HKFA Clearing Limited
Terms and Conditions
The following terms and conditions (as may be supplemented from time to time) apply to all accounts opened and maintained with HKFA Clearing Limited ("HKFA Clear").
1.1 In this Terms and Conditions, the following words and expressions shall have the meanings set out hereunder unless the context otherwise requires:
"Account" means the account of the Customer maintained with HKFA Clearing Limited;
"Applicable Laws" means all relevant or applicable laws, rules, regulations, notices and circulars (whether of governmental bodies or authorities) applicable in Hong Kong or elsewhere;
"Application Form" means the application form, both online and offline, provided by HKFA Clear to the Customer in accordance with its general operating procedures for the application by the Customer to open an Account;
"Asset" means the merchandise, commodities, physical assets or any other products subscribed for or purchased by the Customer;
"Authorised Trading Platforms" means China International Assets and Equity of Artworks Exchanges (CIAEx), HKDAEx Limited (HKDAEx) and any other trading platforms authorised by HKFA Clear from time to time.
"Custodian" means a custodian (whether in Hong Kong or otherwise) appointed by HKFA Clear from time to time in respect of any Asset subscribed for or purchased by the Customer;
"Customer" means any person or persons who hold(s) and operate(s) an Account with HKFA Clear and includes the successors in title or legal representatives, whichever is applicable, of the Customer;
"HKFA Clear" means HKFA Clearing Limited;
"Loss" means any and all loss, damage, costs (including cost of funding), charges and expenses of whatsoever nature and howsoever arising, including legal fees on a full indemnity basis;
"Officer" means any officer or employee of HKFA Clear;
"Order" means any verbal, written authorisation, request, instruction or order (in whatever form and howsoever sent) given or transmitted to HKFA Clear by the Customer or which HKFA Clear or an Officer reasonably believes to be the authorisation, request, instruction or order of the Customer, and includes any authorisation, request, instruction or order to revoke, ignore or vary any previous authorisation, request, instruction or order;
"Parties" means HKFA Clear and the Customer;
"Person" includes any individual, government, statutory body, business, firm, partnership, corporation or unincorporated body;
"Relevant Regulator" means any governmental or regulatory authority in Hong Kong;
"Service Fees & Charges Schedule" means the schedule containing the fees and charges as imposed by HKFA Clear on the Customers as may be amended from time to time and communicated with Customers by whatever means of communication as agreed; and
"Transaction" means any transaction, including applications for, acquiring, transferring and disposal of any Assets, effected by the Customer.
1.2 Any reference to a statutory provision shall include such provision as may from time to time be modified, amended or re-enacted so far as such modification, amendment or re-enactment applies or is capable of applying to any Transaction.
2. SCOPE AND APPLICATION
2.1 By opening an account with HKFA Clear, the Customer acknowledges and agrees that they are bound by the terms and conditions herein. This Terms and Conditions shall apply to the provision by HKFA Clear to the Customer of all transaction facilities and services in respect of all Assets under the Account.
2.2 HKFA Clear reserves the right to add to, amend or vary any the terms and conditions herein at any time in its sole and absolute discretion and any additions, amendments or variations (the "Amendments") shall take effect and bind each Customer from such date as HKFA Clear may prescribe.
2.3 The Customer acknowledges that Transactions effected by HKFA Clear on the Customers behalf are subject to the laws, regulations, by-laws, rules, customs, usage, rulings and interpretations and transaction levies of the relevant market, exchange, clearing house or jurisdiction as amended from time to time.
2.4 The Customer hereby gives to HKFA Clear absolute discretion to effect Transactions. HKFA Clear may act on instructions given electronically, verbally or in written form which HKFA Clear reasonably believes to have come from the Customer or to have been given on the Customers behalf. HKFA Clear will not be under any duty to verify the authority of the person(s) giving those instructions. HKFA Clear will act as the execution agent and/or provide other services, as the case maybe.
3. GENERAL CONDITIONS / APPOINTMENT OF CUSTODIAN
3.1 The Customer authorises, consents and agrees to the disclosure by HKFA Clear and/or any of its Officers or agents, at any time and from time to time, of any or all information in respect of any particulars of the Customer, the Transactions or the Account to any Person as HKFA Clear may, in its sole and absolute discretion, deem fit, appropriate or necessary, or when such disclosure is made in accordance with Applicable Laws.
3.2 The Customer shall not, without the prior written consent of HKFA Clear, assign, charge or encumber any Account or the Customers rights therein, or create or permit to create, in favour of any Person (other than HKFA Clear) any interest by way of trust or otherwise in any Account. HKFA Clear shall not be required to recognise any Person other than the Customer as having any interest in any Account.
3.3 Without prejudice to the above but subject to compliance with Applicable Laws, HKFA Clear may, when necessary and at its sole and absolute discretion, hold all Assets for which the Customer has subscribed or purchased, on behalf of the Customer as custodian. If so instructed by a Customer, HKFA Clear shall also be entitled to place any monies or other monies deposited by such Customer with HKFA Clear in an omnibus account to be held on trust on behalf of such Customer. In acting as custodian for the Customer, HKFA Clears sole duty shall be to take care of such Assets and cash as it would in respect of similar properties or assets belonging to HKFA Clear. Without prejudice to the preceding, HKFA Clear shall be under no responsibility or obligation to take any action or notify the Customer in respect of any Assets and cash unless otherwise instructed by the Customer.
3.4 HKFA Clear is hereby irrevocably authorised by the Customer to appoint a Custodian or more than one Custodian (in Hong Kong and/or outside Hong Kong) for any period of time to hold any and/or all of the Assets subscribed for or purchased on behalf of the Customer. As long as HKFA Clear exercises good faith and uses reasonable care in the selection and continued appointment of the Custodian, HKFA Clear shall have no responsibility for or obligation in respect of the performance by the Custodian of any of the duties delegated to it by HKFA Clear in relation to the Account or any Asset held by the Custodian on behalf of the Customer.
3.5 Where custody services are provided to the Customer either by HKFA Clear or the Custodian, the Customer shall pay to HKFA Clear such fees and other costs, charges and expenses as may be imposed by HKFA Clear in its sole and absolute discretion from time to time in respect of these services provided HKFA Clear gives prior written notice to the Customer by sending the relevant Fee Schedules to the Customer by post, fax, electronic mail or other means as may be agreed by the Customer, and hereby authorises HKFA Clear to debit the Account for all such fees, costs, charges and expenses.
3.6 The Customer acknowledges and consents to the fact that any Assets and cash belonging to the Customer held with the Custodian or HKFA Clear may be held with assets and cash held for other customer of the Custodian or HKFA Clear on an aggregate or omnibus basis (where not prohibited by law). The Customer understands that Assets and cash held on an aggregate or omnibus basis may not be specifically identifiable by separate certificates, other physical documents or equivalent electronic records. HKFA Clear shall keep and maintain records of the respective Customers interest in any Assets and cash which have been held on an aggregate or omnibus basis.
3.7 HKFA Clear may engage or appoint any Person (who is not an Officer or related to HKFA Clear) to carry out any Order or to exercise any authority granted to HKFA Clear by the Customer whether under this Terms and Conditions or otherwise. In making such engagement or appointment, HKFA Clear shall not be liable to the Customer for any Loss suffered or incurred by the Customer as a result of any act or omission of such Person.
3.8 The Customers relationship with HKFA Clear, the operation of the Account and the implementation of all Orders or the execution of services requested by the Customers shall be subject at all times to the Applicable Laws. HKFA Clear may take or refrain from taking any action whatsoever, and the Customer shall do all things required by HKFA Clear, in order to procure or ensure compliance with Applicable Laws.
3.9 The Customer hereby agrees to ratify and confirm all Transactions and all acts and things done or caused to be done or effected by HKFA Clear and/or the Custodian on the Customers behalf in relation to the Account or the Assets held on behalf of the Customer and agrees that such Transactions, acts and/or things done shall also be governed by this Terms and Conditions.
3.10 The Customer agrees that all monies (including any monies in the omnibus account maintained with HKFA Clear or the Custodian) and/or Assets and/or all other property of the Customer in HKFA Clear or the Custodians custody shall be subject to a general lien in favour of HKFA Clear for the discharge of all or any indebtedness and other obligations of the Customer to HKFA Clear. The Customer shall not be entitled to withdraw any monies or withdraw or dispose of such Assets held by HKFA Clear pending the repayment or satisfaction in full to HKFA Clear of any indebtedness or obligation of the Customer to HKFA Clear.
3.11 HKFA Clear shall be entitled, without notice to the Customer, to set-off any debts owing by the Customer against any amounts due to the Customer whether the debts are actual or contingent and irrespective of any differences in currency. HKFA Clear shall be entitled to effect such currency conversions and at such rates of exchange as HKFA Clear may in its sole and absolute discretion determine for the purposes of effecting such set-off.
3.12 The Customer acknowledges that as a general rule, monies of the Customer (unless refunded to the Customer), will be commingled with funds from other customers of HKFA Clear in an omnibus trust account and that administratively, it would not be practical or feasible and is economically counter-productive to attempt to allocate the respective interest entitlement (if the trust account is interest-bearing) on an individual basis in view of the constant fluctuations in the value of the collective funds in such trust account. The Customer agrees to waive and relinquish in favour of HKFA Clear any and all entitlements to interest accruing to the Customers share of funds in such trust account.
3.13 Monies received from Customers will be deposited into a segregated account maintained with an authorised financial institution in Hong Kong.
3.14 Whenever the Customer receives any statements of account, contract notes (if applicable), confirmations or notifications in respect of any Order or any document (the "Statement") provided in relation to the Account from HKFA Clear, the Customer agrees that it will inform HKFA Clear of any mistakes or omission or disagreements within seven (7) days from the date of the relevant Statement. If the Customer fails to do so, the Customer is deemed to have agreed to the contents in such Statement and will no longer have the right to dispute the accuracy of the Statement. Nothing in this Clause shall prevent HKFA Clear from unilaterally amending any such Statement for any inaccuracy it detects.
3.15 Any instructions (oral or otherwise) purported to be given by any person other than the Customer, need not be acted on by HKFA Clear or the Custodian but HKFA Clear and the Custodian are authorised to act on any and all such instructions which HKFA Clear or the Custodian believes in good faith, or has reasonable ground to believe, to have come from the Customer as soon as such instructions have been received by HKFA Clear or the Custodian without requiring written confirmation thereof. HKFA Clear and the Custodian shall not be liable for any loss, damage, cost, charge and expense incurred by the Customer as a result of HKFA Clear or the Custodian so acting.
4.1 Account Registration and Settlement Services
(a) HKFA Clear will provide account registration and settlement services to the Customer by assisting them to open accounts with the Authorised Trading Platforms. The Customers acknowledge and agree that HKFA Clear will pass the Customers information, including personal data and other particulars, to the Authorised Trading Platforms for account opening purposes. For the provision of this services, HKFA Clear will perform the Customer Due Diligence ("CDD") in accordance with Guideline on Compliance of Anti-Money Laundering and Counter-Terrorist Financing Requirements for Trust or Company Service Providers and other relevant regulations/guidelines in Hong Kong.
(b) HKFA Clear will provide settlement services to the Customers and the Authorised Trading Platform. The Customers acknowledge and agree that HKFA Clear only acts as an intermediary, and effect the settlement transactions based on the instructions from the Customer and Authorised Trading Platform.
(c) For the provision of this service, HKFA Clear will normally charge a fee in accordance with the Service Fees & Charges Schedule which specifies the fees and charges payable to HKFA Clear. In addition, HKFA Clear may be remunerated for its services by the receipt of commission and/or other services fees paid by the authorised Trading Platforms or their appointed entities.
4.2 Commodity Trading
HKFA Clear will act as a platform provider or a facilitator for commodity trading between Customers. For the provision of this service, HKFA Clear will normally charge a service fee which will be agreed mutually among the involved parties and HKFA Clear.
4.3 Commodity Warehousing Facilities and Asset Custodian Services
HKFA Clear will act as a Custodian for the Assets or commodity purchased or owned by the Customers. The Customers acknowledges and agrees that, subject to the Terms and Conditions in relation to the APPOINTMENT OF CUSTODIAN stated above, HKFA Clear will charge a custodian fee based on the Fee Schedules or a mutually agreed rate between HKFA Clear and the Customers.
5.1 The Customers acknowledges that by using our Account Registration and Settlement Services, upon successful account opening with Authorised Trading Platforms, the Customer may participate in dealing of Assets on those trading platforms which are not controlled or managed by HKFA Clear, notwithstanding they may or may not be related entities. Dealing on Authorised Trading Platform involves risks. The prices of Asset trading on the Authorised Trading Platform fluctuate, sometimes dramatically. The price of an asset 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 dealing in Asset. For details of the risk involved, please refer to the risk disclosure statement of respective Authorised Trading Platform.
5.2 HKFA Clear accepts no responsibility and will bear no liability to the Customer for giving any recommendation or advice to the Customer as to whether to have or not to have any involvement in dealing of any Asset on those Authorised Trading Platforms. The Customer acknowledges that any dealings under the account on those Authorised Trading Platforms in any such Asset is solely and exclusively made by the Customer based on the Customers own judgment and after the Customers own independent appraisal and investigation into the risks associated with such dealings have been made.
5.3 Customer acknowledges that his/her assets received or held by the Custodians outside Hong Kong are subject to the applicable laws and regulations of the relevant overseas jurisdiction which are different from the laws of Hong Kong and the rules made thereunder. Consequently such assets may not enjoy the same protection as that conferred on the Customers assets received or held in Hong Kong.
5.4 The Customer acknowledges and agrees that the currency denomination of the Authorised Trading Platforms may be denominated in a currency other than Hong Kong Dollar; thus the Customer may be affected by exchange rate fluctuations where there is a need to convert Hong Kong Dollar to the currency denomination of the Authorised Trading Platforms or vice-versa.
6. CHANGE OF PARTICULARS
6.1 The Customer agrees and undertakes to notify HKFA Clear immediately of any change in the particulars of the Customer, or any information supplied to HKFA Clear. HKFA Clear shall at all times be entitled to rely on the records provided by the Customers upon the Account opening unless any change in the particulars therein have been notified to HKFA Clear. HKFA Clear shall not be liable or responsible for any Loss suffered or incurred by the Customer or any other Person by reason of any error or omission in the Account opening process.
7. MONEY LAUNDERING
7.1 The Customer hereby warrants that:
(a) the Customer is the underlying principal of the Account;
(b) no person other than the Customer has or will have any interest in the Account; and
(c) all monies as may be paid to HKFA Clear from time to time shall come from a legitimate (and not illegal) sources.
7.2 The Customer agrees to provide all such information and documents as may be necessary to verify the Customers identity and do all such acts and things as may be necessary to enable HKFA Clear to comply with all applicable anti-money laundering and know-your-customer laws, rules and regulations (whether in Hong Kong or elsewhere), including but without limitation to the Anti-Money Laundering and Counter-Terrorist Financing Ordinance ("AMLO"). The Customer agrees that HKFA Clear shall not be liable or responsible in anyway whatsoever and shall be held harmless against any loss arising as a result or in connection with any delay or failure to process any application or transaction if such information and document requested by HKFA Clear have not been promptly provided by the Customer to HKFA Clear.
7.3 HKFA Clear shall upon the request of Relevant Regulators disclose the name, beneficiary identity and such other information concerning the Customer as they may request or require. The Customer undertakes to disclose such other information concerning itself to HKFA Clear within the time HKFA Clear specified as may be required for HKFA Clear to comply with the Applicable Laws, rules, regulations and requirements of the Relevant Regulators. The Customer irrevocably authorises HKFA Clear to make any of such disclosure.
8. GENERAL INDEMNITY
8.1 In addition and without prejudice to any other right or remedy of HKFA Clear (at law or otherwise) the Customer shall indemnify and hold HKFA Clear harmless from and against any and all Loss suffered or incurred by HKFA Clear as a result of: -
(a) any failure by the Customer to comply with this Terms and Conditions;
(b) HKFA Clear acting in accordance with the Orders or in any manner permitted under this Terms and Conditions;
(c) any change in any Applicable Laws; and/or
(d) any act or thing done or caused to be done by HKFA Clear in connection with or referable to this Terms and Conditions or any Account or the instructions of the Customer.
The Customers obligation to indemnify HKFA Clear shall survive even after the termination of the Account.
9. GENERAL EXCLUSION AND LIMITATION OF LIABILITY
9.1 In addition and without prejudice to any other right or remedy which may be available (whether under this Terms and Conditions or under Applicable Laws), and in the absence of fraud on the part of HKFA Clear, neither HKFA Clear nor the Custodian nor their respective officers, servants, agents or employees shall be liable to the Customer in any respect for any Loss suffered by the Customer, including but not limited to any Loss arising out of any of the following:
(a) any reliance by the Customer on any information and/or reports which are incomplete, inaccurate, corrupted, untrue or out-of-date, notwithstanding that such information and/or reports may or may not have been customised for the use of the Customer, where such information and/or reports have been prepared, compiled or produced by any party, received by HKFA Clear in good faith and forwarded to the Customer by HKFA Clear or made available through the Electronic Services;
(b) any delay, failure or omission in the execution of the Orders of the Customer due to any reason beyond the control of HKFA Clear; or
(c) any act or failure to act, in HKFA Clears discretion, on relaying, processing, checking or verification of a Transaction and/or Order.
The Customers obligation to indemnify HKFA Clear shall survive even after the termination of the Account.
10. INTERPRETATION AND GOVERNING LAW
10.1 This Terms and Conditions, any Account, and the relationship between the Customer and HKFA Clear and the rights and obligations stipulated thereunder, shall be governed by and be construed in accordance with the laws of Hong Kong. The Customer and HKFA Clear submit to the non-exclusive jurisdiction of the courts of Hong Kong.
11.1 In case of any inconsistencies between the English version and the Chinese version of this Terms and Conditions, the Application Form or any other document or notice provided by HKFA Clear to the Customer under or in connection with this Terms and Conditions, the English version shall prevail to the extent of such inconsistencies.
12.1 HKFA Clear is not an independent intermediary because HKFA Clear receives fees, commissions, or other monetary benefits from other parties (which may include connected trading platforms) in relation to the services provided by HKFA Clear to the Customers.
13.1 Either Party may terminate the Account by giving the other 7 days notice.
13.2 Termination of the Account shall in no way prejudice or affect any rights HKFA Clear may have against the Customer under this Terms and Conditions or under Applicable Laws.
13.3 Notwithstanding the above, HKFA Clear shall be entitled to terminate or suspend the Account, immediately and without notice to the Customer, on the happening of any of the following events:
(a) the Customer fails to comply with any of its obligations hereunder or under any Account or Transaction;
(b) where applicable, the Customer ceases, or threatens to cease, to carry on business;
(c) any of the Customers representations, warranties or statements hereunder or in the Application Form or in any document delivered pursuant to the Account has not been complied with or is incorrect or incomplete in any respect;
(d) HKFA Clear forms the view, in good faith, that it should take action in order to preserve its rights or interests in relation to any Account or under its relationship with the Customer; or
(e) where HKFA Clear is unable, at any time or from time to time, to provide or to continue to provide its services as a result of circumstances beyond HKFA Clears control.
In the event that the Account is terminated by either Party, HKFA Clear shall deduct from the Account the sum of any relevant Service Fees to satisfy any monies due from the Customer to HKFA Clear or in connection with the Account or any Transaction effected thereunder.
This Terms and Conditions may be revised or supplemented from time to time. Clients should refer to its latest version on HKFA Clears website for reference.