Dealing Services. (a) The Bank will execute orders for Transactions in Investments on the Customer’s behalf, at the Customer’s risk and upon the Customer’s specific Instructions, provided such Investments are of a type and are traded on markets in which the Bank is prepared at its discretion to transact. (b) The Bank may, on the Customer’s Instructions, effect Transactions on any market or with such counterparty, negotiate and execute counterparty and account opening documentation on the Customer’s behalf and take all routine or day-to-day decisions and otherwise act as the Bank considers appropriate in implementing the Customer’s Instructions. The Bank may take such steps as are necessary to enable it to comply with the rules, regulations and proper market practices of any relevant market or exchange or clearing house. In the case of over-the-counter derivatives transactions, the Bank may effect Transactions on behalf of the Customer with any counterparty or counterparties of the Bank’s choice and on such terms as the Bank may determine at its discretion. (c) The Bank will (unless it notifies the Customer otherwise) act as the Customer’s agent in entering into Transactions effected by the Bank on behalf of the Customer and the Customer will therefore be bound by such Transactions entered into by the Bank. Notwithstanding this, the Customer agrees that neither the relationship between the Customer and the Bank as described in the Agreement nor any other Service that the Bank provides to the Customer shall give rise to any fiduciary or equitable duties on the Bank’s part. Save as expressly provided by applicable law, no fiduciary or equitable duties arise on the part of the Bank which would prevent or hinder the Bank or any of its Affiliates from doing business with or for the Customer, acting as both market-maker or broker, whether as principal or agent, with the Bank and/or any of the Bank’s Affiliates and other investors and generally acting as provided in the Agreement, as the case may be. As a result, when the Bank deals for the Client, or manages any assets of the Customer and/or provides Services to the Customer, the Bank or any of the Bank’s Affiliates may have an interest, relationship, or arrangement that is material in relation to the Transaction or Investment concerned. (d) Any Instruction for any Transaction shall only be accepted if it is for execution on the day of Instruction if it is received before such cut-off time as the Bank may from time to time prescribe – unless the Bank agrees otherwise, orders given are good only for the day. Where for whatever reason such Customer’s Instruction has not been executed (or any unexecuted part of any such Instruction in the case of a partially executed Instruction), it shall be deemed to lapse at the expiry of the trading date specified in any such Instruction. Any Customer’s Instruction for any Transaction for execution on the date of the Instruction must also be received before any relevant cut-off time in respect of any relevant exchange or market, as determined by the Bank. All other Customer Instructions shall be given so as to allow the Bank sufficient time within which to comply. Notwithstanding the foregoing, the Bank may at its discretion cancel open orders that have not been executed at any time. (e) The Bank shall act on the Customer’s Instructions as soon as reasonably possible but shall not be liable for any Losses suffered by the Customer (including without limitation any Losses suffered or incurred as a result of any change in the price of any Investments, Transactions or other assets between the time of giving or receipt of any Instruction to or by the Bank and the time at which such any Instruction is acted on) by virtue of any delay in acting on any Instruction or any partial completion of or failure or inability to act on any Customer’s Instruction for whatever reason (including without limitation any failure or error of any computer or electronic system or equipment or inability to accommodate the Customer’s investment in part or in full). (f) The Customer undertakes to comply with any trading restrictions or position limits under applicable laws or regulations, including those imposed by any relevant exchange or market or clearing house, and irrespective of whether the Customer trades through one or more banks or brokers. If any trading restriction or position limit is exceeded, the Bank is authorised to disclose the Customer’s identity and its positions, and/or liquidate any of the Customer’s positions, if the Bank is requested to do so by any regulatory authority, exchange, market or clearing house. (g) The Customer agrees that: (i) The Bank may aggregate any order received from the Customer with the Bank’s own orders or with those of any Affiliate or with those of the Bank’s other customers, and the Customer acknowledges that such aggregation may on some occasions operate to the Customer’s disadvantage and on other occasions to the Customer’s advantage; (ii) The Bank may execute any order received from the Customer in a series of transactions over a period of time and report to the Customer an average price for the Transactions in the series instead of the actual price for each Transaction; (iii) To the extent permitted by law, the Bank may cross trades between customers; and (iv) If the Customer chooses to withdraw any order before execution is completed (and notwithstanding that the Bank did not inform the Customer that the Customer’s order has been partially executed), the Customer shall remain liable for all Transactions which were done for the Customer’s Account prior to the Bank’s acceptance of the Customer’s withdrawal. (h) Where any jurisdiction restricts foreign ownership of Securities or other Investments, the Bank shall have no duty to ascertain the nationality of the owner of the Securities or other Investments or whether Securities or other Investments deposited or received by the Customer are approved for foreign ownership unless specifically instructed by the Customer. (i) The Bank will not be under any obligation to accept any Customer’s Instruction to enter into any Transaction unless: (i) there are sufficient monies held in cleared funds or due to be received under any sale Transactions to the credit of the Customer’s Account to meet any purchase price (or any other amount payable by the Customer under such Transaction) together with any estimated expenses to be incurred in connection with such Transaction; or (ii) there are sufficient available credit Facilities provided by the Bank to meet such purchase price and expenses and all terms and conditions relating to such Facilities have or will have been satisfied in the Bank’s opinion. (j) The Customer acknowledges, undertakes and agrees to be always primarily liable for all Transactions effected by the Bank with the Customer or on behalf of the Customer pursuant to the Agreement. Where monies are payable in respect of any Transaction in any currency, (i) the Bank is authorised to carry out any foreign exchange transaction at the Bank’s or its agents’ prevailing rates to convert such foreign currency to the currency of the Account and to make any necessary withholding or deduction as may be required by applicable law, (ii) any profit or loss arising as a result of a fluctuation in the exchange rate affecting such currency will be entirely for the Customer’s own account and risk and (iii) all initial and subsequent deposits for collateral purposes shall be recorded in such currency or currencies, and in such amounts, as the Bank may in its discretion elect. Where the Customer has placed several orders or Instructions and there are insufficient monies or available credit Facilities to meet the resulting obligations, the Bank may in its discretion decide which of the orders or Instructions will be executed, irrespective on the order in which, or dates on which the Bank received them. The Bank shall be entitled to debit the relevant Account with the amount payable for any Transaction on or (at the Bank’s discretion) at any time before the settlement date. (k) The Bank shall not be under any obligation to act on any Customer’s Instruction to sell any Investments (or enter into any Transaction in which Investments must be delivered) unless sufficient such Investments are held in the Bank’s name (or that of the Bank’s custodian or nominee), in the Customer’s Account or are due to be credited to the Customer’s Account under any purchase Transactions which are not subject to any charge, lien or other encumbrance or security interest in favour of any person including the Bank. On receipt of any Instruction to sell Investments, the Bank shall be entitled to debit the relevant Account with the relevant Investments on or (at the Bank’s discretion) at any time before completion of the said sale. The Customer acknowledges that the Customer shall not be entitled to withdraw or in any way deal with all or any part of such Investments until completion of the said sale. (l) The agreement of the Bank to enter into any Transaction for the Customer’s account is subject to the Customer giving any warranties and indemnities requested by the Bank in relation to such Transactions. If there is any shortfall of funds, the Bank reserves the right (but is not obliged), to sell or liquidate the Investments which the Customer had contracted to buy at such price and in such quantities as the Bank may think fit and recover from the Customer any Losses suffered or incurred by the Bank without any prejudice to any other right which the Bank may have against the Customer. In the event that the Customer does not own sufficient Investments which the Customer has contracted to sell, the Bank reserves the right (but is not obliged) to buy-in the Investments and/or to recover losses and penalty charges, if any, from the Customer. The Customer shall also disclose to the Bank whether a Transaction is a “short-sale” where required by the applicable rules and regulations of the relevant exchange or market and in such case, the Customer warrants and represents that it has made adequate arrangements to obtain all equities necessary to cover the resulting short position by or before the applicable settlement time and must inform the Bank of such arrangements at the time the order is processed or inform the Bank that it has not made such arrangements and would like the Bank to make such arrangements. (m) The Bank may, at its discretion, credit the sale or redemption proceeds from the sale or redemption of Investments or other payments (including without limitation interest, income or dividend) relating to the Investments to be received for the account of the Customer to the Account prior to the receipt of such funds by the Bank. (n) In the event of the non-receipt of such proceeds and payments by the Bank within such time as the Bank may in its discretion require, within such time as may be prescribed in any document relating to the Investments for any reason, the Customer agrees that such sums credited into the Account shall be repaid on demand by the Customer to the Bank (and may, at the Bank’s discretion, be debited from the Account) together with accrued interest earned on such sums. (o) For avoidance of doubt, in the event that such sums are not repaid, the amount outstanding would be treated as a debt due and payable by the Customer to the Bank and the Bank’s rights of set-off and lien as set out in these General Terms shall apply to such amounts outstanding. (p) The Bank may provide to the Customer information and documentation (including offering documentation) supplied by or based upon information received from the relevant issuers, distributors and/or fund providers. The Customer acknowledges that such information and documentation is obtained from sources believed to be reliable. However, no representation or warranty, express or implied, is made by the Bank as to the accuracy or completeness of such information. The Customer is aware that any information may quickly become outdated due to market developments and therefore only be of temporary relevance. The Customer confirms to treat all investments-related information and documentation or any received from the Bank as confidential and agrees not to duplicate or furnish copies to any person other than to the Customer’s professional advisers for the purposes of obtaining professional advice. The Customer further agrees to dispose or return such information and documentation promptly to the Bank upon the Bank’s request should the Customer decide not to invest in the investment. These confidentiality obligations shall survive the termination of any contractual relationship between the Bank and the Customer. Further, the Customer shall be liable for any loss, expenses or costs caused to the Bank by the Client’s breach of these confidentiality obligations.
Appears in 3 contracts
Samples: Customer Agreement, Customer Agreement, Customer Agreement
Dealing Services. (a) The Bank will execute orders for Transactions in Investments on the Customer’s behalf, at the Customer’s risk and upon the Customer’s specific Instructions, provided such Investments are of a type and are traded on markets in which the Bank is prepared at its discretion to transact.
(b) The Bank may, on the Customer’s Instructions, effect Transactions on any market or with such counterparty, negotiate and execute counterparty and account opening documentation on the Customer’s behalf and take all routine or day-to-day decisions and otherwise act as the Bank considers appropriate in implementing the Customer’s Instructions. The Bank may take such steps as are necessary to enable it to comply with the rules, regulations and proper market practices of any relevant market or exchange or clearing house. In the case of over-the-counter derivatives transactionsOTC Derivatives Contracts, and on the condition that the Customer is and shall at all times be an accredited investor, institutional investor or expert investor, the Bank may effect Transactions on behalf of the Customer with any counterparty or counterparties of the Bank’s choice and on such terms as the Bank may determine at its discretion, or with the Bank acting as principal.
(c) The Bank will (unless it notifies the Customer otherwise) act as the Customer’s agent in entering into Transactions (except structured products) effected by the Bank on behalf of the Customer and the Customer will therefore be bound by such Transactions entered into by the Bank. The Bank will act as principal when entering into structured products with the Customer, unless it notifies the Customer otherwise. Notwithstanding this, the Customer agrees that neither the relationship between the Customer and the Bank as described in the Agreement nor any other Service that the Bank provides to the Customer shall give rise to any fiduciary or equitable duties on the Bank’s part. Save as expressly provided by applicable law, no fiduciary or equitable duties arise on the part of the Bank which would prevent or hinder the Bank or any of its Affiliates from doing business with or for the Customer, acting as both market-market- maker or broker, whether as principal or agent, with the Bank and/or any of the Bank’s Affiliates and other investors and generally acting as provided in the Agreement, as the case may be. As a result, when the Bank deals for the Client, or manages any assets of the Customer and/or provides Services to the Customer, the Bank or any of the Bank’s Affiliates may have an interest, relationship, or arrangement that is material in relation to the Transaction or Investment concerned.
(d) Any Instruction for any Transaction shall only be accepted if it is for execution on the day of Instruction if it is received before such cut-off time as the Bank may from time to time prescribe – unless the Bank agrees otherwise, orders given are good only for the day. Where for whatever reason such Customer’s Instruction has not been executed (or any unexecuted part of any such Instruction in the case of a partially executed Instruction), it shall be deemed to lapse at the expiry of the trading date specified in any such Instruction. Any Customer’s Instruction for any Transaction for execution on the date of the Instruction must also be received before any relevant cut-cut- off time in respect of any relevant exchange or market, as determined by the Bank. All other Customer Instructions shall be given so as to allow the Bank sufficient time within which to comply. Notwithstanding the foregoing, the Bank may at its discretion cancel open orders that have not been executed at any time.
(e) The Bank shall act on the Customer’s Instructions as soon as reasonably possible but shall not be liable for any Losses suffered by the Customer (including without limitation any Losses suffered or incurred as a result of any change in the price of any Investments, Transactions or other assets between the time of giving or receipt of any Instruction to or by the Bank and the time at which such any Instruction is acted on) by virtue of any delay in acting on any Instruction or any partial completion of or failure or inability to act on any Customer’s Instruction for whatever reason (including without limitation any failure or error of any computer or electronic system or equipment or inability to accommodate the Customer’s investment in part or in full).
(f) The Customer undertakes to comply with any trading restrictions or position limits under applicable laws or regulations, including those imposed by any relevant exchange or market or clearing house, and irrespective of whether the Customer trades through one or more banks or brokers. If any trading restriction or position limit is exceeded, the Bank is authorised to disclose the Customer’s identity and its positions, and/or liquidate any of the Customer’s positions, if the Bank is requested to do so by any regulatory authority, exchange, market or clearing house.
(g) The Customer agrees that:
(i) The Bank may aggregate any order received from the Customer with the Bank’s own orders or with those of any Affiliate or with those of the Bank’s other customers, and the Customer acknowledges that such aggregation may on some occasions operate to the Customer’s disadvantage and on other occasions to the Customer’s advantage;
(ii) The Bank may execute any order received from the Customer in a series of transactions over a period of time and report to the Customer an average price for the Transactions in the series instead of the actual price for each Transaction;
(iii) To the extent permitted by law, the Bank may cross trades between customers; and
(iv) If the Customer chooses to withdraw any order before execution is completed (and notwithstanding that the Bank did not inform the Customer that the Customer’s order has been partially executed), the Customer shall remain liable for all Transactions which were done for the Customer’s Account prior to the Bank’s acceptance of the Customer’s withdrawal.
(h) Where any jurisdiction restricts foreign ownership of Securities Specified Products or other Investments, the Bank shall have no duty to ascertain the nationality of the owner of the Securities Specified Products or other Investments or whether Securities Specified Products or other Investments deposited or received by the Customer are approved for foreign ownership unless specifically instructed by the Customer.
(i) The Bank will not be under any obligation to accept any Customer’s Instruction to enter into any Transaction unless:
(i) there are sufficient monies held in cleared funds or due to be received under any sale Transactions to the credit of the Customer’s Account to meet any purchase price (or any other amount payable by the Customer under such Transaction) together with any estimated expenses to be incurred in connection with such Transaction; or
(ii) there are sufficient available credit Facilities provided by the Bank to meet such purchase price and expenses and all terms and conditions relating to such Facilities have or will have been satisfied in the Bank’s opinion.
(j) The Customer acknowledges, undertakes and agrees to be always primarily liable for all Transactions effected by the Bank with the Customer or on behalf of the Customer pursuant to the Agreement. Where monies are payable in respect of any Transaction in any currency, (i) the Bank is authorised to carry out any foreign exchange transaction at the Bank’s or its agents’ prevailing rates to convert such foreign currency to the currency of the Account and to make any necessary withholding or deduction as may be required by applicable law, (ii) any profit or loss arising as a result of a fluctuation in the exchange rate affecting such currency will be entirely for the Customer’s own account and risk and (iii) all initial and subsequent deposits for collateral purposes shall be recorded in such currency or currencies, and in such amounts, as the Bank may in its discretion elect. Where the Customer has placed several orders or Instructions and there are insufficient monies or available credit Facilities to meet the resulting obligations, the Bank may in its discretion decide which of the orders or Instructions will be executed, irrespective on the order in which, or dates on which the Bank received them. The Bank shall be entitled to debit the relevant Account with the amount payable for any Transaction on or (at the Bank’s discretion) at any time before the settlement date.
(k) The Bank shall not be under any obligation to act on any Customer’s Instruction to sell any Investments (or enter into any Transaction in which Investments must be delivered) unless sufficient such Investments are held in the Bank’s name (or that of the Bank’s custodian or nominee), in the Customer’s Account or are due to be credited to the Customer’s Account under any purchase Transactions which are not subject to any charge, lien or other encumbrance or security interest in favour of any person including the Bank. On receipt of any Instruction to sell Investments, the Bank shall be entitled to debit the relevant Account with the relevant Investments on or (at the Bank’s discretion) at any time before completion of the said sale. The Customer acknowledges that the Customer shall not be entitled to withdraw or in any way deal with all or any part of such Investments until completion of the said sale.
(l) The agreement of the Bank to enter into any Transaction for the Customer’s account is subject to the Customer giving any warranties and indemnities requested by the Bank in relation to such Transactions. If there is any shortfall of funds, the Bank reserves the right (but is not obliged), to sell or liquidate the Investments which the Customer had contracted to buy at such price and in such quantities as the Bank may think fit and recover from the Customer any Losses suffered or incurred by the Bank without any prejudice to any other right which the Bank may have against the Customer. In the event that the Customer does not own sufficient Investments which the Customer has contracted to sell, the Bank reserves the right (but is not obliged) to buy-in the Investments and/or to recover losses and penalty charges, if any, from the Customer. The Customer shall also disclose to the Bank whether a Transaction is a “short-sale” where required by the applicable rules and regulations of the relevant exchange or market and in such case, the Customer warrants and represents that it has made adequate arrangements to obtain all equities necessary to cover the resulting short position by or before the applicable settlement time and must inform the Bank of such arrangements at the time the order is processed or inform the Bank that it has not made such arrangements and would like the Bank to make such arrangements.
(m) The Bank may, at its discretion, credit the sale or redemption proceeds from the sale or redemption of Investments or other payments (including without limitation interest, income or dividend) relating to the Investments to be received for the account of the Customer to the Account prior to the receipt of such funds by the Bank.
(n) In the event of the non-receipt of such proceeds and payments by the Bank within such time as the Bank may in its discretion require, within such time as may be prescribed in any document relating to the Investments for any reason, the Customer agrees that such sums credited into the Account shall be repaid on demand by the Customer to the Bank (and may, at the Bank’s discretion, be debited from the Account) together with accrued interest earned on such sums.
(o) For avoidance of doubt, in the event that such sums are not repaid, the amount outstanding would be treated as a debt due and payable by the Customer to the Bank and the Bank’s rights of set-off and lien as set out in these General Terms shall apply to such amounts outstanding.
(p) The Bank may provide to the Customer information and documentation (including offering documentation) supplied by or based upon information received from the relevant issuers, distributors and/or fund providers. The Customer acknowledges that such information and documentation is obtained from sources believed to be reliable. However, no representation or warranty, express or implied, is made by the Bank as to the accuracy or completeness of such information. The Customer is aware that any information may quickly become outdated due to market developments and therefore only be of temporary relevance. The Customer confirms to treat all investments-related information and documentation or any received from the Bank as confidential and agrees not to duplicate or furnish copies to any person other than to the Customer’s professional advisers for the purposes of obtaining professional advice. The Customer further agrees to dispose or return such information and documentation promptly to the Bank upon the Bank’s request should the Customer decide not to invest in the investment. These confidentiality obligations shall survive the termination of any contractual relationship between the Bank and the Customer. Further, the Customer shall be liable for any loss, expenses or costs caused to the Bank by the Client’s breach of these confidentiality obligations.and
Appears in 2 contracts
Samples: Customer Agreement, Customer Agreement
