Common use of Undertakings, Representations and Warranties Clause in Contracts

Undertakings, Representations and Warranties. 21.1 The Customer undertakes, represents and warrants to the Bank, as of the date of accepting these Terms and Conditions and as of each time an Instruction is given to the Bank or a Transaction is entered into, that: (a) where it is a corporation or Unincorporated Entity, the Customer is duly incorporated or otherwise properly constituted and validly existing under the laws of its place of incorporation/constitution and where the Customer is an individual, the Customer is of full age and capacity; (b) the Customer has full capacity, power and authority to execute, deliver, exercise its rights, perform and comply with its obligations under the Agreement; (c) the opening and maintenance of the Account, the giving of Instructions, entering into of Transactions and the Customer’s execution and delivery of and performance of its obligations under the Agreement does not and will not violate or conflict with or constitute a default or exceed any limitation under any provision of the constitutional documents (where it is a corporation or Unincorporated Entity) or the constitutive documents of the trust (where it is acting as trustee) or any instrument or agreement with any other party or of any judgment, order, injunction, decree, determination or award of any courts or any judicial, administrative or governmental authority or organisation presently applicable to it or any Laws or regulations; (d) the Agreement constitutes the Customer’s legal, valid and binding obligations enforceable against it in accordance with its terms; (e) no action, suit or proceedings at Law or in equity (whether in Hong Kong or elsewhere) before any court, tribunal, arbitral or administrative body or government agency that is likely to affect the legality, validity or enforceability against the Customer of the Agreement or of the Customer’s ability to perform the obligations under the Agreement is pending or, to the Customer’s knowledge, threatened; (f) no legal or other proceedings have been initiated or threatened and no meeting has been convened for the bankruptcy, dissolution, liquidation, winding-up, judicial management, termination of existence or reorganisation of the Customer or for the appointment of a receiver, manager (judicial or otherwise), trustee or similar officer and no arrangement, composition with, or any assignment for the benefit of creditors have been made or proposed to be made against the Customer; (g) except as otherwise notified, the Account(s) is opened, maintained and operated for the Customer’s own benefit and all Assets are and will continue to be beneficially owned by the Customer free from any lien, charge or other encumbrance and/or restriction other than created in favour of the Bank; (h) all information in the Account Opening Documentation or other supporting documents delivered to the Bank to facilitate the provision or maintenance of any Services or for the execution of any Transaction, including any information provided to the Bank for the purposes of determining the Needs Analysis and Investment Profile, is true, complete and accurate; (i) the Customer has not been committed or convicted of any serious tax crimes or been subject to any investigation or criminal proceedings, whether in Hong Kong or elsewhere, in relation to tax matters nor does the Customer have knowledge of such investigations or proceedings being taken against the Customer; (j) the purpose of opening of the Account and effecting Transactions is not illegitimate and the Customer will not use the Account as a platform for illegal tax activities and is aware of Hong Kong and the Bank’s firm stance against illegal or illicit tax activities; (k) none of the Assets are proceeds of organised crime of the specified offence of a person; (l) the Customer will maintain, and, where necessary, obtain in the future at the Customer’s own cost, all consents, licences, approvals required by the Customer to perform and comply with its obligations under the Agreement, including requisite exchange control approvals; (m) the Customer shall conduct such investigation and analysis of the terms and conditions, risks and merits of each Transaction in light of its own circumstances, financial condition and objective and to the extent the Customer deems necessary, obtain independent advice from competent legal, financial, tax, accounting and other professional advisers; (n) the Customer understands the mechanics of the Transaction and the legal, financial, tax and other risks arising in respect of the Transaction and is able to bear any such risk involved (including a total loss) of the investment; (o) the Customer shall consult the Customer’s own tax advisors and experts to determine the Customer’s tax reporting obligations and shall be responsible for all tax filings and tax duties and obligations; and (p) the Customer shall ensure that all applicable Laws (including all reporting and disclosure requirements and shareholding restrictions) are strictly adhered to and complied with at all times. 21.2 Notwithstanding the above clause A21.1, if the Bank solicits the sale of or recommends any financial product to the Customer, the financial product must be reasonably suitable for the Customer having regard to the Customer’s financial situation, investment experience and investment objectives. No other provision of these Terms and Conditions or any other document the Bank may ask the Customer to sign and no statement the Bank may ask the Customer to make derogates from this clause A21.