The following Terms and Conditions ("T&C") shall govern the general relationship between Kim Eng Securities Pte. Ltd. ("KES") and the client (hereafter the "Client"), and apply to the trading of securities and other permitted financial products under the Client's Trading and other accounts with KES (singly and collectively "the Account") and the provision of services by KES.
THE CLIENT SHOULD NOT UTILISE ANY OF THE SERVICES PROVIDED BY KES UNLESS THE CLIENT AGREES AND IS IN A POSITION TO COMPLY WITH ALL THE TERMS AND CONDITIONS HEREIN AND IN THE ACCOUNT APPLICATION FORM.
| |
|
| 1.1 |
Definitions
In this document and in any other agreements entered into between KES and the Client, unless the context otherwise requires, the following terms shall have the meanings set out hereunder:-
'
Authorised Person ' means any officer, employee or agent of the Client duly authorised by the Client in writing from time to time;
'
Client's Property ' means all monies securities and/or other property of the Client in KES's custody or control held from time to time;
'
Confirmation ' means the written notice (including telex, facsimile or other electronic means from which it is possible to produce a hard copy) which contains the specific terms of a transaction entered into between the Parties and includes a contract note. Ancillary agreements referred to in the Confirmation are part of such Confirmation; and
"securities " shall include (but is not limited to) debentures, stocks, shares, bonds, notes or certificates of deposit (whether listed or non-listed or traded in Singapore or elsewhere) issued by a government, a body corporate or unincorporate, or international body, or any right or any derivative instrument (including any warrant, option, transferable subscription right, loan stock and convertible right) in respect of any such debentures, stocks or shares.
|
|
|
| 1.2 |
Account Opening
Upon its acceptance of an application by the Client to open an Account, KES shall, in accordance with its general operating procedures, open an Account in the name of the Client upon which the Client may effect transactions in securities or other permitted financial products. |
|
|
| 1.3 |
Single Agreement
All transactions on any Account are entered into in reliance on the fact that this Agreement, all outstanding transactions (and to the extent recorded in a Confirmation, and each such Confirmation) shall form a single agreement between KES and the Client and KES would not otherwise enter into this Agreement and any such transactions. However, a transaction which is duly settled or liquidated in accordance with its terms will not form part of such single agreement. |
|
|
| 1.4 |
No Right to Encumber Account
The Client shall not without the prior written consent of KES assign, charge or encumber any Account or the Client's rights therein, or create or permit to create, in favour of any person (other than KES) any interest in any Account (by way of trust or otherwise). KES shall not be required to recognise any person other than the Client as having any interest in any Account. |
|
|
| 1.5 |
Instructions and Orders
(a) The Client authorises KES to rely and act on, and treat as fully authorised by and binding upon the Client, any order instruction or communication (by whatever means transmitted and whether or not in writing) which purports to have been given and which is reasonably accepted by KES in good faith as having been given by the Client or on his behalf by any person, without further enquiry on the part of KES as to the genuineness authority or identity of the person giving or purporting to give such instructions and regardless of the circumstances prevailing at the time. The Client agrees that it shall be responsible to KES for all engagements indebtedness and any obligations made or entered into in the Client's name whether in writing or orally, and howsoever communicated or purported to be given in the manner above. KES shall not be liable for any loss damage cost and expense incurred by the Client as a result of KES so acting. KES shall have the discretion to refuse to accept or act on any instructions or requests of the Client without having to assign any reason for such refusal and KES shall not be liable for any loss damage cost and expense incurred by the Client as a result of such refusal. The record or recollection of any of KES's officers employees or agents receiving oral instructions from the Client is conclusive against the Client as to the contents of such oral instructions.
(b) For the avoidance of doubt, the Client shall not assume that its orders have been executed until KES confirms the same orally or in writing. However, nothing in this Clause implies that the Client's orders have not been executed if the Client, for whatever reason, does not receive confirmations of such orders.
(c) The Client acknowledges and consents to the right of KES to aggregate the Client's orders with the orders of KES's other customers (whether for execution on other jurisdictions or otherwise). The allotment or distribution of any securities, monies or other property pursuant to such order aggregation to or amongst the Client and KES's other customers shall be at KES's sole and absolute discretion, and KES may also effect such transactions as principal to the counterparty in such jurisdiction. If KES so acts, KES may also take such actions as KES may require in order to avoid liability to its counterparty. The Client accepts that such allotment or distribution or actions by KES may result in inequities and/or loss to the Client and accepts the risk thereof as being for its account. |
|
|
| 1.6 |
Commissions, Fees & Other Charges
The Client agrees to pay all fees commissions brokerage stamp duties clearing fees goods and services tax and other charges which may be payable in relation to any of the services provided or transactions effected for the Client by KES and at such rate(s) as may be determined by KES. All payments shall be made without deductions or withholding for or on account of any tax duty or levy. If KES is obliged to so deduct or withhold, the Client shall pay such additional sums to KES in order to ensure that the net amount received by KES shall be the full amount properly due to KES had the deduction or withholding not applied. |
|
|
| 1.7 |
Agents
KES is authorised to employ agents who may or may not be any of its affiliated companies, to perform all or part of its services or duties, and to provide to such agents information relating to the Client and/or to transactions requested by the Client. The Client acknowledges and consents to KES delegating to and/or using foreign brokers in other jurisdictions for the execution of the Client's orders with respect to securities listed and traded in those jurisdictions. So long as KES uses reasonable care in the selection of such brokers, KES shall have no liability or responsibility referable to any default or negligence of such foreign brokers. Notwithstanding that as between the Client and KES, KES is in fact the agent of the Client in using the foreign broker to carry out the Client's orders, KES may have to accept sole and principal responsibility to the foreign broker for the executed order. Accordingly the Client shall indemnify KES against any and all loss damage cost or expense suffered or incurred by KES arising from or in connection with carrying out the Client's orders, and actions which KES deems in good faith necessary to ensure that KES will not be in default of its principal obligation or responsibility or to contain or minimize its loss. |
|
|
| 1.8 |
Payment/handling of securities/monies
Trading representatives are not authorised to collect payment or handle securities on behalf of KES. The Client acknowledges that if the Client chooses to effect payment or to deposit securities by delivering a cheque or securities to his trading representative, payment or deposit of the securities shall be deemed to be made only when KES receives the cheque or securities from the trading representative and not when the cheque or securities are delivered to the trading representative. The Client agrees that in the event where payments are made prior to the date for settlement of purchases, KES shall deposit such amounts into the Client's trust account and shall not withdraw any monies from such trust account except for the purposes stipulated in Regulation 21 of the Securities and Futures (Licensing and Conduct of Business) Regulations 2002.
|
|
|
| 1.9 |
KES may, for the purpose of depositing monies or securities received on account of the Client which are denominated in a foreign currency in a trust account, maintain a trust account with a custodian outside Singapore which is licensed, registered or authorised to conduct banking business in the country or territory where the account is maintained.
|
|
|
| 1.10 |
The Client acknowledges that KES may place monies received on account of the Client in an omnibus customer trust account together with monies that KES holds for other clients. As such the Client further acknowledges that it would be administratively and operationally difficult, if not impossible (in view of the constant fluctuation of the aggregate balance in such account), to account separately for each of KES's clients the interest due on their cash balance in the omnibus account as interest will be received on an aggregated basis. In any event, it is also acknowledged and accepted that such an exercise would be likely to cost more than any interest earned. In these circumstances, it is a condition that the Client waives and relinquishes in KES's favour all claims for interest that may otherwise accrue with respect to the Client's said monies received by KES on the Client's account.
|
|
|
| 1.11 |
The Client consents that KES may hold monies received on account of the Client on trust in the forms of investment stipulated in Regulation 20 of the Securities and Futures (Licensing and Conduct of Business) Regulations 2002.
|
|
|
| 1.12 |
The Client acknowledges that any securities belonging to the Client which are deposited with KES may be held with securities held by KES for other clients on an aggregate or omnibus basis. This may in some instances result in prejudice to the Client and the Client accepts and consents to this. |
|
|
| 1.13 |
Excess Funds
The Client acknowledges that as a general rule excess funds of the Client unless title transferred in favour of KES will be held commingled with excess funds of other clients (also not title transferred in favour of KES) of KES in a trust account in accordance with the provisions of the Securities and Futures (Licensing and Conduct of Business) Regulations 2002. The Client hereby grants KES the authority at its discretion to pool any excess funds in the Client's trust account with those of other KES's clients and at its further discretion to place such funds with either an interest-paying institution or with a fund manager for management with intent to enhance returns on such excess funds by way of investing the same in money market funds. The Client acknowledges that such placement is at KES's discretion and KES shall have no liability or responsibility if no such placement is made and so long as a placement is made in good faith. As the returns from the funds placed will be returns on a fluctuating amount, it is neither practical nor feasible to calculate the amount pro rata due to the Client and thus the Client accordingly agrees to waive entitlement to claim the returns actually due to the Client's amount of excess funds in return for KES paying the Client out of the overall returns from the funds, of which the Client's excess funds is a part of, the returns as KES in good faith deems appropriate. It is KES's objective to try and ensure that the Client receives a return that is at least equivalent to the average interest payable on savings accounts at local banks in Singapore or any other rates as may be decided by KES from time to time but KES shall not be liable if for any reason the said overall returns is not, in KES's good faith determination, sufficient for KES to pay each of its clients (including the Client) the minimum interest that it is KES's said objective to try to pay to the Client out of the same and KES only pays out to the Client a lesser sum or no sum at all by way of interest. |
|
|
| 1.14 |
Interest
The Client agrees to pay interest on all sums due to KES after as well as before judgment at such rate(s) of interest as may be determined from time to time by KES, and whether or not prior notification thereof has been given to the Client. Foreign currency denominated accounts (eg. M$ or HK$) are charged different interest rates. Interest shall be settled in S$ at an exchange rate to be determined by KES. Interest shall accrue on a daily basis on a 365-day year or 366-day leap year for all outstanding sums due from the due date to the date of full payment. |
|
|
| 1.15 |
Set-off
KES shall be entitled, without prior notice to the Client, to set-off any debts liabilities or amounts owing by the Client against any amounts due to the Client or any monies held on behalf of the Client or to which the Client is beneficially entitled including any monies held on trust or as collateral or in the trust account for the Client whether the debts are actual or contingent and irrespective of any differences in currency. KES shall be entitled to effect such currency conversions and at such rates of exchange as KES may in its absolute discretion deem necessary or appropriate in order to effect such set-off. |
|
|
| 1.16 |
Lien
The Client agrees that all Client's Property shall be subject to a general lien in favour of KES for the discharge of all or any indebtedness and other obligations of the Client to KES. The Client shall not be entitled to withdraw any monies or securities held by KES pending the repayment in full to KES of any indebtedness of the Client to KES. KES shall be entitled at any time and without prior notice to the Client to retain apply sell or dispose of all or any of the Client's Property if any such obligation or liability is not discharged in full by the Client when due or on demand in or towards the payment and discharge of such obligation or liability, and KES shall be under no duty to the Client as to the price obtained or any losses or liabilities incurred or arising in respect of any such sale or disposal. |
|
|
| 1.17 |
Charge
(a) As a continuing security for the payment and satisfaction on demand of all monies and liabilities and the performance of all obligations hereunder which are now or any time hereafter may be due, owing or incurred by the Client to KES, the Client hereby charges to KES, free of all encumbrances and adverse interests, by way of first fixed and equitable charge of all securities which are or have been deposited with or are held by KES or its nominee, by way of a first fixed legal mortgage all securities, the title to which has been transferred by the Client or its nominee to KES or its nominee, in each case, including dividends, rights, monies or property accruing in respect thereof.
(b) The Client shall, upon request by KES, forthwith execute all such transfers and other documents as may be necessary to enable KES or its nominee to perfect the charge, to be registered as owner of, or otherwise to obtain legal title to, any securities deposited with or held by it and which are charged to KES pursuant to Clause 1.17(a) above.
(c) Subject to KES being satisfied that all obligations and liabilities of the Client under the Account have been duly performed or observed, KES may re-transfer or re-deliver any securities charged to KES at any time and shall do so upon request by the Client.
(d) Nothing in this Clause shall restrict the operation of any general lien or other rights or lien whatsoever which KES may be entitled to under the general law.
|
|
|
| 1.18 |
Power of Attorney
The Client hereby irrevocably appoints KES, through any of its Directors or officers as the attorney of the Client for each and all of the purposes of these T&C and with the power to sign and execute all documents and perform all acts in the name and on behalf of the Client to facilitate any transactions under or pursuant to the Account or to implement or perform any of the Client's duties or responsibilities herein or the enforcement of these T&C or to give effect or substance thereto. |
|
|
| 1.19 |
Ratification
The Client agrees to ratify and confirm any and all acts and things done or caused to be done by KES for and on behalf of the Client or otherwise in relation to the Account, or any of the services provided by KES or any thing done pursuant to these T&C. |
|
|
| 1.20 |
Representations And Warranties
The Client represents, warrants, agrees and undertakes that:
(a) it has full capacity and authority to accept and agree to these terms and conditions, to open, maintain and/or continue to maintain all Account(s) from time to time opened and/or maintained and/or continued to be maintained with KES, and to give KES orders thereon;
(b) it has read, understood and accepted the terms of the Risk Disclosure Statement, that the Risk Disclosure Statements are not substitutes for taking independent advice, and that no transaction will be entered into in reliance on any statement, advice or information by KES;
(c) it has all authorisations, consents, licences or approvals (whether under applicable laws or otherwise) required to accept and agree to these terms and conditions, to open, maintain and/or continue to maintain all Account(s) from time to time opened and/or maintained and/or continued to be maintained with KES, and to give KES orders thereon;
(d) the Client is not an employee of any governmental or self-regulatory organisation in any jurisdiction, including any exchange or a member firm thereof, or engaged in the business of dealing (either as agent or principal) in any of the property traded under the Account(s), and the Client shall promptly notify KES if it becomes so employed;
(e) unless agreed by KES, no person other than the Client has an interest in any Account;
(f) except with the express written consent of KES, and except for any security or encumbrance created hereunder, no person has or will have any security or other encumbrance over any Account and/or over any cash or property in any Account;
(g) any orders placed or any other dealings in the Account(s) is solely and exclusively based on its own judgment and after its own independent appraisal and investigation into the risks associated with such orders or dealings;
(h) KES shall not be under any duty or obligation to inquire into the purpose or propriety of any order and shall be under no obligation to see to the application of any funds delivered by the Client in respect of any Account; and
(i) any person(s) empowered to act on the Client's behalf have been duly authorised.
|
|
|
| 1.21 |
Repetition
The above representations, warranties, agreement and undertakings shall be deemed repeated whenever the Client gives orders to KES, enters into any transactions or establishes a new Account with KES. |
|
|
| 1.22 |
Service of documents and notices
Any documents and notices served on the Client by KES may be in writing and addressed to the Client's address stated in the Account Application Form or any agreements entered into between the Client and KES or any other address as the Client may notify KES in writing from time to time and shall be deemed to have been duly served and effective 48 hours after posting or, if sent by telex facsimile or any other electronic means, upon despatch or, if served by hand, upon delivery. Whenever the Client receives any statements of account contract notes or any document in connection with the Account, the Client agrees that he will inform KES of any mistake omission or disagreement within seven (7) days from the date the same was posted/delivered or such other duration as may be stipulated in the said document. If the Client fails to do this, he agrees he no longer has the right to dispute the accuracy of the statement note or document. Accordingly, KES has the right to treat the Client's silence as the Client's representation that the statement note or document is accurate. However, should KES discover at any time that the statement note or document is inaccurate, KES can still amend the same. |
|
|
| 1.23 |
Waiver
No act omission or forbearance by KES or any of its employees or agents shall constitute a waiver of any of KES's rights. |
|
|
| 1.24 |
Indemnity
The Client agrees to indemnify KES its employees and agents against all liabilities claims losses and expenses of any nature including legal costs (on a full indemnity basis) arising from or in connection with any transaction or instruction that may be carried out by KES on behalf of the Client or at the Client's request or the Client's access/use of the Internet Trading System or any breach of these T&C or the provisions of any agreement entered into between the parties or any action taken to enforce the same. |
|
|
| 1.25 |
Force majeure
KES shall not be held liable to the Client for any partial performance delay in performance or non-performance of any of its obligations under any agreement with the Client by reason of any cause beyond KES's control, including but not limited to any act of force majeure any breakdown or failure of transmission communication or computer facilities postal strikes or other industrial actions the failure of any exchange market or clearing house or failure of any relevant correspondent or other agent for any reason to perform its obligations war hostility riot civil commotion requisition by any government or any regional or local authority, or any agency thereof, or any law, regulation, edict, executive order or mandate of any such body or any act of God fire flood frost storm or explosion. The Client agrees that any and all securities documents and/or other personal property heretofore or hereafter deposited, whether held by KES or its agents, are at the Client's sole risk as regards any loss or destruction of or any damage to the same. |
|
|
| 1.26 |
Limitation of Liability
KES shall not be liable for any loss or damage whatsoever (including indirect or consequential loss, anticipated profits or punitive damages) that the Client may suffer or incur due to any act or omission of KES or any of its appointed agents or servants in the execution or performance of any transaction which it is authorised to do pursuant to the conditions herein or otherwise requested by the Client except for any act, omission or default caused by the wilful default, gross negligence or fraud of KES its officers or employees. Provided always that KES shall not be liable for any economic or consequential loss whatsoever that may be suffered by the Client. |
|
|
| 1.27 |
Disclosure
The Client agrees and consents to the disclosure by KES of any information and transactions, personal or relating to the Account to any exchange, regulatory body, department or agency of any government in charge of any exchange on which the Client had traded/will trade or to the issuer of any of the securities purchased/sold by the Client, or to any other person as may be reasonably required to administer implement or facilitate any transaction carried out for and on behalf of the Client. |
|
|
| 1.28 |
Joint Accounts
In the event that the Account is a joint account, the joint account holders agree as follows:-
(a) All duties obligations and liabilities owed by anyone of the joint account holders shall be owed by all the joint account holders jointly and severally.
(b) All joint account holders agree to be bound by the instructions given to KES by any one of the joint account holders.
(c) Delivery of share certificates to any joint account holder shall be sufficient delivery to all joint account holders.
(d) Payment made to any joint account holder shall constitute good discharge for KES.
(e) In the event of the death of any joint account holder, the other joint account holder(s) will have the right of survivorship and KES is instructed to pay all monies or deliver securities to any one of the survivor(s).
|
|
|
| 1.29 |
Change of Particulars
The Client agrees to immediately notify KES in writing should there be any change in the particulars given in the Account Application Form or otherwise previously provided. Until notification of such change is received by KES, the Client shall absolve KES of any responsibility or liability resulting from KES's acting on the basis of the original particulars. |
|
|
| 1.30 |
Terms to govern once facility is used
Regardless of whether the Client has signed the required documentation, the Client will be deemed to have agreed to the T&C herein if the Client commences to trade through KES or to use or continue to use any of the services or facilities provided by KES, and the Client confirms that all transactions executed on the Client's instructions will be governed by these T&C. |
|
|
| 1.31 |
Amendment of T&C
The Client agrees to be bound by any variations or amendments to these T&C as may be determined by KES from time to time (whether with prior notice or otherwise). No trading representative or remisier may waive or vary any of KES's rights under these T&C nor may they accept any liability on KES's behalf. |
|
|
| 1.32 |
Termination by notice
The Account may be terminated by either party giving the other seven (7) business days' notice in writing (without having to give any reason). Upon termination, any and all indebtedness whatsoever owing to KES shall fall due and be immediately payable to KES by the Client, and KES shall be entitled to exercise all such rights and powers under these T&C including the liquidation and sale in such manner as KES deems fit all or any of the Client's securities collateral or property (whether charged/secured to KES or otherwise in KES's custody and control) and to use the proceeds thereof to pay and satisfy the Client's indebtedness. KES is also authorised to deliver (as soon as is practicable thereafter) any securities held by it to the Client or the Client's successors in title after repayment of any debt balance and after deduction of KES's outstanding fees and expenses, if any. Such notice to terminate shall not be a waiver of any obligations already accrued to each party and these obligations shall continue to be governed by these T&C until such obligations are fulfilled and concluded. |
|
|
| 1.33 |
Successors In Title And Assigns
These T&C shall be binding on KES and the Client and their respective successors in title and assigns. These T&C shall also continue to be binding on the Client notwithstanding any change in the name or constitution of KES or the Client, or the consolidation or amalgamation of KES or the Client into or with any other entity (in which case the terms shall be binding on the successor entity). |
|
|
| 1.34 |
Assignment by Client
The Client may not assign its rights hereunder or under any Account without the express written consent of KES. |
|
|
| 1.35 |
Assignment by KES
KES may assign any or all of its rights hereunder or under any Account to any person KES deems fit, or change the office through which any transaction is booked, or through which it makes or receives payments or deliveries for the purpose of any transaction. |
|
|
| 1.36 |
Service of Writ
In the event of any legal action being commenced against the Client, the Writ may be served on the Client by sending a copy thereof by pre-paid registered post to the address of the Client stated in the Account Application Form or such other address as may be notified in writing by the Client to KES. |
|
|
| 1.37 |
Invalidity of any Provision
If any of the provisions herein or any part thereof shall be adjudged invalid illegal or unenforceable in any respect, the validity legality and enforceability of the remaining provisions or any part thereof shall not in any way be affected. |
|
|
| 1.38 |
Laws and jurisdiction
The Client submits to the non-exclusive jurisdiction of the Courts of Singapore, but KES will be at liberty to proceed against the Client in any court in any jurisdiction. All transactions and agreements between the Client and KES shall unless otherwise agreed be governed by and interpreted in accordance with laws of Singapore. |
|
|
| 1.39 |
Interpretation
In the interpretation of these T&C -
(a) Reference to any statutory or regulatory provision includes a reference to that statute or regulation as amended extended or re-enacted.
(b) Words incorporating the singular shall also include the plural and vice versa and words importing the masculine gender shall include the feminine and neuter genders and vice versa.
(c) The headings contained in these T&C are for purposes of convenience only and shall not affect the construction of its provisions. For the avoidance of doubt the contents under the headings "General", "Trading", "Custodial Service", "Securities Lending", "Internet Trading" and "Electronic Payment for Shares ("EPS") Service are not intended to be mutually exclusive; the provisions in each section are without prejudice to the generality and application of the T&C and should be read as a whole. |
| |
|
|
|
| 2.1 |
Rules governing transactions
The Client agrees that all transactions instructed by the Client shall be governed by the rules bye-laws customs directives and practices of Singapore Exchange Securities Trading Limited ("SGX-ST") and/or such other exchange or market where the transactions are effected and/or any relevant regulatory authorities. Further, all such transactions shall be subject to these T&C (as amended or varied from time to time) and restrictions as KES shall determine at its sole discretion. |
|
|
| 2.2 |
Settlement
(a) In respect of securities not issued by KES, KES acts only as a seller of such securities and shall only be responsible to the Client for due execution of the Client's order and delivery of such securities in accordance with the terms of the transaction. KES shall not be responsible for the underlying obligations of such securities and shall not be responsible for payment of any amounts due in respect of such securities in the event of default by the relevant issuer of such securities (the "Issuer"), or any calculations, determinations or adjustments made by the Issuer in respect of such securities. The Client shall look solely to the Issuer of such securities for settlement of the underlying obligations.
(b) KES shall act as the Client's agent in respect of any settlement amounts due payable and received from an Issuer in respect of the relevant securities, and shall pay such sums to the Client or any other person, or use such sums for further purchases or transactions, as instructed by the Client from time to time.
|
|
|
| 2.3 |
Investment decisions / Non-advisory nature of relationship
(a) The Client confirms and accepts that KES provides no investment tax or legal advice nor does KES give advice offer any opinion or recommendation regarding any securities or orders. The Client is solely responsible for all investment decisions made by him and for determining the nature potential value and suitability of any particular securities transaction or investment strategy. The Client does not rely on anything said or written by KES (including sources by electronic form or otherwise) when he transacts in securities. The Client accepts that all instructions or orders to KES are placed upon the Client's own independent judgment and without any reliance on any investment advice or comments from KES or its trading representatives. The Client is aware that trading representatives do not have the authority to give any investment advice nor make any recommendation with respect to any securities or markets on behalf of KES. If trading representatives give advice incidental to their dealings in securities, the Client acknowledges that such advice is given in the trading representatives' personal capacities.
(b) Without prejudice to or detracting from Clause 2.3(a), the recommendation or advice the Client may receive from any of KES's representatives or officers accounts may be general or specific and the Client needs to understand and take note of the different implications of each type of advice received.
(c) It is a material part of the Client being allowed to open and maintain an account with KES that the Client agrees that while he has the option to decide whether he wishes to provide KES with the information and answers KES requests of him in the Client Investment Profile and such supplemental information and answers as KES may ask him as are reasonably relevant in the circumstances, the Client has the obligation if he chooses to do so to provide KES answers in full and not in part. The Client therefore agrees that partial or incomplete provision of information and answers may be disregarded by KES and he may be treated as having refused and provided no answers or information. Where the Client has provided KES full information and answers, it shall also be his obligation to keep such information current and accurate, failing which KES is entitled to assume that the information and answers provided remain complete and accurate. Where the Client has failed or refused or deemed to have failed or refused to provide KES with any information or answers as requested then he will also be taken as having acknowledged (and KES will be regarding and materially relying on him having acknowledged) that KES cannot identify with any certainty his investment objectives, financial circumstances and particular needs and therefore he agrees that any advice or recommendation provided in respect to his account with KES by any of KES, its duly authorized representatives or officers shall be treated as at best only as general advice or recommendation and it is acknowledged and agreed that such advice does not take into account and may not be suitable for his investment objectives, financial situation and particular needs.
(d) The Client also acknowledges and agrees that a distinction should be made with respect to any advice or recommendation that is given on a solicited basis from one given on an unsolicited basis. An advice or recommendation is to be regarded as having been given on an unsolicited basis if it is given otherwise then in response to the Client's query or request.
(e) Except if given pursuant to a specific advisory services agreement (and for the payment of an agreed and additional fee for such advice or recommendation), the Client must and should regard any advice or recommendation given in response to his request or question as in the nature of general advice or recommendation and again it is acknowledged and agreed that such advice may not be suitable for his investment objectives, financial situation and particular needs.
(f) Only if the Client has provided full information and answers as requested by KES in the Client Investment Profile and KES's supplementary questions and requests and then only in respect of unsolicited advice and recommendations from a duly authorized representative or officer duly authorized to give such advice and recommendations is the Client entitled to regard the advice and recommendation given as specific advice given after having taken into account his investment objectives, financial situation and particular needs as may be reasonably inferred from his answers. Please note in relation to the preceding that no trading representative has any authority to give any advice or make any recommendation on KES's behalf or on KES's account unless specifically authorized to do so by a duly authorized officer of KES. In any other case, the trading representative if he gives any advice or recommendation to the Client must be assumed and accepted as having given the same without authority from KES in his own personal capacity. |
|
|
| 2.4 |
Foreign exchange risks
The Client hereby agrees and acknowledges that in the event the Client directs or instructs KES to carry out any transactions on the Client's behalf on an exchange or market on which such transactions are effected in a foreign currency, unless the Client indicates to the contrary at the time of the giving of instructions to carry out any such transactions, all such transactions shall as between KES and the Client be settled in Singapore Dollars at a rate of exchange determined by KES in its sole discretion on the basis of the then prevailing money market rates of exchange between such currencies. If KES agrees, transactions in the Account may be settled in any other currency requested by the Client, but at a rate of exchange decided by KES. The Client shall bear any losses damages costs or expenses that may result from any currency conversion effected as aforesaid. |
|
|
| 2.5 |
Margin financing with other institution
In the event that the Client concurrently maintains another trading account through a financial institution for the purpose of providing share margin financing to the Client, the Client authorises KES to transfer any transactions he may have effected as agent for the said financial institution in that account to this account should the said financial institution so request. In the event that the Client obtains financing from a bank or other institution on an adhoc basis, the Client authorises KES to deliver securities to such financing bank or institution as his trading representative may from time to time instruct. |
|
|
| 2.6 |
Delinquent/Disputed account
The Client understands that KES may report all delinquent and disputed accounts. The Client further consents to the reporting of the pertinent particulars relating to his account, including but not limited to, his name address and NRIC/Passport number and claim amount and such other appropriate information, in the event that his account is classified by KES at its sole discretion as delinquent or disputed. |
|
|
| 2.7 |
Events of Default
A 'Default' shall be deemed to occur if:
(a) the Client has failed to comply with any of its obligations hereunder or under any Account or transaction;
(b) (in the event the Client is an individual) the Client shall die, become bankrupt or insane, commit an act of bankruptcy, or have action to place the Client in bankruptcy commenced against it;
(c) (in the event the Client is a partnership) any of the partners thereof shall die, become bankrupt or insane, commit an act of bankruptcy, or have action to place him/her in bankruptcy commenced, or if action is commenced to dissolve and/or alter the partners or the constitution of the Client;
(d) (in the event the Client is a corporation) the Client shall be unable to pay its debts as and when they are due, or action is commenced to place the Client in insolvency, judicial management, receivership, administrative management, or any similar or analogous proceedings;
(e) any claim, action or proceeding of any nature is commenced against the Client, or steps are taken by any person to enforce any security against the Client;
(f) the Client makes any compromise or arrangement with its creditors; or
(g) KES forms the view, in good faith, that it should take action in order to preserve its rights or interests under any Account or under its relationship with the Client,
Provided That in the case of transactions effected otherwise than on an exchange, in the event of a Default under Clause 2.7(b), (c) or (d), all outstanding transactions (including any transaction which has not been performed and in respect of which the value date as determined by KES is on or precedes the date on which KES terminates such transaction) entered between the Client and KES shall be deemed immediately liquidated or at such other time as KES may determine at prevailing prices (or, if not available, at such prices KES deems fit) and the amounts resulting converted into Singapore dollars or such other Currency as KES may from time to time use as the principal currency of its business (together with all margin duly converted into Singapore dollars or such other currency as KES may from time to time use as the principal currency of its business) at KES's prevailing rates and set-off against each other and the margin prior to KES resorting to its rights under Clause 2.8 and/or payment or repayment to the Client (if applicable). |
|
|
| 2.8 |
Rights On Occurrence Of An Event Of Default
Without prejudice to any other right of KES hereunder or otherwise at law, in the event of Default, KES may (but is not obliged to) immediately or at any time thereafter, do any one or more of the following:
(a) suspend (indefinitely or otherwise) or terminate any Account, or KES's relationship with the Client and accelerate any and all liabilities of the Client to KES so that they shall become immediately due and payable;
(b) hedge and/or close out any outstanding transaction (including any transaction which has yet to be settled on the date on which KES terminates such transaction) by determining its value in good faith as of the date of the close-out as soon as practicable after the close-out;
(c) liquidate the margin or part thereof at a price which KES deems appropriate in the circumstances;
(d) call upon any security including but not limited to any guarantees and letters of credit which may have been issued to or in favour of KES as security for the Account(s);
(e) apply any amounts of whatsoever nature standing to the credit of the Client against any amounts which the Client owes to KES (of whatsoever nature and howsoever arising, including any contingent amounts), or generally to exercise KES's right of set-off against the Client;
(f) demand any shortfall after (e) above from the Client, hold any excess pending full settlement of any other obligations of the Client, or pay any excess to the Client by way of cheque to the last known address of the Client; and/or
(g) exercise such other authority and powers that may have been conferred upon KES by these T&C.
|
| |
|
| 2.9 |
Extraordinary Event
If there occurs in relation to any transaction (otherwise than on an exchange) or otherwise in relation to an Account or Accounts an Extraordinary Event (as defined below), KES shall have the sole discretion to determine any adjustments or action necessary in relation to such transaction or any or all transactions or otherwise to an Account or Accounts in view of the Extraordinary Event. Such adjustments or actions may include altering or varying the quantities of currencies or financial instruments or the exchange rates or specifications of currencies or instruments bought or sold in respect of such transaction or some or all transactions, or terminating the transaction in question or some or all transactions, or an Account or Accounts or otherwise. Provided KES undertakes such action in good faith, any such adjustment or action shall be binding on the Client who shall be liable for any additional loss incurred by KES on the account of the Client or which the Client is consequently liable for as a result of such adjustment or action.
An 'Extraordinary Event' shall mean any event which KES in good faith believes to have a material adverse effect on any transaction and shall include without limitation any form of exchange control restriction or requirement of whatsoever nature affecting availability, convertibility, credit or transfers of currencies, financial instruments or funds, any form of debt or other moratorium on jurisdictions, individuals or entities, any devaluation, redenomination or demonetisation of the underlying currencies or financial instruments of any transaction and/or any form of restriction or requirement which in KES's good faith opinion adversely alters or changes the rights or obligations which KES in good faith undertook upon the establishment of such transaction.
|
|
|
| 2.10 |
Right to force sell
The Client understands that if he does not pay for any securities purchased by the due date, KES shall have the right to force sell any or all of these securities in such manner as it deems fit. KES may (but need not) exercise this right on any day after the day on which the right to force sell first arose. KES will not be liable to the Client for any losses suffered by the Client as a result of any fall in the market price of the security between the first day the right to force sell arose and the day it actually sells the securities or as a result of any failure to force |
|
|
| 2.11 |
Buying-In
Before placing an order for the sale of shares, the Client shall ensure that the relevant shares are available for delivery and will constitute good delivery thereof on the settlement date of the transaction. If delivery of shares is not made on the settlement date, KES shall have the right to buy-in immediately and bill the Client for the difference. KES will not be liable to the Client for any loss suffered by the Client as a result of any rise in the market price of the securities between the time the right to buy-in arose and the time it actually buys the securities. |
| |
|
|
|
| 3.1 |
General
The Client hereby requests KES to provide custodial services (the "Custodial Services") in respect of such securities of the Client as KES may in its sole discretion accept and receive (the "Custody Securities"), in accordance with the terms and conditions set out in this Clause 3. In doing so, the Client acknowledges and accepts that nothing in this Clause 3 shall have the effect of constituting KES as a fiduciary of the Client or otherwise with respect to the Custody Securities, any relationship of trustee and beneficiary between KES and the Client, or any further relationship other than as expressly contemplated in this Clause 3. |
| |
|
| 3.2 |
Bare Custodial Services |
| |
|
| 3.2.1 |
Unless otherwise agreed, KES shall receive and hold in custody the Custody Securities. Subject to the Client's acknowledgement in any event that KES as custodian is not a fiduciary to the Client or otherwise with respect to the Custody Securities but shall be regarded generally only as a bare custodian and not trustee of the Custody Securities, the duties of KES hereunder shall be:
(a) to hold or procure to be held to its order all documents evidencing ownership of the Custody Securities and identify in its books that all Custody Securities belong to the Client;
(b) to procure that all Custody Securities other than bearer securities are registered in the name of KES, or such other nominee or nominees as KES or any sub-custodian (as the case may be) may appoint in accordance with Clause 3.3 or, where due to the nature of the law or market practice of any relevant jurisdiction, it is in the Client's best interests or it is not feasible to do otherwise, any sub-custodian. In these circumstances, the Custody Securities will still be held in such a way that it is readily apparent that the Custody Securities are not the property of KES, any sub-custodian or any nominee appointed by KES or any sub-custodian (as the case may be). The Custody Securities may be registered collectively with other securities both of KES and/or other clients of KES in the same name and where so registered, the Client's entitlements under the Custody Securities may not be identifiable by separate certificates or other physical documents of title or equivalent electronic records (although KES and/or its delegate(s) will maintain records such that it will be readily apparent the degree of the Client's interest in the commingled securities so collectively held but on the express understanding and agreement of the Client that where such commingling and aggregation of the Custody Securities of the Client and the securities of other persons result in entitlements to any dividends, interest and other monies payable in respect of the Custody Securities and all other rights, benefits and proceeds in respect of or derived from the same (whether by way of redemption, bonus, preference, option, substitution, conversion or otherwise) (the "Related Assets") which otherwise without such commingling or aggregation would not have accrued to the Custody Securities (the "Bonus Related Assets"), KES has full discretion as to the allotment of such Bonus Related Assets as amongst its clients, including the Client as it deems fit). Should KES, any sub-custodian or, as the case may be, its nominee default, any shortfall in the securities registered in that name may be shared pro rata among all clients of KES or sub-custodian whose securities are so registered;
(c) to hold or procure that there are held in safe custody all Custody Securities that are bearer securities and ensure that such Custody Securities are held in such a manner that it is readily apparent that they are not the property of KES or any sub-custodian. Such Custody Securities shall be segregated by KES or any sub-custodian (as the case may be) from all property of KES or sub-custodian and shall be identified as held by KES or sub-custodian for the account of the Client. Where any Custody Securities are in uncertificated form, or otherwise transferable by book-entry transfer, KES may use the services of any securities depositary, on such terms as it may think fit, for the purpose of the holding and transfer of such Custody Securities (or entitlements thereto);
(d) except to the extent permitted or not prohibited by the Securities and Futures Act (Cap. 289) or its regulations (including but not limited to Regulation 26 of the Securities and Futures (Licensing and Conduct of Business) Regulations 2002), to hold and/or procure that any sub-custodian holds securities, if registered in the same name as investments of KES or the sub-custodian, in an account designated separately from that used for investments of KES or sub-custodian (as the case may be);
(e) on receipt of the Client's instructions or with the Client's authority to make or accept delivery of the Custody Securities which have been sold, purchased, transferred or otherwise acquired or lent or disposed of by the Client or its agent, such acceptance or delivery to be made in accordance with the normal practice for transactions of the type concerned;
(f) to use its reasonable endeavours to collect and receive Related Assets including income and other payments due with respect to the Custody Securities provided that the Client acknowledges and accepts that KES (whether directly or through any delegate or agent) shall have no duty or responsibility but is entitled, if so chooses to:
(i) exercise or discharge any obligations conferred or imposed by reason of KES's holding of the Custody Securities or to investigate, participate or take any affirmative action in connection therewith or otherwise;
(ii) send or give notice of any proxy form or other document which KES may receive in respect of the Custody Securities;
(iii) recognise any claim in the nature of a trust or equitable claim by anyone other than the Client in respect of the Custody Securities or any part thereof; or
(iv) otherwise make any notification to the Client in respect of the Custody Securities, or take any other action in relation to the Custody Securities;
(g) to credit, in such manner as the Client shall instruct, all income and other payments received by KES under paragraph (f) of this Clause 3.2;
(h) to sign, execute and/or complete such documents, certificates or forms from time to time required for fiscal and taxation purposes in connection with the collection of income from the Custody Securities including bonds and note coupons; and
(i) to keep or (to the extent reasonably practicable) procure there to be kept by any sub-custodian, or any nominee appointed by KES or any sub-custodian (as the case may be), such books, records and statements, in retrievable form, as may be necessary to provide an adequate record of all Custody Securities held and transactions carried out by or on behalf of the Client. |
| |
|
| 3.2.2 |
KES may refuse to act as custodian in relation to any securities it deems unsuitable to be held hereunder without giving any reason or being liable for any loss thereby occasioned. |
|
|
| 3.3 |
Nominees / Delegates
KES is authorised to utilise one or more nominee(s) or sub-custodians for the purpose of providing the Custodial Services. In the event that a nominee is being used, the Client is deemed to have contracted as principal with such nominee. KES may utilise the services of a foreign custodian as nominee or sub-custodian where it deems this to be necessary, and the Client hereby expressly consents to such utilisation. Where the Custody Securities are held by a nominee or sub-custodian, KES shall separately agree in writing the requirements specified in Regulation 32 of the Securities and Futures (Licensing and Conduct of Business) Regulations 2002 but otherwise the Client acknowledges and accepts that different settlement, legal and regulatory requirements and different practices relating to the segregation of those Custody Securities may apply. In addition, KES and any nominee, sub-custodian, agent or delegate may deposit the Custody Securities with, and hold the Custody Securities in, any centralised securities depositary, clearing house or securities depository agencies on such terms as such systems customarily operate. The Client agrees that where the context permits, any reference to KES herein shall also include a reference to its nominee, sub-custodian and/or any other person appointed by KES in accordance with this Clause. |
| |
|
| 3.4 |
Fees and Charges |
| |
|
| 3.4.1 |
In consideration of KES's provision of the Custodial Services, the Client hereby agrees to pay to KES such fees (exclusive of any goods and services tax or other relevant tax) as may be determined by KES and notified by KES to the Client. |
| |
|
| 3.4.2 |
The Client shall, on demand, pay to or reimburse (or shall procure payment to or reimbursement of) KES for all expenses (including without limitation, management or supervisory fees, agents' and other adviser's fees, disbursements and operating expenses) incurred by KES, its nominees, sub-custodians or agents in connection with:
(a) the performance by KES of its obligations hereunder; and
(b) the enforcement or preservation by KES of its rights hereunder,
together with any applicable goods and services tax or other relevant tax. |
| |
|
| 3.4.3 |
The Client hereby authorises KES with a preadvice of 10 calendar days to debit any of the Client's Account(s) with, and/or (without prejudice to the generality of Clause 3.16) to set-off against any Related Assets, all amounts due or which may become owing by the Client to KES hereunder, together with any applicable goods and services tax or other relevant tax. |
|
|
| 3.5 |
Delivery of Custody Securities
All Custody Securities delivered or to be delivered to KES from time to time for the purposes of this Clause 3 must be in the required or regular form in board lots and in good delivery order, or must be transferred and deposited into such account as KES shall direct. Where applicable, all unmatured coupons and duly executed transfers must be attached thereto. |
|
|
| 3.6 |
Representations and Warranties
The Client hereby warrants and undertakes to KES that:
(a) the Client is the beneficial owner of the Custody Securities or has authority from the true owner to deal with such Custody Securities;
(b) the Custody Securities are fully paid for, in the required or regular form and in good delivery order; and
(c) there is no defect in title, security interest or encumbrance affecting the Custody Securities.
|
|
|
| 3.7 |
Custodial Duties and Powers
KES shall in addition to the powers set out in Clause 3.2.1(f) be entitled to do, subject and on receipt of the Client's instructions to the contrary, any other act or refrain from doing any other act unless (as the case may be) prohibited or required by law or regulation, in relation to any Custody Securities, which under the terms of the Client's agreement with KES, KES is not specifically (as the case may be) either prohibited or required to do. Without prejudice to the foregoing the Client hereby specifically instructs KES that, until it receives written instructions to the contrary, whenever the Client purchases securities through it, and the sums standing to the credit of the Account in which the Custody Securities are held are sufficient to satisfy the purchase price of the Custody Securities purchased, KES is to withdraw from such Account such sum as is equal to the purchase price and appropriate such sum to KES in satisfaction of the Client's obligation to pay the purchase price, or where the shares are contra sold, to use such sums for any contra losses incurred (if any). Also without prejudice to any of the foregoing, any amount payable by the Client in respect of the Custodial Services shall be payable to KES or its nominees, sub-custodians or agents (as the case may be) on demand and may be deducted from the Custody Securities or the said Account. |
| |
|
| 3.8 |
Exclusion of Liability |
| |
|
| 3.8.1 |
KES shall not be liable for any loss, claim, damage, expense or liability suffered or incurred by the Client, or profit or advantage of which the Client may be deprived, which arises from or in connection with:-
(a) the manner in which KES holds the Custody Securities hereunder or deals with monies received or intended to be received in connection herewith;
(b) the loss, theft or destruction of, or any damage to, any of the Custody Securities or certificates relating thereto; or
(c) the performance or non-performance of KES's duties hereunder,
except insofar as the same arises as a result of the negligence, fraud and/or wilful default of KES. |
| |
|
| 3.8.2 |
While KES will use reasonable care in the selection of any nominee, sub-custodian, agent or delegate, KES shall not be liable for any loss, claim, damage, expense or liability suffered or incurred by the Client or profit or advantage of which the Client may be deprived, which arises from or in connection with:
(a) the insolvency of any sub-custodian or nominee; or
(b) any act or omission of any sub-custodian or nominee,
unless in the case of (a), the relevant sub-custodian or nominee is a branch or subsidiary of KES and, in the case of (b) above, only to the extent that the same arises as a result of the negligence, fraud or wilful default of the relevant sub-custodian or nominee. |
| |
|
| 3.8.3 |
KES shall not be liable for any act, omission or insolvency of any entity providing central depository, clearing and/or settlement facilities. |
| |
|
| 3.8.4 |
The Client acknowledges and agrees that KES shall be under no duty to supervise compliance by the Client with any restrictions on the investment powers of the Client. |
| |
|
| 3.8.5 |
KES shall not be liable or have any responsibility to the Client for any loss or damage incurred or suffered by the Client if the performance of KES's obligations is interrupted, delayed or prevented by circumstances, acts or events beyond its control. These shall include but not be limited to industrial disputes, acts or regulations or any governmental or supranational bodies or authorities and breakdown, failure or malfunction of telecommunications or computer service or systems. |
| |
|
| 3.9 |
Statements and Information |
| |
|
| 3.9.1 |
KES shall provide or procure the provision to the Client with such reports and statements concerning the Custody Securities and at such intervals as agreed between them from time to time. |
| |
|
| 3.9.2 |
KES may, on the request of the Client and subject to payment by the Client of such fee as may be determined by KES and notified by KES to the Client, furnish to the Client such information in respect of the Custody Securities as the Client may reasonably request. |
|
|
| 3.10 |
Return of Custody Securities
The Client shall not have any right to specific securities custodised with or through KES, but will be entitled, subject to these T&C, to delivery by KES of securities of the same class, denomination and nominal amount, and which rank pari passu with those accepted by KES as being the Custody Securities, subject always to any capital reorganisation or share exchange which may have occurred. Such delivery may be to the Client or any specified third party. |
|
|
| 3.11 |
Authorisations
In addition and without prejudice to the foregoing, KES is authorised (but not obliged), either by itself, through a nominee (if so, subject to Clause 3.3 above) or otherwise, and whether in Singapore or elsewhere to do any lawful act or thing which in the discretion of KES is necessary to preserve the integrity of the Custody Securities and/or any Account and/or to protect the reasonable interests of the Client and/or KES. |
|
|
| 3.12 |
Client Primarily Liable
Notwithstanding that the Client may as between himself and a third party be effecting transactions on and/or in respect of any part or all of the Custody Securities for and on behalf of such third party, as between the Client and KES, the Client shall be deemed to be, and is, transacting as sole principal. The Client acknowledges, undertakes and agrees to be always primarily liable for such transactions in all or part of the Custody Securities. |
| |
|
| 3.13 |
Orders/Instructions |
| |
|
| 3.13.1 |
KES need only act on instructions (oral or otherwise) from the Client in respect of any Account or any part or all of the Custody Securities. KES shall not be required to act in accordance with any instruction from the Client which purports to dispose of or deal with any securities or other property which are in fact not held in any Account and/or which are not in fact the Custody Securities. |
| |
|
| 3.13.2 |
KES shall only be required to act on or effect any instruction from the Client within a reasonable time. For the avoidance of doubt, in the event that the Client wishes to withdraw any part or all of the Custody Securities, the Client shall give at least seven (7) days' notice to KES prior to such withdrawal. |
| |
|
| 3.13.3 |
Any instructions (oral or otherwise) purported to be given by any person other than the Client, need not be acted on by KES but KES is authorised to act on any and all such instructions which KES in good faith has reason to believe is from the Client as soon as such instructions have been received by KES without requiring written confirmation thereof. KES shall not be liable for any loss, damage, cost, charge and expense incurred by the Client as a result of KES so acting. |
|
|
| 3.14 |
Security
In addition and without prejudice to the foregoing, all Custody Securities are hereby charged by way of first fixed charge to KES as continuing security for all of the Client's liabilities to KES whether the same accrue under or pursuant to any Account or otherwise. Clause 1.17 will apply mutatis mutandis to the security created under this Clause. Save for the charge mentioned in this Clause, the Client will not create nor will he allow to be created any security interest of whatsoever nature over any part or all of the Custody Securities without the prior consent in writing of KES. |
| |
|
| 3.15 |
Creation of Further Security and Use Rights |
| |
|
| 3.15.1 |
Notwithstanding any provision to the contrary in any terms governing the Account(s) or the Custodial Services or Custody Securities, the Client agrees that with respect to all the Client's securities and other property that now or in the future is in KES's possession and/or control (whether posted as collateral to KES or otherwise), KES may:
(a) create over the said securities and other property any encumbrance in favour of a third party by way of security, re-security, charge, re-charge, pledge, re-pledge, hypothecation, re-hypothecation or otherwise to secure KES's obligations to a third party account (if mortgaged, pledged or hypothecated otherwise than on a pool basis and otherwise for an amount that does not exceed the aggregate amounts owed by all clients collectively in the pool to KES); and/or
(b) assign, invest, use or otherwise dispose of the said securities and other property for KES's own benefit either separately or together with identical property provided by other clients/parties. |
| |
|
| 3.15.2 |
The Client also agrees in connection with the foregoing that no compensation will be payable to the Client in connection with the exercise of KES's rights under this Clause 3.15 and that KES is the sole beneficiary of any fee or commission that KES may earn from any exercise of KES's rights under this Clause 3.15. |
| |
|
| 3.15.3 |
For the avoidance of doubt, KES reiterates that KES shall not be obliged with respect to any of the Client's securities or other property to retain the same in its possession or control (being entitled to treat all of the same as fungibles) or to retain for the duration of the Client's account with KES like securities or other property of equivalent amount. |
| |
|
| 3.15.4 |
KES's only obligation is, subject to the Client having discharged all the Client's existing obligations and properly terminated the Account(s) with KES and subject otherwise to KES's rights under the T&C (including any right of interim liquidation or sale of the Client's securities and other property) as the Client may be entitled to demand of KES, to return to the Client like securities and other property (as relevant) of equivalent amount. |
| |
|
| 3.15.5 |
The Client also agrees that notwithstanding any contrary provision elsewhere in the T&C that in the event of the Client's insolvency:
(a) KES has the right at KES's option to convert any obligation KES may otherwise have to return the Client securities and/or other property (other than cash) into an obligation instead to pay the aggregate market value for the same;
(b) subject such converted payment obligation to KES's general right of set-off (in addition to any other rights of set-off and/or consolidation of accounts or obligations KES may have at law or in contract); and/or
(c) KES shall be further entitled to immediately enforce the security created pursuant to this Clause 3.15 by way of disposing or otherwise dealing with any part or all of the Custody Securities using or employing any and all powers granted hereunder or otherwise to a mortgagee or chargee under the laws of Singapore. |
|
|
| 3.16 |
Set-Off Rights
Without prejudice to any other right which KES may have whether under law by the T&C or otherwise, KES is expressly conferred by the Client a right to effect a set-off against the Client's obligations to KES whether referable to the Client's Account(s), any money or credit balance in any Account(s) or any other account(s) maintained by KES for the Client's benefit (including the trust account KES are obliged to maintained for the Client pursuant to KES's obligations under the Securities and Futures Act (Cap. 289) and including such sum as KES may be otherwise be obliged to pay to the Client as a consequence of exercising KES's right of conversion under Clause 3.15 above effecting, as KES deems necessary or appropriate any currency conversion. |
|
|
| 3.17 |
Contra Losses
The Client agrees that
(a) no Custody Securities may be withdrawn if there are any contra losses outstanding; and
(b) if any contra loss is not paid within such time as KES may specify, KES is entitled to sell such of the Custody Securities as may be necessary to reimburse KES of such contra loss. |
|
|
| 3.18 |
Unclaimed Property
In the event there remain any monies and/or property of the Client in the Account or otherwise held by KES or its nominee sub-custodian or agent for and on behalf of the Client (hereafter referred to in this clause as "Property") which is unclaimed by the Client six (6) years after KES received such Property and KES determines in good faith that it is not able to trace the Client, the Client agrees that all Property then standing to the credit of the said Account or otherwise held by KES, its nominee, sub-custodian or agent (as the case may be) together with any property as may from time to time continue to accrue to that Property (whether by way of dividends, interest or otherwise) may forthwith be appropriated by KES to itself to utilise in any manner KES so wishes for its own benefit. The Client thereafter shall have no right whatsoever to claim such Property (or any other property as may accrue to it), the Client being deemed to have waived and abandoned all its rights to such Property (and any other property as may accrued to it) in favour of KES. |
|
|
| 3.19 |
Applicable Laws
KES's provision of the Custodial Services shall be subject at all times to all relevant or applicable statutes, laws, rules, regulations, directives and circulars (whether of governmental bodies or authorities or self-regulatory organisations in relation to which KES or any person or entity related to or associated with it is a member of) or otherwise. KES may take or refrain from taking any action whatsoever, and the Client shall do all things required by KES, in order to procure or ensure compliance with the applicable laws. |
| |
|
| |
|
| 4.1 |
Notwithstanding any provision to the contrary in these T&C as may be revised from time to time or the terms of any collateral or charge documentation with respect to the Client's securities and other property, including Custody Securities, the Client agrees that with respect to all the Client's securities and other property (including Custody Securities) that now or in the future is in KES's possession and/or control (whether posted as collateral to KES or otherwise) KES may:-
4.1.1 on a title transfer basis borrow for itself or to on-lend and/or directly on-lend the said securities and other property as principal as if it were the owner thereof to third parties in return (where Regulation 45 of the Securities and Futures (Licensing and Conduct of Business) Regulations 2002 so obliges KES) for KES holding (as between the Client and KES) for the duration of such on-lending any collateral KES may receive from KES's borrower(s) (and which KES will ensure will be of such amount as is required of KES to provide under the said Regulation) for the Client's benefit as security (whether singly or collectively with other clients of KES) for the return of the borrowed securities;
4.1.2 create over the said securities and other property any encumbrance in favour of a third party by way of security, re-security, charge, re-charge, pledge, re-pledge hypothecation, re-hypothecation or otherwise to secure KES's obligations to a third party account (if mortgaged, pledged or hypothecated otherwise than on a pool basis and otherwise for an amount that does not exceed the aggregate amounts owed by all clients collectively in the pool to KES); and/or
4.1.3 assign, invest, use and otherwise dispose of the said securities and other property for KES's own benefit either separately or together with identical property provided by other clients/parties.
|
| |
|
| 4.2 |
The Client also agrees in connection with the foregoing that no compensation will be payable to the Client in connection with the exercise of KES's rights hereunder and that KES is the sole beneficiary of any fee or commission that KES may earn from any exercise of KES's rights under Clauses 4.1.1 and 4.1.3 above. |
| |
|
| 4.3 |
For the avoidance of doubt, KES reiterates that KES shall not be obliged with respect to any of the Client's securities or other property to retain the same in its possession or control (being entitled to treat all of the same as fungibles) or to retain for the duration of the Client's account with KES like securities or other property of equivalent amount. KES's only obligation is, subject to the Client having discharged all the Client's existing obligations and properly terminated the Client's margin account with KES and subject otherwise to KES's rights under these T&C (including any right of interim liquidation or sale of the Client's securities and other property) as the Client may be entitled to demand of KES to return to the Client like securities and other property (as relevant) of equivalent amount. |
| |
|
| 4.4 |
The Client agrees that notwithstanding any contrary provision elsewhere in these T&C that in the event of the Client's insolvency:
4.4.1 KES has the right at KES's option to convert any obligation KES may otherwise have to return the Client securities and/or other property (other than cash) into an obligation instead to pay the aggregate market value for the same; and
4.4.2 subject such converted payment obligation to KES's general right of set-off (in addition to any other rights of set-off and/or consolidation of accounts or obligations KES may have at law or in contract).
|
| |
|
| 4.5 |
The Client acknowledges and confirms that it has read and understood the terms set out in this Clause 4 and also that the risks involved in agreeing to this Clause 4 had first been explained to the Client which risks include but is not limited to:
4.5.1 that borrowing and on-lending of the Client's securities will necessarily mean that the Client loses ownership rights to the said securities. In its place the Client has a right to claim for equivalent securities from KES; and
4.5.2 that in so far as the Client will receive manufactured dividends the Client may be required to treat the entire amount as income for tax purposes.
|
| |
|
| 4.6 |
The Client confirms and consents that KES's right to lend or on-lend the Client's securities include also the right on identical terms to arrange for a custodian to effect such lending or on-lending for the benefit of KES as if KES had effected such lending or on-lending. |
| |
|
|
|
| 5.1 |
Internet Trading System
The Client agrees that for trading in securities or other products through the Internet, the Client shall access and use the system provided by KES and/or any other relevant party, at the website designated by KES (hereinafter called the "KE Trade"). The Client shall be issued a User Name and Password by KES or such other form of approved user identification ("the ID") to provide access and use by the Client to KE Trade for the purpose of trading in securities. The Client shall be the sole authorised and exclusive person using the ID and shall be fully responsible for the use protection and confidentiality of the ID as well as all transactions executed through the ID. KES shall not be responsible for any loss, damage, cost and expense in respect of or in connection with the Client's failure to maintain the confidentiality of the ID. Any use of KE Trade by the Client shall be in accordance with and subject to these T&C. KES reserves the right to amend modify suspend or terminate the operation of KE Trade at any time for any reason whatsoever and in any manner it deems fit, without giving any prior notice thereof to the Client and without being responsible in any way for any loss or damage whatsoever resulting therefrom. |
|
|
| 5.2 |
Access and Use
The Client agrees that for the purpose of trading in securities through KE Trade, the Client (if so required by KES) shall maintain at all times a deposit (which shall not bear interest) with KES, the quantum of which shall be determined by KES from time to time at KES's discretion. Without prejudice to KES's other rights and powers, KES shall be entitled to apply the said deposit or any part thereof towards payment of any indebtedness owing by the Client to KES. The trading in securities through KE Trade shall be subject to:-
(a) such conditions requirements trading limits or other restrictions as may be imposed by KES from time to time and whether or not prior notification thereof has been given to the Client; and
(b) these T&C (as may be modified or amended from time to time).
KES reserves the right to suspend or terminate the Client's access and use of KE Trade and/or impose such conditions or directions in relation thereto from time to time as it deems fit without giving any reasons or prior notice to the Client and without being responsible in any way for any loss or damage whatsoever resulting therefrom. The Client accepts that access and use of KE Trade will not necessarily be free from faults errors delays or defects in KE Trade's applications systems design and engineering.
The Client shall use KE Trade strictly in accordance with these T&C, and shall not in any way permit enable or cause any person (including himself):-
(a) to gain unauthorised access or use of KE Trade;
(b) to make any modifications adjustments or alterations to any information or services available on KE Trade;
(c) to tamper restrict or interfere with any part or function of KE Trade;
(d) to use the ID or any equipment/software in a manner inconsistent with these T&C or detrimental to the functions of KE Trade;
(e) to access use store modify or redistribute in any manner the information materials or data obtained from KE Trade whether through any other system equipment or software linked to the Client's or otherwise; or
(f) to cause any failure interruption error defect in, misuse of, impair or corrupt any part of KE Trade or any information or services provided therein;
and the Client shall be liable for and fully indemnify KES against all loss damage liability claim cost expense and consequences in respect of or in connection with any breach of the foregoing.
If in the opinion of KES, any failure interruption error defect in, misuse of, impairment or corruption of KE Trade is or has been or is likely to be caused by any equipment or software of the Client, KES may:-
(a) check and inspect the Client's equipment and software, and
(b) require the Client to disconnect, cease the use of, upgrade or modify the same at his own cost. |
|
|
| 5.3 |
Instructions and Verification
The Client is fully responsible for any instructions received through KE Trade by KES under the Client's ID and the instructions shall be deemed to have been given by the Client notwithstanding that it may have been given by a third party with or without the Client's authority. KES shall be under no obligation to effect any such instructions and is entitled to refuse to carry out the same without giving a reason for such refusal. KES shall not be responsible for any order not being executed through KE Trade for whatever reason. The Client accepts that quoted prices may change prior to the trade's execution and not all orders will be executed in chronological sequence with the orders being placed. Any instructions or orders given by the Client shall be deemed to be given or made at the time and in the format received by KES, and may be carried out by KES without further verification from the Client. Any acknowledgment or notification given by KES on KE Trade shall be deemed to have been received by the Client and the Client shall be bound thereby notwithstanding that such acknowledgment or notification may not have actually been received by the Client for any reason whatsoever. For a purchase order, the Client must ensure that he has sufficient funds ready to fulfil all payment obligations when due. For a sale order, the Client must ensure that he has sufficient shares for delivery when due. |
|
|
| 5.4 |
Information Providers
The Client shall on demand pay such fees and other costs as may be prescribed by KES or the Information Provider ("IP") for subscribing to or use of any information data or other services provided on any IP's website through KE Trade. KES shall not be responsible in any way for any act omission default breach or neglect of the IP, nor for the content accuracy timeliness or completeness of any information data or other services provided by the IP through KE Trade.
KES shall not be responsible in the event the Client is unable to access or use any information data or other services of the IP on KE Trade, or if the same is in any manner delayed suspended terminated corrupted or faulty.
The Client shall not reproduce retransmit disseminate sell distribute publish broadcast circulate or commercially exploit the information data or other services provided by KES or the IP in any manner without the consent of KES or the IP as the case may be, or use the same for any unlawful or unauthorised purpose. The Client shall fully indemnify KES against all loss, damage, cost and expense in respect of or in connection with any breach of the foregoing. The Client agrees to comply with any request by KES or the IP to protect their respective copyrights, other intellectual property rights or moral rights, whether statutory or otherwise howsoever arising in the information data or other services provided by KES or the IP.
The information provided on KE Trade shall not constitute professional advice from KES nor should it be relied upon as such in relation to any investment decision trading activities of or orders placed by the Client who shall at all times rely on his own assessment and judgment in respect of any investment decision or proposed transaction. KES makes no warranty or representation, express or implied, as to the information on KE Trade, or as to its content accuracy completeness timeliness or otherwise. The availability of information on KE Trade should not be taken in any way as an inducement to trade or a solicitation for orders. |
| |
|
| 5.5 |
Exclusion of Liability
Without prejudice to the generality of the other clauses in these T&C and in addition to the same, KES shall not be liable to the Client or to any third party for any loss damage liability claim cost or expense whatsoever and howsoever caused or arising from the following (including any act default or omission of any of KES's or IP's servants, agents or independent contractors):-
(a) the reliance or use of the information or trading and other services provided through KE Trade;
(b) any interruption interference delay malfunction breakdown operator error bugs virus or loss of use of any of the services provided through KE Trade;
(c) any failure of any computer hardware, application software or other software utilized in relation to the provision of the services on KE Trade whether of KES, SGX-ST, the Central Depository (Pte) Ltd, or any IP;
(d) any cause over which KES does not have control including but not limited to any government restriction, exchange ruling, suspension of trading, war, strike, industrial action, civil commotion, the failure of any electronic or mechanical equipment, Internet service provider, telephone or other communication systems lines or devices, public utility systems, unauthorised access or theft (including theft of passwords, codes or log-in sequences); or
(e) any direct indirect consequential or incidental loss or damage of whatever nature and howsoever arising from or in connection with any delay failure neglect or omission to carry out or execute any orders or instructions given by the Client through KE Trade. |
| |
|
| 6 |
Electronic Payment for Shares ("EPS") Service |
| |
|
| 6.1 |
KES shall be entitled, but not bound, from time to time to pay the sales proceeds and contra gains (the "sales proceeds") arising from the transactions effected through the Account to the designated Bank Account. KES may, at its discretion, elect to pay the Client the sale proceeds by cheque and such election shall be binding on the Client. |
| |
|
| 6.2 |
No payments shall be made by KES to the designated Bank Account through the EPS service ("the service") on Saturdays or half business days of the KES. |
| |
|
| 6.3 |
KES shall be entitled, but not bound, from time to time to:
(a) deem and treat any payments made by the Client from time to time through the service ("the electronic payment") as being paid on the market day following the date of the electronic payment;
(b) apply all or any amounts received pursuant to the electronic payment in payment of the outstanding purchases or contra losses ("the outstanding contracts") made through the Account in chronological order so that the outstanding contract for which payment is due first will be settled first, notwithstanding any instructions from the Client as to how the electronic payment is to be applied; and
(c) set-off all or any amounts received pursuant to the electronic payment against all or any amounts due by the Client to KES before applying the said electronic payment to settle any outstanding contracts, notwithstanding any instructions from the Client as to which outstanding contract the electronic payment is to be applied. |
| |
|
| 6.4 |
KES and the Participating Bank are not responsible for any errors, inaccuracies or omissions ("the omissions") in the information that may be displayed or transmitted by the Participating Bank to the Client for the purpose of making electronic payments through the service such as the contract or contra statement numbers and the amounts due thereunder. The Client's liability to KES for all and any amounts owing to KES shall be unaffected by the omissions. |
| |
|
| 6.5 |
(a) The Client shall remain liable to KES for all and any amounts owing to KES howsoever arising from transactions effected through the Account until full payment is received by KES.
(b) An electronic payment shall be deemed to be received by KES if KES's bank account is credited with the electronic payment. An instruction to the Participating Bank to debit the designated Bank Account and/or to transfer any amount from the designated Bank Account to KES shall not constitute payment to KES.
(c) Nothing herein shall prejudice or preclude KES from exercising its rights to recover any amounts due and owing to KES howsoever arising from transactions effected through the Account, including the right to force-sell securities purchased under outstanding contracts, until KES has received full payment therefor.
(d) Where KES has exercised its rights to force-sell any securities KES shall be entitled to apply all or any amounts received pursuant to the electronic payment in accordance with Clause 6.3(c) above. |
| |
|
| 6.6 |
Neither KES, the Participating Bank nor their respective agents shall be liable for any loss, consequential loss, damages, costs and charges suffered by the Client or any other party as a result of any failure by the Participating Bank to credit payment of the sales proceeds into the designated Bank Account or as a result of any failure by the Participating Bank to transfer any electronic payment from the designated Bank Account to KES or as a result of any malfunction, partial or total failure of any machine, data processing system, electronic transmission or communications system or arising from causes or circumstances beyond the control of KES, the Participating Bank or their respective agents. |
| |
|
| 6.7 |
KES and/or its agent's records of the instructions, operations or transactions made or performed, processed or effected through the service of KES and/or its agent or by or purported to be by the Client or by the Participating Bank shall be binding and conclusive on the Client for all purposes whatsoever and shall be conclusive evidence of the instructions, operations or transactions. |
| |
|
| 6.8 |
KES shall be entitled to add, vary, rescind or amend any or all of these T&C at any time at its discretion. |
