General Conditions

By using NET Banking, you agree to these Conditions (being the General Conditions and the Specific Conditions - see below). Please read them carefully, particularly General Conditions 3 (Your Logon ID and Password) and 4 (Limit of our liability) below.

"You" and "your" mean a NET Banking customer. "We", "us" and "our" refer to CMB Wing Lung Bank Limited, Wing Lung Securities Ltd. or the Bank's other subsidiaries.

1. Introduction

1.1 NET Banking is an automated service which allows our customers to access financial services through the internet. We may from time to time vary the services available on NET Banking, the operations of NET Banking or the daily cut-off times, or suspend or withdraw NET Banking, without notice or responsibility to you.
1.2 NET Banking is only available in the places where we are authorized to providing the relevant services.
1.3 Before you can access NET Banking, you must sign an application and obtain in person your Password from our designated office. We may reject your application, without giving any reason. It is important for your protection that you immediately change your Password after you have accessed NET Banking for the first time.
1.4 Two-factor authentication by using a security token prescribed by us is mandatory to access NET Banking. You will comply with our procedures for collecting and activating a security token as required. You may request to replace a security token if it malfunctions, runs out of battery or is lost. We will impose a service charge where the old token is physically damaged, lost or if you fail to return the token to us upon termination of your NET Banking service. You will not temper with, copy, exploit or otherwise deal with the security token except using it to access a service provided by us.
1.5 If you are an individual, you agree that we may use and disclose your personal data (collected by us at any time) for the purposes (including matching procedures, as defined in the Personal Data (Privacy) Ordinance) and to the persons (in or outside Hong Kong) as referred to in our current statement or policy on personal data.

2. NET Banking

2A E-Statements / E-Advices
2A.1 E-Statements / E-Advices of account(s) (if applicable) will be available for review and download on our web site and / or sent to your designated email address in a secure manner, and will be regarded to have been delivered to you upon posting on our web site or sent electronically.
2A.2 If you elect to receive E-Statements / E-Advices, paper statements / advices will not be sent.  E-Statements / E-Advices will remain accessible on our web site for the period(s) determined by us.  Our records of their contents will be binding on you.  These provisions supplement and should be read together with our General Conditions for Accounts, but prevail over the General Conditions for Accounts to the extent of inconsistency.
2.1 Messages sent through NET Banking shall be treated as if they had been made in writing and signed by the sender. The parties waive any rights to contest the validity or enforceability of a contract effected through NET Banking on the ground that it was effected electronically.
2.2 We may regard your instructions as received by our computer system as being what you intended to send. We may regard your instruction (which duplicates another instruction) as a separate instruction, unless we actually knew that it was a duplicate.
2.3 As between the parties, a contract effected through NET Banking is concluded in Hong Kong and at the time when our final confirmation (showing a transaction number) of your instructions is dispatched by our computer system. If you do not receive such confirmation, you must subsequently check on the page "Net Transaction History" on the NET Banking web site.
2.4 In general, an instruction once given and accepted cannot be altered or cancelled. However, an instruction to sell or buy securities may be altered or cancelled before execution.
2.5 Our computer data records of NET Banking transactions and messages (including applicable exchange rates) are, save to the extent of manifest error, conclusive and binding on you. You agree that they shall be admissible in the courts as evidence of the existence of the transactions and messages, and of the facts contained therein, to the extent permitted by applicable law. Transactions and messages as shown on your computer are for your reference only.
2.6 NET Banking is an automated system. All your instructions will be processed automatically by our computer system, without opportunity for oversight. You agree that any manual processing, for example, to complete a cashier order which you have purchased through NET Banking, will be a purely administrative task.
2.7 You are regarded as having received a communication when it is dispatched by our computer system or posted on our NET Banking web site. The dispatch and receipt of communications through NET Banking are regarded to take place in Hong Kong.
2.8 You will not use NET Banking for any purpose other than to access an available service. You shall ensure that the content of a message sent by or on your behalf through NET Banking is not inconsistent with applicable law.
2.9 If your instruction has not been accepted by NET Banking for any reason (for example, insufficient account balance, or after cut-off time), please try again. NET Banking will not reprocess your instruction automatically.
2.10 You will obtain and maintain at your own cost suitable computer equipment, software and connection to the internet to access NET Banking. You are responsible for all telephone, internet service and other charges incurred in using NET Banking. We will not be responsible for any inability to access NET Banking, or any incorrect representation of NET Banking on your screen, arising from your equipment, software or connection.
2.11 We may download certain information including your identification data to your computer or access device, if allowed under our Privacy Policy statement.
2.12 These Conditions are additional to our relevant terms and conditions governing the underlying transactions effected through NET Banking.

3. Your Logon ID and Password

3.1 They are important means of protection for you.  You agree to use all reasonable care to keep them secret to yourself and where we provide you with a security token, to ensure the safe keeping of the security token (or, if you are a corporate body, your authorized representative only). The term "Password" includes, where a security token has been provided, the security token and each one-time password (OTP) generated by the security token.
3.2 Where we provide you with a security token, you agree to complete its activation process within the activation period where necessary. You must follow the directions and procedures as specified by us from time to time for token activation and NET Banking access using the security token, failing which you may not be able to access NET Banking.
3.3 You shall contact us immediately by telephone at 2770 2112 if you find or believe that your Logon ID, Password or the security token has been compromised, lost or stolen or that any unauthorized transactions have occurred. You shall confirm your report to us in writing within 24 hours.
3.4 We may regard an instruction given through NET Banking by any person with the use of your Logon ID, Password as conclusively binding on you.
3.5 You will be liable for all losses if you have acted fraudulently or with gross negligence, or allowed any third party to use your Logon ID, Password, or failed to comply with your obligations under General Conditions 3.1 or 3.3. You would not otherwise be responsible for any direct loss suffered by you as a result of unauthorized transactions conducted through your account. This Condition does not apply to you unless you are a private individual (excluding sole traders, partnerships, clubs and societies), or to unauthorized transactions conducted through plastic cards which may be used to pay for goods and services or to withdraw cash.
3.6 To the extent that General Condition 3.5 does not apply, you will be liable for all instructions given with the use of your Logon ID, Password, whether or not authorized.
3.7 An instruction given by the use of your Logon ID, Password is valid and conclusively binding on you, although your mandate for the account may require a particular signature, or different signatures may be specified for different accounts.

4. Limit of our liability

4.1 A reasonable level of commercially available security and encryption measures have been provided for NET Banking. However, unless caused by our wilful default, we are not liable for:
a. any instruction which is not actually received by us, whether by reason of malfunction in computer or communications facilities or otherwise;
b. any delay or interruption in accessing NET Banking, or the timely execution of instructions which are not given to us in time;
c. any inability to access NET Banking;
d. (subject to Condition 3.5) any unauthorized interception, corruption or loss of messages sent through the internet, or any unauthorized access to NET Banking;
e. any error in NET Banking; or
f. any computer virus or similar problems arising in connection with NET Banking.

4.2 We shall in no event be liable for any loss, damage or expense for not providing two-factor authentication for any services or transactions.
4.3 We are in any event not liable for any indirect, special, incidental or consequential damages arising from the use of or inability to use NET Banking.
4.4 Any information available on NET Banking is provided for your reference only. We are not responsible for its accuracy, completeness or timeliness, or for any decision made with the information.
4.5 Hyperlinks to other sites are provided for your convenience only. They are not our recommendation or endorsement of the other sites. We are not responsible for the contents of the other sites, and have not verified them.
4.6 If we are found to be liable for any damages, our liability shall be limited to the amount of the relevant transaction or, if less, your direct damages.
4.7 We cannot be responsible to recover a payment which you have made to a third party through NET Banking, or to resolve a dispute between you and the third party.
4.8 These limits of our liability do not apply if we are negligent or guilty of wilful misconduct.

5. Changes to Conditions

5.1 We may change these Conditions at any time, by posting a notice on the NET Banking web site 30 days before the change takes effect.
5.2 You will abide by the latest current version of these Conditions, although you may have received a previous version at the time of your application to access NET Banking.
5.3 We may impose or vary fees and charges for using NET Banking including charges for a security token. Fees and charges may be debited from your accounts with us.

6. Termination

6.1 You may terminate your use of NET Banking at any time by notifying us. This will not terminate your accounts with us. Where we have provided you with a security token, you must return the security token to us upon such termination.
6.2 We may terminate your use of NET Banking at any time, without giving any reason. Our notice of termination dispatched through NET Banking or made available on an attempted access with your Logon ID and Password shall have immediate effect.
6.3 Termination of the use of NET Banking will not affect any accrued rights. Condition 2.5 shall survive termination.

7. General

7.1 You agree to comply with the operational instructions from time to time in force for NET Banking. These instructions may be viewed by clicking on the "Help" button. Please read these instructions, which set out fees and charges, and may affect your rights and obligations.
7.2 The NET Banking web site is hosted by us and is connected to the internet via an independent service provider, which is not our agent for any purpose.  We have used reasonable efforts to appoint a reputable provider, but otherwise do not assume any responsibility in respect of the provider.
7.3 All holders of a joint account are jointly and severally responsible to us for an instruction given through NET Banking in respect of the account. Any requirement in the mandate for joint signatories shall be regarded as satisfied by the use on NET Banking of the correct Logon ID and Password for the account.
7.4 Changes in the authorized signatory of your account will not affect operation through NET Banking by using your Logon ID and Password. If you wish, you must change your Password immediately.
7.5 If any Condition or part thereof is invalid, all other Conditions shall remain in full force and effect.
7.6 These Conditions, and all transactions effected through NET Banking, are governed by the law of the Hong Kong Special Administrative Region. The parties submit to the non-exclusive jurisdiction of the Hong Kong courts.
7.7 Headings are for ease of reference only. "Our computer system" refers only to the computer equipment and software which are operated under our sole control. Words importing the singular include the plural and vice versa. "Including" is not a word of limitation.
7.8 The English version of these Conditions prevails over the Chinese version.

The Specific Conditions may be found on the NET Banking web site as part of the Conditions, appearing immediately after the General Conditions. These Specific Conditions are deemed incorporated herein.

Effective: July 2008
CMB Wing Lung Net Banking
 

 

Specific Conditions

1. Securities

1.1 Different services for securities transactions ("Securities Services") may be provided by us from time to time. The current Securities Services are placing orders for the sale and purchase of securities listed on the Stock Exchange of Hong Kong Limited ("Exchange"); enquiry of securities prices and indexes, the status of an instruction, and securities and settlement accounts balance.
1.2 We may be unable to accept a request for Securities Services for a number of reasons including where trading on the Exchange ceases for whatever reason on any day.
1.3 For all transactions relating to securities, we are only acting as your agent and nothing herein constitutes us or our nominee as trustee for you nor constitutes a partnership relationship between us and you.
1.4 Notwithstanding anything herein, we may without giving any reason therefor not accept your instructions relating to securities.
1.5 Information accessible on NET Banking which is provided or complied by the Exchange or Stock Exchange Information Services Ltd. ("SEIS") is subject to the Market Datafeed Service Agreement. Under that agreement, SEIS may issue directions to us from time to time. We may comply with such directions and the provisions of that agreement. You agree that you will enable us to do so.
1.6 The Exchange endeavours to ensure the accuracy and reliability of the information provided. But the Exchange and we do not guarantee the accuracy or reliability of any information, and accept no liability (whether in tort or contract or otherwise) for any loss or damage arising from any inaccuracies or omissions.
1.7 You shall not, without the prior written approval of SEIS (such approval not to be unreasonably withheld) disseminate any information provided by it or the Exchange or any part thereof to any other person.
1.8 You shall not use or permit the use of such information or any part thereof for any illegal purpose.
1.9 You shall not use such information or any part thereof other than in the ordinary course of your own business (which shall not include dissemination to third parties).
1.10 You shall not use such information or any part thereof to establish, maintain or provide or to assist in establishing, maintaining or providing any trading floor or dealing service for transactions outside the Exchange.
1.11 You shall comply with such directions as SEIS may reasonably require from time to time concerning permitted use of the information provided by SEIS or the Exchange.
1.12 You agree that we may provide to SEIS:
a. statements as to your name and the name or nature of the service by which you received information, the number of persons or devices (and its type) permitted by you to access information within and outside Hong Kong; and
b. your name and address in the event that we or SEIS suspects that you breach the provisions in the Market Datafeed Service Agreement relating to your use of information.

1.13 You agree to permit SEIS and us to inspect your premises and records, to satisfy SEIS that the licence fees in your respect are properly accounted for, or that you are not using information contrary to the provisions of the Market Datafeed Service Agreement.

2. Remittance Services

2.1 An instruction to transfer funds received after our daily cut-off time will be debited to your account at the time the instruction is received, and be processed for transfer on our next banking day (excluding Saturdays and the days on which banks in the main financial center for the currency and, where relevant, our overseas office are not open for business). A payment for same day value is also subject to applicable cut-off time at its destination. Date of value is dependent on the geographical location of the destination and is subject to our discretion. We may from time to time vary the daily cut-off time without notice or responsibility to you.
2.2 We need not make any payment from your account if there are insufficient available funds for a full payment. If a transfer is made without sufficient available funds, you will repay to us on demand the resulting debit together with interest thereon at the rate determined by us.
2.3 Funds will be remitted to a foreign place in the particular currency as instructed by you. Another currency conversion may take place at the payment destination according to the practice of our correspondent or the beneficiary's bank. A draft or cashier order may be drawn on another city by reason of our operational requirements. The holder of the draft or cashier order is responsible for due presentment and protest. Charges will be deducted before payment to the beneficiary. You remain responsible for all charges of our correspondents, agents and ourselves. All charges paid are not refundable. We and our correspondents and agents owe no duty to the beneficiary and any nominated order party.
2.4 Payment of a draft or cashier order may be refused if it has in any way been altered or mutilated.
2.5 Requests to stop or vary a payment or for a refund will only be processed after production of satisfactory document of identity and authorisation including evidence of loss (where applicable) and an indemnity satisfactory to us. We are not responsible if the payment cannot be stopped or varied. A refund may only be made after our correspondent has confirmed that the payment instruction has been effectively cancelled. A refund may be made in Hong Kong dollars at our buying rate for the payment currency if the payment currency is not Hong Kong dollars, less all charges.
2.6 You agree to accept consequences arising from your own omission to give complete and accurate particulars of your identity including the loss of right for refund and that we shall not be accountable to you for the refund in the event that your identity cannot be verified to our satisfaction. We shall not be liable for any loss caused by any incorrect or incomplete information provided by you.
2.7 If the outward remittance cannot be processed by the details provided by you, we reserve the right not to accept an application for the purchase of the outward remittance at our sole discretion.
2.8 We need not act on any instruction if it is not, in our opinion, practicable or reasonable to do so. We may decline to act on your instructions without giving any reason and without any liability.
2.9 We may send any message relative to the telegraphic transfer in explicit language, code or cipher and at your sole risk. We shall not be liable for any delay, misunderstanding, misinterpretation, errors, neglect or defaults which may occur in the transmission of the message or otherwise.
2.10 Unless caused by our wilful misconduct, we are not liable for any delay, error, loss, corruption or unauthorized interception of any messages sent by us or our correspondents or agents.
2.11 We are not liable for any loss caused by any act or omission of our correspondents or agents or any government or third party, or any circumstances beyond our reasonable control. We are not obliged to account for you if our relevant office or any correspondent or agent concerned is prevented from making payment to or for you.
2.12 We cannot be responsible to recover a payment you have made to another person, or to resolve a dispute between you and that person.
2.13 We are in any event not liable for any indirect, special, incidental or consequential damages arising from the use of or inability to use our remittance service.
2.14 These limits of our liability operate to the extent permitted by applicable laws.

3. Foreign Exchange Transactions

3.1 If there are insufficient funds in your account to settle a foreign exchange transaction ("Transaction"), we may at our option at any later time apply the full amount of the currency bought by you to purchase the currency ("Currency X") payable by you at our spot rate for selling Currency X at the time of such application. If the amount of Currency X so purchased is less than the amount payable by you under the Transaction, you will on demand pay to us the shortfall. We are not liable for any loss suffered resulting directly or indirectly from any instructions not carried out by us due to insufficient funds in your account. Notwithstanding such shortage of funds, we may at our sole discretion carry out any instructions without prior approval from or notice to you, and you are fully responsible for any resulting overdraft, advance or debit.
3.2 Any rate or other quotation provided by us is only indicative, unless otherwise expressly stated, and may be changed without notice until we have confirmed acceptance of your offer. Unless otherwise expressly stated, the prices payable by you do not include, and you will in addition pay, applicable fees and expenses.
3.3 We will provide you with on-line advice or confirmation that an instruction has been received and/or a transaction has been effected. You are deemed to have received such advice or confirmation immediately after transmission and it is your duty to check such advice or confirmation.
3.4 We are entitled to effect any payment and to require you to effect any payment in any currency as we may prescribe. Where a conversion of one currency into another currency is required, such conversion shall be effected at the rate determined by us to be prevailing in the relevant exchange market at the relevant time, such determination to be conclusive and binding on you. We are not liable for any exchange rate losses resulting from any such foreign exchange transactions and dealings.
3.5 It is your responsibility to determine independently market prices and rates, to verify any information and/or report before replying or acting on it and to seek independent professional advice on legal, tax and other issues in connection with any information we provide, these terms and conditions, and any transactions and dealings.

4. Trading in Foreign Exchange and Foreign Exchange Margin Trading Account(s)

4.1 Interpretation and Purpose
4.1.1 Words and phrases in these General Terms and Conditions shall be read and construed in accordance with the definitions and provisions contained in the Schedule. Where the context permits, the singular includes the plural and vice versa, the masculine includes feminine and neuter and vice versa.
4.1.2 This Agreement sets out the terms and conditions on which the Bank may enter into FX Contracts with Customers or arrange the entry into of such FX Contracts on behalf of Customers.
4.2 Terms and Conditions of FX Contracts
4.2.1 Unless otherwise expressly agreed to the contrary by the Bank in writing, all FX Contracts entered into between the Bank and the Customer from time to time shall be subject to (i) the terms and conditions of the Contract Documents; (ii) these General Terms and Conditions; and (iii) the Market Practice; and if there is any conflict between the above, (i) shall prevail over the others; and (ii) shall prevail over (iii).
4.3 Initial Cash Margin and Additional Cash Margin
4.3.1 Unless otherwise agreed by the Bank, prior to the entering of any FX Contract, the Customer shall pay the Bank an Initial Cash Margin in such amount and in such manner as the Bank may in its absolute discretion determine.
4.3.2 The Bank shall be entitled from time to time and at any time to demand the Customer to pay to the Bank Additional Cash Margin for any outstanding FX Contract (notwithstanding that the Value Date thereof has passed) in such amount and in such manner as the Bank may determine in its absolute discretion, and the Customer shall immediately pay to the Bank such Additional Cash Margin. Irrespective of whether a demand has been made by the Bank or not, the Customer shall pay and maintain at all times the Cash Margin in accordance with the Bank's requirements in respect thereof advised to the Customer from time to time.
4.3.3 All Cash Margin shall be paid to the Bank (and credited to the FX Margin Trading Account) as a deposit for the performance by the Customer of all the FX Contracts of the Customer from time to time outstanding and the Bank may apply the same in accordance with Clause 4.13.
4.3.4 Subject to the absolute discretion of the Bank not to pay any interest, the Bank may pay interest to the Customer on the balance of the Cash Margin for the time being. Such interest shall be calculated at such rate and in such manner as the Bank may determine from time to time in its absolute discretion and be credited to the Customer's FX Margin Trading Account semi-annually in June and December.
4.3.5 The Bank's requirements in respect of Cash Margin shall be advised to the Customer from time to time. Until otherwise advised, the requirement shall be 7% of FX Indebtedness which for the avoidance of doubt shall include the amount conclusively certified by the Bank at any time to be the amount which would at any time be payable to the Bank on Close-out of all FX Contracts between the Bank and the Customer.
4.3.6 For the purpose of calculating the amount of Cash Margin actually held by the Bank, amounts credited to the FX Margin Trading Account shall increase the amount of Cash Margin held and amounts debited to the FX Margin Trading Account shall reduce the amount of Cash Margin held.
4.4 Conclusion of FX Contracts
4.4.1 Notwithstanding this Agreement, the Customer agrees and acknowledges that the Bank has reserved the absolute right at any time without giving any reason therefor not to enter into any FX Transaction with or to accept any order for sale or purchase of FX from the Customer.
4.4.2 Subject to Clause 4.4.1, any order for sale or purchase of FX and any instruction of whatever nature relating to any FX Transaction may be given by the Customer by telephone in the manner and on the terms as provided in Clause 4.4.4; and such order if accepted by the Bank and such instruction if acted on by the Bank shall be absolutely and conclusively binding on the Customer.
4.4.3 All orders and instructions given by telephone will only be valid and effective if received by the Bank within the Business Hours on a Business Day.
4.4.4
a. The Bank shall on request by a Customer allocate to the Customer a Personal Identification Number and for any order or instruction given by telephone:-
 
(i) the Personal Identification Number of the Customer and the relevant FX Margin Trading Account Number shall be quoted; and
(ii) the order or instruction shall be made at any of the Designated Telephone Number(s)
Provided always that the Bank may but shall in general not be under any duty to enquire as to the identity of the caller giving such order or instruction by telephone and (subject to Clause 4.4.4(d)) irrespective of whether or not the quoting of the Personal Identification Number is authorized by the Customer, the Bank shall be entitled to act on the same and the Customer shall be bound thereby conclusively and absolutely
b. For any FX Contract entered into by telephone, the contract shall be deemed concluded at the time of the relevant telephone conversation.
c. The Customer has the obligation to take reasonable steps to keep the Personal Identification Number secure and secret. The Customer shall inform the Bank as soon as reasonably practicable after it/he/she finds or believes that the Personal Identification Number has been compromised, lost or stolen, or that unauthorized transactions have been conducted over its/his/her FX Margin Trading Account.
d. For any FX Contract entered into by telephone, the Customer (i) (if a private individual) will be liable for all losses if he/she has acted fraudulently or with gross negligence (including cases where the Customer knowingly allows the use by others of the Personal Identification Number or fails to follow the safeguards set out in paragraph (c) if such failure has caused the losses), but the Customer would not otherwise be responsible for any direct loss suffered by the Customer as a result of unauthorized transactions conducted through the Customer's FX Margin Trading Account, and (ii) (in any other case) will be liable if the Personal Identification Number has been correctly quoted.

4.4.5 An offer by the Customer to enter into a FX Contract, once made, shall be irrevocable and binding upon the Customer.
4.4.6 The Customer acknowledges that rates for FX may fluctuate in a very short period of time and agrees that any rate quoted by the Bank whether verbally, by telephone or otherwise shall not be binding on the Bank unless reconfirmed by the Bank at the time of its actual receipt of the Customer's notification of acceptance of such rate.
4.4.7 A confirmation in writing for all FX Contracts concluded by telephone will be sent by the Bank to the Customer as a matter of record on the Business Day following the day of the conclusion of the FX Contract concerned and if the Customer does not receive such confirmation by the close of business three Business Days after the date of conclusion of the FX Contract concerned, the Customer shall notify the Bank by telephone immediately and then followed by a written notice within seven days. If the Customer fails to do as aforesaid, the Customer shall be deemed conclusively to have received such Confirmation by the close of business three Business Days after the date of conclusion of the FX Contract concerned. Failure of the Bank to issue any Confirmation for any FX Contract on the next Business Day or at all will not affect the obligations of any of the parties to that FX Contract.
4.4.8 The Bank may take the opposite position to the Customer in any FX Contract and the enforceability of such FX Contract shall not thereby be affected nor shall the Bank be accountable to the Customer for any profit derived by the Bank from such FX Contract.
4.4.9 No employee of the Bank may accept appointment to give instructions to the Bank on behalf of the Customer or to enter into FX Contracts on behalf of the Customer.
4.4.10 In deciding prices for FX Contracts and on the levels of Cash Margin required hereunder the Bank shall rely on prices quoted by such reputable information provider as the Bank may from time to time select or in the event that such information is not available from such source by reference to rates conclusively determined by it in the relevant FX market.
4.5 Standing Orders and Overnight Orders
4.5.1 Standing Orders may be placed by the Customer with the Bank in the manner provided in Clause 4.4.2. The giving of a Standing Order does not oblige the Bank to enter into any FX Transaction with the Customer.
4.5.2 Unless expressly agreed otherwise by the Bank, the Customer acknowledges and agrees that a Standing Order for a specified period of time will only be carried out by the Bank during Business Hours and if no period of time is specified for a Standing Order, it will automatically lapse and be of no effect by the close of business on the day in which such Standing Order is received by the Bank.
4.5.3 The mere receipt by the Bank of any Standing Order given to the Bank in whatever manner shall not under any circumstances constitute a conclusion of a FX Contract at the specified rate stipulated in the Standing Order. A FX Transaction will only come into being upon the Bank giving to the Customer Confirmation that the Bank has entered into the relevant FX Transaction with the Customer.
4.5.4 Unless otherwise agreed in writing by the Bank, an Overnight Order shall be subject to and conditional upon the following:-
a. The only duty of the Bank is to give instruction to such correspondent, broker or agent as the Bank may in its sole and absolute discretion select for the carrying out of the Customer's order or instruction in the agreed FX Market or Markets during the effective period of the Overnight Order and such instruction may be given in the Bank's own name without any reference to the Customer and made together with instructions for the Bank's other customers and/or the Bank itself or as an unspecified part of any of the Bank's instructions to such correspondent, broker or agent.
b. The Customer agrees and accepts that due to market conditions, such correspondent, broker or agent so appointed may not be able to carry out such instruction given as provided in paragraph (a).
c. The Bank may engage correspondents, brokers and agents on their usual terms and conditions. Provided the Bank has used reasonable efforts to appoint a reputable correspondent, broker or agent, the Bank shall not be liable to the Customer for any act or omission of such correspondent, broker or agent. If the Bank so requires, the Customer shall bear the fees, commissions and reasonable expenses payable to such correspondent, broker or agent or share a pro rata portion thereof (as the case may be).
d. The Bank shall not be in any way responsible or liable for any act, omission, delay, fraud, negligence or failure of such correspondent, broker or agent so appointed or engaged.

4.6 Performance of FX Contracts
4.6.1 The Customer shall not be required and shall not require the Bank to effect delivery of FX pursuant to FX Contracts entered into with the Bank. All FX Contracts shall be liquidated by Closing-out. Subject to Clause 4.4.1 and to concluding an appropriate FX Contract with the Bank, the Customer may Close-out any outstanding position (notwithstanding that the Value Date of the FX Contract has passed) by executing liquidating contracts at any time. The net balance representing the profit or loss will, if it is a currency other than U.S. Dollars, be converted into U.S. Dollars at the rate specified in Clause 4.9.1 and credited or charged to the Customer's FX Margin Trading Account on the Value Date of the liquidating contract concerned.
4.6.2 If at any time there are not sufficient funds in the Customer's FX Margin Trading Account, the Customer undertakes to repay the Bank immediately on demand such amount as may be due to the Bank together with interest thereon at such rate as the Bank may determine from time to time absolutely in its own discretion.
4.7 Interest and Charges
4.7.1 Interest shall be paid respectively by the Bank and the Customer to each other as follows from and including the Value Date up to but excluding the date of the liquidation of the FX Contract concerned:-
a. from the Customer to the Bank in the currency of and on the amount due to the Bank by the Customer at the prevailing debit interest rate of the currency concerned quoted and determined by the Bank absolutely at the time of calculation;
b. from the Bank to the Customer in the currency of and on the amount due by the Bank to the Customer at the prevailing credit interest rate of the currency concerned quoted and determined by the Bank absolutely at the time of calculation; and
c. the amounts referred to in paragraphs (a) and (b) will to the extent necessary be converted into U.S. Dollars at the rates specified in Clause 4.9.1 and the net amount will be credited to or charged to the FX Margin Trading Account at the end of each Business Day.

4.7.2 All interest as provided above shall be calculated on the actual number of days elapsed in a year of 365 days in case of Hong Kong Dollars and Pounds Sterling and in a year of 360 days in case of currencies other than Hong Kong Dollars and Pounds Sterling.
4.7.3 The Customer agrees to pay all of the Bank's normal foreign exchange, other fees, commissions and charges as notified by the Bank to the Customer from time to time.
4.8 Closing-out of Unperformed FX Contracts
4.8.1 Immediately upon or at any time after the occurrence of any one of the following events:-
a. the failure of the Customer to pay any amount of whatever nature to the Bank when due;
b. the breach by the Customer of any terms and conditions of these General Terms and Conditions and/or any FX Contract;
c. the failure of the Customer to pay and maintain at any time any Initial or Additional Cash Margin;
d. the receipt by the Bank of notice of any dispute as to the validity of any order or instruction from the Customer and/or any FX Contract;
e. the continued performance of any of the FX Contracts becomes unenforceable or illegal or is claimed by any government authority to be illegal;
f. the continued performance of this Agreement becomes unenforceable or illegal or is claimed by any government authority to be illegal;
g. receipt of notice by the Bank of the death or mental incapacity of the Customer;
h. the Customer shall become insolvent or generally suspend payment of debts when they become due or a bankruptcy or winding up petition is presented against the Customer; or the Customer shall suffer any distraint or levy of execution of any kind, or a receiver is appointed over the Customer or any substantial part of the property of the Customer;
i. the Customer defaults on any obligation to a third party;
j. if at any time the prevailing rate of exchange applicable to the currency concerned under any FX Contract shall have moved adversely to the position of the Customer; and if the Bank determines, in its sole and absolute discretion, that the Initial Cash Margin and/or the Additional Cash Margin that the Customer has deposited with the Bank is inadequate;
k. a situation shall have arisen or continued which the Bank, in its absolute discretion, determines may jeopardize the position of the Bank in relation to any FX Contract and requires the Bank to take such action as may be necessary for the protection of the Bank; or
l. a material adverse change shall have occurred in the financial position of the Customer,
   
the Bank shall be entitled (but not be under any duty and shall not be responsible for continued losses for any failure to exercise any rights provided herein), without prior notice to the Customer and without prejudice to the other rights and remedies of the Bank and without releasing the Customer from any liability:-
a. to Close-out all or any outstanding positions in any FX Contracts with the Bank (whether or not the Value Dates thereof have passed); for the purpose of such Close-out the Customer irrevocably appoints the Bank as its agent;
b. to suspend or terminate this Agreement and call for immediate payment of all Indebtedness then outstanding; and/or
c. to enforce the security created by Clause 4.13 immediately.

4.8.2 In the event that the Customer enters into any FX Contract and the circumstances affecting the FX market concerned are such that, in the reasonable opinion of the Bank, a substantial loss will be incurred, the Bank shall be entitled, but not obliged, to Close-out such FX Contract at any time that it shall in its absolute discretion deem fit in order to minimize the loss incurred by the Customer.
4.8.3 On the Closing-out of a FX Contract:-
a. the excess of the resale price over or the deficit of the repurchase price against the original price shall be credited to the FX Margin Trading Account; or
b. the deficit of the resale price against or the excess of the repurchase price over the original price shall be debited to the FX Margin Trading Account,
and for the purpose of this Clause, any excess or deficit denominated in any currency other than U.S. Dollars shall be converted into U.S. Dollars at the rate specified in Clause 4.9.1.

4.8.4 The Bank may in its entire discretion Close-out FX Contracts either on a single or a collective basis.
4.8.5 When the Bank exercises its rights as provided in Clause 4.8.1 to sell or purchase any FX by entering into liquidating contracts, the Customer agrees that the Bank shall not be in any way responsible for any loss occasioned thereby (the Bank's only obligation being to use reasonable efforts to obtain in good faith a fair price for the liquidating contracts, taking into account the market conditions then existing).
4.9 Currency Conversion
4.9.1 If at any time under this Agreement it is necessary for one currency to be converted into a different currency, whether a FX or otherwise, where, for example and without limitation, it is necessary to calculate the amount of (i) Indebtedness or (ii) Margin required in a currency or currencies other than the currency or currencies of the FX Indebtedness, the rate of exchange applicable shall be the rate of exchange prevailing in the Hong Kong SAR FX market between such currencies at the relevant time (or, if the said market is for any reason closed for business at the time in question or if the Bank is unable to obtain a rate for the relevant currencies in the Hong Kong SAR FX market, in such other recognised FX market as the Bank may in its discretion select).
4.10 Conclusive Evidence
4.10.1 Confirmations of the execution of the Customer's orders and statements of the Customer's FX Margin Trading Account shall be conclusive and deemed to be accepted if no objection is reported by the Customer to the Bank by telephone and then followed by a written notice within 90 days after transmittal thereof to the Customer, by mail or otherwise.
4.10.2 All the books and records of the Bank (including but not limited to any tape recording and any handwritten information recorded by the staff of the Bank in the course of their dealing with the Customer in FX Transactions) shall (in the absence of manifest error) be binding and conclusive evidence against the Customer for all purposes in all courts of law.
4.10.3 A certificate by an officer of the Bank as to (i) the Indebtedness or any part thereof, (ii) the rate of exchange between any FX or other currencies and (iii) the amount of fees, charges, expenses and balances payable or applicable in respect of this Agreement shall (in the absence of manifest error) be final binding and conclusive evidence against the Customer.
4.10.4 The Customer acknowledges and agrees that there is risk of misunderstanding or errors in any communication by telephone, and that, where the Bank has acted reasonably, such risks shall be borne absolutely by the Customer.
4.10.5 The Customer acknowledges that all conversations between the Customer and the Bank will be tape recorded.
4.11 Communications
4.11.1 Statements, Confirmations, notices and any other communications may be transmitted to the Customer at the address or telephone number appearing in the records of the Bank or at such other address or telephone number as the Customer shall notify the Bank in writing, and all communications so transmitted, whether by mail, telegraph, telephone, facsimile, messenger or otherwise shall be deemed to be transmitted when telephoned or when deposited in the mail, or when received by a transmitting agent, whether actually received by the Customer or not. Any communication from the Customer to the Bank shall be irrevocable and shall not be effective until actually received.
4.12 Exemptions, Indemnities and Waivers
4.12.1 The Customer declares that the Customer is fully aware of the risk in the sale or purchase of FX and all FX Contracts will be entered into by the Customer in reliance of the Customer's own judgment and at the Customer's own risk whether or not advice has been obtained from the Bank.
4.12.2 The Bank shall not be responsible for any delay or failure to perform any obligation on the part of the Bank under this Agreement or any FX Contract by reason of any present law or regulations of any government or other relevant bodies, market condition or any other cause beyond the control of the Bank.
4.12.3 The Customer shall indemnify and keep the Bank fully indemnified from and against all loss, damages, interests, actions, demands, claims, proceedings, and all reasonable costs and expenses which the Bank may incur, suffer and sustain as a result of or arising from any Closing-out of unperformed FX Contracts and the exercise by the Bank of any right as a result thereof or the Bank's entering into and/or performance of any FX Contract.
4.12.4 The Customer declares that the Customer understands and acknowledges the high degree of leverage that is often associated with FX Transactions because of the small margin requirements and such high leverage can work against as well as for the Customer. The high leverage can lead to large losses as well as gains. The Customer further declares that the Customer is fully aware that under certain market conditions, the Customer may find it difficult or impossible to liquidate a position and therefore the losses of the Customer may not be limited to the margins which the Customer has deposited with the Bank.
4.13 Rights of the Bank; Margin, Security and Set-Off
4.13.1
a. As beneficial owner the Customer charges, by way of first fixed charge, to the Bank the FX Margin Trading Account and all the Cash Margin and all right, title and interest of the Customer whatsoever present and future therein.
b. The Customer agrees and acknowledges that the Cash Margin is not repayable to the Customer or any other person unless and until such time as the Indebtedness has been unconditionally and irrevocably paid and discharged in full.
The rights of the Bank under paragraphs (a) and (b) are separate and independent rights enforceable by the Bank against the Customer or any other person notwithstanding the other of such rights or the effectiveness thereof.
4.13.2 Without prejudice to its rights under Clause 4.13.1(a), the Bank shall be entitled at its absolute discretion at any time at the risk of the Customer and without notice to convert any FX into any other currency in which any Indebtedness or any credit balance or Cash Margin may for the time being be designated at the rate specified in Clause 9.1 and apply such currency in or towards satisfaction of the Indebtedness.
4.13.3 In addition to any general lien or similar right to which the Bank may be entitled by law, the Bank may at any time, without prior notice to the Customer:-
a.
(i) apply any credit balance (whether or not then due) in any currency to which the Customer is at any time beneficially entitled on any account (whether current, savings, time, call or deposit accounts) at any office or branch of the Bank wherever situated; and/or
(ii) set-off any of the liability of the Bank to the Customer including but not limited to such of the liability of the Bank (whether actual or contingent) under any FX Contract then outstanding,
in or towards satisfaction of all or any liabilities of the Customer to the Bank under this Agreement or any FX Contract (whether actual or contingent) and for such purpose, the Bank may convert all or any part of such credit balance or liability to such other currencies at the rate specified in Clause 9.1; and
b. if any sum is due but unpaid under this Agreement or any FX Contract, retain all or any securities, valuables or any other property whatever and wherever situate which may be deposited with or otherwise held by the Bank for or in the name of the Customer whether for safe custody or otherwise and to sell the same or any part thereof at such price as the Bank shall determine whether by public auction, private treaty or tender and the Bank may engage agent and broker therefor and apply the proceeds thereof to set off any or all sums owing hereunder after first deducting all costs and expenses.

4.13.4 The Customer will promptly upon request by the Bank do or execute all such deeds, assurances, agreements, instruments, notices, acts and things which may be lawfully required to give full effect to this Agreement.
4.14 Miscellaneous
4.14.1 If at any time any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby.
4.14.2 No delay or failure to demand, exercise or enforce any right or claim shall constitute a waiver and no time or indulgence granted to the Customer or any third party shall release or discharge any of the liabilities of the Customer under this Agreement.
4.14.3 Subject to this Agreement shall not be affected by the death of the Customer and this Agreement shall be binding on the heirs, legal or personal representatives, successors or assigns of the Customer.
4.14.4 If the Customer shall consist of two or more persons, the following provisions shall apply:-
a. the liabilities of the Customers under this Agreement and all FX Contracts shall be joint and several and the provisions of this Agreement and all references to the Customer shall be to any one or more of them; and these General Terms and Conditions and/or all FX Contracts shall be construed accordingly;
b. the Bank may settle and/or compromise (including but not limited to acceptance of instalment payment and/or acceptance of partial payment for release or discharge of full liability) with any one or more but not all of the Customers without affecting releasing or discharging the liabilities of the others;
c. all instructions dealing with a FX Margin Trading Account and/or a FX Contract and/or an FX Transaction in the event of the death of any one or more of the Customers shall be subject to any claim or objection on the part of the Estate Duty Commissioner or any other relevant authority and shall be without prejudice to any right which the Bank may have arising out of any lien, charge, pledge, set-off, counterclaim or otherwise whatsoever or any step or legal proceedings which the Bank may in its absolute discretion deem desirable to take in view of any claim by any person other than the survivor(s) of them or the executors or administrators of the deceased; and
d. subject to paragraph (c), the Bank shall hold on the death of any of the Customers all credit balance in the FX Margin Trading Account and all moneys due by the Bank to the Customers under all the FX Contracts and FX Transactions to the order of the survivor or survivors of the Customers or in the case of death of all the Customers, the executor(s) or administrator(s) of the last survivor of the Customers and any payment by the Bank as above shall be an absolute full and conclusive discharge to the Bank as against all the Customers (including the deceased and his/her estate and successor).

4.14.5 If the Customer is a firm (whether sole proprietorship or partnership firm), the following provisions shall also apply:-
a. the Customer and the proprietor or partners and persons carrying on business in the name of the firm now or at any time hereafter shall be jointly and severally liable hereunder and under all FX Contracts; and
b. the Customer shall advise the Bank of any change in the constitution or membership of the firm and unless expressly released, all the persons who signed the Contract Documents as proprietor or partners of the Customer shall continue to be liable hereunder and under all FX Contracts irrespective of such change.

4.14.6 The Customer warrants and represents that:-
a. in case the Customer is a limited company, it has been duly incorporated at the place of its incorporation;
b. all acts, conditions and things required to be done, performed and observed in order that these Terms and Conditions shall constitute legal, valid, binding and enforceable obligations against the Customer in accordance with its terms have been done, performed and observed in strict compliance with all applicable laws and, in case the Customer is a limited company, its memorandum and articles of association or constitution;
c. each FX Contract will be entered into by the Customer in the ordinary course of its business with a view to protecting its position in relation to certain specific currency obligations;
d. unless otherwise notified to the Bank in writing to include the name and address of the person on whose behalf the Customer is acting, it enters into this Agreement and will enter into FX Contracts as a principal and not as trustee or agent;
e. the Customer shall give instructions to the Bank only personally or through such persons whose names and addresses have been notified to the Bank by the Customer in writing; and
f. the Customer has read the terms of the Contract Documents, understands them fully and that the Customer has adequate financial expertise and resources to comply with their terms. The Bank shall have no liability for any advice given or views expressed to the Customer, regardless of whether such advice is given or such views are expressed at the request of the Customer (provided that the Bank has informed the Customer that no liability will be assumed for such advice or view).

4.14.7 The Customer shall not assign any or all of the rights and interest of the Customer under any FX Contracts and/or FX Transactions without the prior written consent of the Bank.
4.14.8 The Bank will notify the Customer of any material change to its full name, address, or the nature of its services to be provided to or available to the Customer, or any remuneration (and the basis for payment) that is to be paid by the Customer to it, or details of margin requirements, interest charges, margin calls and the circumstances under which the Customer's positions may be closed without the Customer's consent.
4.14.9 The Customer acknowledges that the Customer may be affected by any curtailment of, or restriction on, the capacity of the Bank to trade in respect of open positions as a result of action taken by the Hong Kong Monetary Authority under applicable rules and regulations or for any other reason and in such circumstances, the Customer may be required to reduce or Close out its/his/her open positions with the Bank.
4.14.10 No employee of the Bank may enter into FX Transactions on his/her own account with the Bank.
4.15 Addition of New Terms by the Bank
4.15.1 The Customer agrees that the Bank may at its discretion alter, amend, delete or substitute any of the terms herein or add new terms to the Contract Documents by notice in writing setting out such alteration, amendment, deletion, substitution or addition (as the case may be) which shall be deemed to be incorporated herein with effect from the date specified in the notice provided that any variation of the terms which affects fees and charges and the liabilities or obligations of the Customer shall only take effect at least 30 days after such notice unless objected to the Customer within 7 days from such notice and upon receipt by the Bank of such written objection, the Bank shall be entitled to treat the same as an event as mentioned in Clause 8.1.
4.16 Governing Law and Jurisdiction
4.16.1 The law of Hong Kong SAR shall be applicable to and govern (i) the Contract Documents; and (ii) all the FX Contracts and FX Transactions and the Courts of Hong Kong SAR shall have the non-exclusive jurisdiction to determine, enforce and adjudicate all disputes and claims arising out of the above and in connection therewith.
4.17 Text
4.17.1 The Chinese version of these General Terms and Conditions is for reference only. If there is any conflict between the English and Chinese version, the English version shall prevail.

Stand Alone Notice

The Stock Exchange of Hong Kong Limited endeavours to ensure the accuracy and reliability of the information provided. But the Stock Exchange of Hong Kong Limited and we do not guarantee the accuracy or reliability of any information, and accept no liability (whether in tort or contract or otherwise) for any loss or damage arising from any inaccuracies or omissions.

The English version of these Conditions prevails over the Chinese version.

CMB Wing Lung Net Banking
Effective: November 2006