for the purposes of licensing under the SFO), any wholly-owned subsidiary (direct or indirect) of a company falling within (a) or (b) above, or any (direct or indirect) parent company (holding all of the issued share capital) of any company falling within (a) or (b) above, or any other wholly-owned subsidiary (direct or indirect) of such a parent company
(除为施行证券及期货条例外)符合以下说明的法团，属于下述者的全资附属公司: a.中介人,或经营提供投资服务的业务并受香港以外地方的法律规管的其它人;或 b.认可财务机构,或并非认可财务机构但受香港以外地方的法律规管的银行; 或属持有下述者的所有已发行股本的控股公司: a.中介人,或经营提供投资服务的业务并受香港以外地方的法律规管的其它人;或 b. 认可财务机构,或并非认可财务机构但受香港以外地方的法律规管的银行;或 c.属第 (ii) 节提述的控股公司的任何其它全资附属公司;或
“Category B” Professional Investor 「乙类」专业投资者指
(j) (except for the purposes of licensing under the SFO) any person of a class which is prescribed under the Professional Investor Rules, including
属于为施行本段而藉根据证券及期货条例第397条订立的规则订明为就证券及期货条例条文属本定义所指的类别的人,或 (如为施行本段而藉如此订立的规则订明某类别为就证券及期货任何条文属本定义所指的类别) 在该范围内属于该类别的人:
(a) any trust corporation having been entrusted under the trust or trusts of which it acts as a trustee with total assets of not less than $40 million or its equivalent in any foreign currency at the relevant date or
(i) as stated in the most recent audited financial statement prepared已载于 —
(A) in respect of the trust corporation; and
(B) within 16 months before the relevant date
(ii) as ascertained by referring to one or more audited financial statements, each being the most recent audited financial statement, prepared通过参照 —
(A) in respect of the trust or any of the trusts; and
(B) within 16 months before the relevant date; or
(iii) as ascertained by referring to one or more custodian statements issued to the trust corporation通过参照 —
(A) in respect of the trust or any of the trusts; and
(B) within 12 months before the relevant date;
(b) any individual, either alone or with any of his or her associates on a joint account, having a portfolio of not less than $8 million or its equivalent in any foreign currency at the relevant date or
(i) as stated in a certificate issued by an auditor or a certified public accountant of the individual within 12 months before the relevant date; or
(ii) as ascertained by referring to one or more custodian statements issued to the individual (either alone or with the associate) within 12 months before the relevant date;
(c) any corporation or partnership having符合以下说明的任何法团或合伙 —
(i) a portfolio of not less than $8 million or its equivalent in any foreign currency; or
(ii) total assets of not less than $40 million or its equivalent in any foreign currency, at the relevant date, or as ascertained by referring to
(iii) the most recent audited financial statement prepared通过参照 —
(A) in respect of the corporation or partnership (as the case may be); and
(B) within 16 months before the relevant date; or
(iv) one or more custodian statements issued to the corporation or partnership (as the case may be) within 12 months before the relevant date; and
通过参照在有关日期前12个月内发给该法团或合伙 (视属何情况而定) 的一份或多于一份保管人结单而获确定;及
(d) any corporation the sole business of which at the relevant date is to hold investments and which at the relevant date is wholly owned by any one or more of the following persons
在有关日期的唯一业务是持有投资项目并在有关日期由以下任何一名或多于一名人士全资第 571D 章 - <证券及期货(专业投资者)规则> - 拥有的任何法团—
(i) a trust corporation that falls within the description in paragraph (a);
符合 (a) 段描述的信托法团；
(ii) an individual who, either alone or with any of his or her associates on a joint account, falls within the description in paragraph (b);
符合 (b) 段描述的个人(不论是单独或联同其有联系者于某联权共有账户)；
(iii) a corporation that falls within the description in paragraph (c); and
符合 (c) 段描述的法团；及
(iv) a partnership that falls within the description in paragraph (c)
符合 (c) 段描述的合伙。
RISK DISCLOSURE STATEMENTS
This risk disclosure statement does not purport to disclose or discuss all of the risks, or other significant aspects, of conducting transactions or of the transactions conducted. In light of the risks involved, you (i.e. Client) should undertake a transaction only if you understand its nature, the contractual relationship into which you are entering, and the nature and extent of your exposure to risk. You should also consider whether a transaction is appropriate for you in light of your experience, objectives, financial resources and other relevant circumstances. While Eternal Pearl proposes to give this general risk warning, it is not acting as your financial advisor and you shall not regard Eternal Pearl as so acting. You should consult your own independent legal, tax or financial advisors prior to entering into any transaction.
RISK OF SECURITIES TRADING证券交易的风险
1. The prices of securities fluctuate, sometimes dramatically, and that the price of a security may move up or down, and may become valueless. It is as likely that losses will be incurred rather than profit made as a result of buying and selling securities.