TABLE OF CONTENTS
Note: This document consists of 2 sections and 1 or more Schedules. Section 1 and 2 applies generally to the Customer’s relationship with BCG including with respect to all accounts maintained with respect to the trading of products and services provided by BCG which may be specifically dealt with in the Schedules. The Schedules hereto apply in respect of the respective services or types of transactions thereunder that the Customer has applied or requested for and BCG has agreed to provide.
1 GENERAL TERMS AND CONDITIONS APPLICABLE TO ALL ACCOUNTS AND SERVICES 5
1.1 Applicability of Customer Agreement 5
1.2 Applicable Terms, Disclosures and Risk Disclosures 5
1.3 Applicable Laws 6
1.4 Basis of Transactions 6
1.5 Agent of the Customer; Prior Consent for BCG Acting as Principal 7
1.6 Rights of BCG 8
1.7 Delegation and Use of Intermediaries 8
1.8 The Customer Not To Encumber Any Account 10
1.9 Consent to Recordings 10
1.10 Orders 11
1.11 Order Aggregation 12
1.12 Transactions Limits and Restrictions 12
1.13 Fees and Payments 12
1.14 Foreign Currency Transactions 13
1.15 Joint Accounts 13
1.16 Omnibus Accounts 14
1.17 Default 14
1.18 Adjustments Upon Extraordinary Events 18
1.19 Additional Risk Disclosures 18
1.20 General Indemnity 19
1.21 General Exclusion 19
1.22 Relationship of BCG with the Customer 20
1.23 General Power of Attorney 21
1.24 Trust/Custody Account 21
1.25 Margin 22
1.26 Customer Default in Respect of Physical Settlement 25
1.27 General Lien, Set-off, Withholding and Other Rights 25
1.28 Data Protection and Privacy 26
1.29 Communications from BCG 29
1.30 Statements, Confirmations and Advice from BCG 30
1.31 Investment Information 30
1.32 Updating of Particulars 31
1.33 Unclaimed Moneys and Properties 31
1.34 Introductions/Sharing of Fees, Commissions and/or other Charges 31
1.35 The Customer’s Representations, Warranties and Undertakings 31
1.36 Certificates Issued by Officers 33
1.37 The Customer to Keep Informed 33
1.38 Instructions and/or Orders Received Electronically 33
1.39 Amendments 34
1.40 Termination 35
1.41 Third Party Rights 35
1.42 Governing Law and Jurisdiction 35
1.43 Severability 36
1.44 Rights and Remedies 36
1.45 Translations 36
1.46 Assignability 36
1.47 No Waiver or Amendment 36
1.48 Time of Essence 37
1.49 Force Majeure 37
1.50 Financial Crimes 37
1.51 Definitions and Interpretation 37
2 INTERNATIONAL TAXATION 42
2.1 International Taxation Agreement (USA) 42
2.2 Indemnity for Inaccurate Information 43
Note: These Schedules may be found at the website of Iat or such other website as may be designated by BCG from time to time). The Customer should refer to the applicable Schedule(s) in relation to the type of product that it intends to trade in (as selected by the Customer in the Application Form). These Schedules should be read in conjunction with all other terms and conditions of the Customer Agreement (including, but not limited to, Clauses 1.37 and 1.39).
A. SPECIFIC TERMS FOR FUTURES AND OPTIONS
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1 GENERAL TERMS AND CONDITIONS APPLICABLE TO ALL ACCOUNTS AND SERVICES
1.1 Applicability of Customer Agreement
The terms and conditions comprised in this Customer Agreement shall apply to and govern:
with I(“BCG”) and in respect of all Transactions and Services.
1.1.1 If, in respect of a given Account, Transaction or Service, any additional or specific terms are stated to apply, such additional or specific terms shall apply (as supplemented by and read together with this Customer Agreement) in respect of that Account, Transaction or Service, and shall form an integral part of this Customer Agreement.
1.1.2 If there is any conflict or inconsistency between the terms of this Customer
Agreement and any additional or specific terms in respect of the relevant Account, Transaction or Service, the latter shall prevail but only to the extent of such conflict or inconsistency.
1.2 Applicable Terms, Disclosures and Risk Disclosures
1.2.1 The terms and conditions comprised in the main body of this Customer Agreement are supplemented by the Schedules hereto. The Schedules shall be read together with and shall form an integral part of this Customer Agreement. The terms and conditions in each of the Schedules shall apply if stated therein to be applicable to the relevant Account, Order, Transaction or Service. Accordingly, all references to “Customer Agreement” herein shall be deemed to be a reference to all the terms and conditions comprised in the main body of this Customer Agreement and each of the Schedules as applicable.
1.2.2 The terms and conditions of this Customer Agreement must be read together with the terms and conditions appearing on the Application, confirmation notes relating to Transactions and statements of account. All of the foregoing may from time to time be amended, supplemented or replaced from time to time by BCG. All of the foregoing shall together govern the relationship between BCG and the Customer.
1.2.3 By completing the Application, agreeing to open an Account, maintaining or operating an Account, issuing any Order, entering into any Transaction or acquiring or using any Service from, with or through BCG:
“expert investor” or an “institutional investor” within the meaning prescribed under the SFA;
Customer acknowledges and consents to being treated as such for the
purposes of all the consent provisions in the SF(COI)R;
1.2.4 The Customer’s acknowledgements, acceptance, agreements and undertakings in Clause 1.2.3 shall be conditions precedent to BCG’s performance of its obligations under this Customer Agreement.
1.3 Applicable Laws
1.3.1 The Customer’s relationship with BCG hereunder, the opening, maintaining and operation of all Accounts, the provision of all Services, the implementation and execution of all Orders, and the entry into and settlement of all Transactions, shall be subject at all times to Applicable Laws.
1.3.2 BCG does not undertake any duty or obligation to ensure that any Transaction is suitable or recommended for the Customer and BCG shall not be regarded as making any recommendation or suitability representation to the Customer by reason only that BCG permitted the Customer to open an Account or to enter into any Transaction.
1.3.3 Notwithstanding anything herein to the contrary:
in order for BCG to secure, procure or ensure for BCG’s benefit all compliance with Applicable Laws and BCG shall have no liability whatsoever to the Customer.
1.4 Basis of Transactions
1.4.1 The Customer shall ensure that all necessary authorisations, licences, approvals and consents of any governmental or other regulatory body or authority applicable to each Transaction are obtained and that the terms thereof and of all Applicable Laws are complied with.
1.4.2 BCG may require the Customer to supply, and the Customer shall supply such evidence of compliance with Clause 1.4.1 as BCG may require. Notwithstanding the foregoing, the absence or lack of any such authorisation, licence, approval or consent shall not be a bar to any action or proceedings for recovery of payment or delivery by BCG against the Customer in respect of any Account, Service or Transaction.
1.4.3 All Transactions on any Account are entered into in reliance on the fact that, to the extent permissible under all Applicable Laws, this Customer Agreement and, all outstanding Transactions (and to the extent recorded in a Confirmation, each such Confirmation) shall form a single agreement between BCG and the Customer and the parties would not otherwise enter into such Transactions.
1.4.4 Unless BCG otherwise agrees with the Customer, each party’s obligation (including any obligation to make any payment or delivery) to the other party under this Customer Agreement is subject to the condition precedent that:
1.5 Agent of the Customer; Prior Consent for BCG Acting as Principal
1.5.1 The Customer understands that BCG acts as the agent of the Customer in respect of all Transactions, except when BCG discloses to the Customer with respect to any particular Transaction that BCG acts as principal for BCG’s own account or as an agent for some other person.
1.5.2 In order to avoid the need, on each occasion where there is the possibility of BCG acting as principal or counterparty for BCG’s own account or acting for the account of any person associated with or connected to BCG in respect of the Customer’s Order in respect of a Transaction, to seek the Customer’s prior consent before the Customer’s Order may be executed and so to avoid at least any delay in execution and filling of such Order, the Customer hereby:
1.5.3 The consent and waiver of the Customer under Clause 1.5.2 shall be deemed to be effective as a formal written consent and waiver for all purposes under all Applicable Laws. Such consent and waiver of the Customer shall stand and remain in effect at all times until and unless revoked by at least five (5) Business Days’ prior written notice by the Customer to BCG.
1.5.4 Unless otherwise required by any Applicable Law, BCG has:
Notwithstanding the aforesaid, BCG will use reasonable endeavours to provide the relevant information or close any position (as applicable) within a reasonable time frame.
1.5.5 For the avoidance of doubt, BCG may, without assigning any reason therefor, refuse to act for the Customer in any particular Transaction.
1.5.6 Where BCG has:
(a) assumed the role of the counterparty to any Transaction which BCG has been given an order to effect on behalf of the Customer or is under a duty to effect on behalf of the Customer; and/or (b) entered into that Transaction with the Customer,
and unless otherwise required by law, BCG need not inform the Customer whether any such Transaction of the Customer has been effected with BCG as the counterparty and BCG shall be absolutely entitled to all gains, profits and benefits derived from any such Transaction of the Customer entered into with BCG.
1.6 Rights of BCG
1.6.1 BCG may, whenever BCG considers it necessary for BCG’s protection and interests, without prior notice to the Customer and at the Customer’s sole expense and risk, take such actions and/or steps in such manner as BCG deems fit in relation to the Account(s) including, but not limited to:
1.6.2 For the avoidance of doubt, BCG may, in the event of a Default, and in addition to its rights and remedies under Clause 1.17, exercise such other rights and remedies as provided under this Clause.
1.6.3 Debit balance(s) in the Account(s) shall be charged with interest thereon at such rate per calendar month as provided by BCG in the provided fee schedule and updated by BCG from time to time with prior notice in writing and the Customer shall promptly settle, upon demand, all liabilities outstanding to BCG, together with all costs of collection including legal costs on a solicitor and own client basis.
1.6.4 In the event of Transactions for which BCG is called to take up or deliver the underlying but for which funds are not made available by the Customer or documents for delivery are not forthcoming when required by BCG, BCG may terminate or closeout such Transactions.
1.7 Delegation and Use of Intermediaries
1.7.1 BCG may use, engage or appoint, directly or indirectly, any person (including another broker, dealer, market-maker, exchange, clearing house, bank, custodian or other Third Party) (“Intermediary”), whether in Singapore or elsewhere, whether or not an Officer of BCG, and whether or not associated with, connected to or related to BCG, to:
Such use, engagement or appointment of any Intermediary shall be upon such terms and conditions as BCG deems fit in its discretion.
1.7.2 If BCG has exercised reasonable care in its selection of the Intermediary, and/or the use of such Intermediary was necessary to carry out Transactions and/or Services for the Customer, the Customer acknowledges, agrees and accepts that:
1.7.3 If the Customer has expressly instructed BCG on the selection of the Intermediary, the Customer acknowledges, agrees and accepts that:
1.7.4 The Customer further acknowledges and agrees that, where BCG uses, engages or appoints an Intermediary:
1.7.5 The foregoing rights and remedies of BCG will apply even though as between BCG and the Customer, the Customer may be in actual or anticipatory default.
1.7.6 In view of the fact that BCG may have accepted principal responsibility and/or liability to another Intermediary, the Customer also acknowledges that:
The Customer confirms and acknowledges that it has read and understood, in particular, the risks disclosed in the section entitled “Counterparty and Intermediary Default Risks” in clause A.6.2 (Risk Disclosures).
1.8 The Customer Not To Encumber Any Account
1.8.1 The Customer shall not without the prior written consent of BCG:
in favour of any person other than BCG, in or over any Account, any cash or property in any Account or the Customer’s rights therein.
1.8.2 Unless otherwise agreed by BCG in writing, BCG shall not recognise any person other than the Customer as having any interest in any Account.
1.9 Consent to Recordings
1.9.1 BCG may record, by any means and at any time, any communications through any medium between BCG and the Customer or any representative or agent of the Customer using any recording apparatus. Such recordings will be done and handled in accordance with Clause 1.28.
1.9.2 Any such recording may be used in evidence against the Customer.
1.9.3 BCG may, in accordance with its internal procedures and policies and business requirements, periodically destroy such recordings without giving any reason and without having to account to any Customer for the same.
1.9.4 No adverse inferences shall be drawn against BCG for not having made any such recording, or for having destroyed such recording in the ordinary course of its
business or pursuant to routine procedures or for not providing, or producing, any such recordings.
1.10.1 The Customer may instruct BCG to operate an Account or to execute a Transaction by placing a relevant Order with BCG through such medium and in such manner as BCG may approve.
1.10.2 Where any electronic broking, trading, clearing or other services or platforms are made available to the Customer by or through BCG (“Electronic Facilities”):
1.10.3 Nothing in this Customer Agreement obliges BCG to enter into any Transaction with the Customer, or to accept any Order. BCG may refuse to enter into any Transaction or act on any Order without giving any reason therefor.
1.10.4 BCG shall be entitled at all times to act upon any Order given or purported to be given by the Customer, or any person authorised on the Customer’s behalf, without further enquiry as to the genuineness, authority or identity of the person giving or purporting to give such Order. Without prejudice to the generality of the foregoing, BCG may verify and satisfy itself as to the identity of the person purporting to give such Order or the source and origin of such Order and BCG may refuse to rely or act upon any such Order unless and until BCG is satisfied as to the matters on which BCG sought verification unless such Order is received or reasonably believed to be received from a person in the list of authorised persons and/or authorised traders as applicable, provided by the Customer.
1.10.5 In the event that BCG decides to act on any Order or is otherwise under an obligation to act on any Order, BCG shall be allowed such amount of time to act and implement any Order as may be reasonable having regard to the systems and operations of BCG and the other circumstances then prevailing and shall not be liable for any Loss arising from any delay on the part of BCG in acting on any such Order.
1.10.6 Where any Order is ambiguous or inconsistent with any other Order, BCG shall contact the Customer for the right interpretation of such Order.
1.10.7 BCG shall only act on Orders in respect of any Account or any part of the cash and other property held in any Account. BCG shall not be required to act in accordance with any Order which purports to dispose of or deal with any cash or other property which is in fact not held in or to the credit of any Account.
1.10.8 In the absence of gross negligence, wilful default or fraud on BCG’s part, BCG shall not be liable to the Customer for any and all Losses incurred by the Customer arising from any loss or delay in the transmission or wrongful interception of any Order through any equipment or system, including any equipment or system owned and/or operated by or for BCG or any Electronic Facilities.
1.10.9 Notwithstanding anything to the contrary in this Customer Agreement, and unless BCG otherwise agrees in writing, no Orders may be communicated to BCG by electronic mail.
1.11 Order Aggregation
1.11.1 The Customer acknowledges and consents to the right of BCG, where applicable, to aggregate the Orders with the orders of BCG’s other customers (whether for execution in other jurisdictions or otherwise). The allotment or distribution of any Commodities, monies or other property pursuant to such aggregation of Orders to or amongst the Customer and its other customers shall, subject to Applicable Laws, be at BCG’s sole and absolute discretion. The Customer accepts that such allotment or distribution may result in inequities on some occasions. BCG may also effect such Transactions as principal to the counterparty in such jurisdictions and may also take such actions as BCG may reasonably require in order to avoid liability to its counterparty.
1.11.2 Where the Customer gives any Order which may be executed in more than one exchange or market and/or by more than one mode or sub-market or sub-
exchange (e.g. pit and electronic trading) without specifying the specific exchange or market or the mode or sub-market or sub-exchange for execution, then BCG shall be deemed to be vested with the discretion to decide where and how the Order should be executed if accepted for execution. So long as BCG exercises its discretion in good faith it shall have no liability whatsoever to the Customer with respect to such execution.
1.12 Transactions Limits and Restrictions
1.12.1 BCG may, at any time and without prior notice to the Customer, impose upon the Customer any position or transaction limits, or any trading or transaction restrictions. Such limits may include minimum sizes for Transactions, specified times or procedures for communicating Orders to BCG or otherwise.
1.12.2 BCG may, at any time and without prior notice to the Customer, vary the position or transaction limits, or any trading or transaction restrictions.
1.12.3 No previous limit or restriction shall set a precedent or bind BCG.
1.12.4 The Customer shall not exceed any position or transaction limits, or breach any trading or transaction restrictions imposed by BCG in accordance with this Clause 1.12.
1.13 Fees and Payments
1.13.1 The Customer shall promptly pay all of BCG’s fees and/or other charges at such rates and in such manner as BCG may impose and stipulate from time to time with respect to the execution, performance and/or settlement of any Transaction or otherwise for the maintenance of any Account or the provision of any Service to the Customer or in connection with any Account.
1.13.2 The Customer shall make payment to BCG’s order promptly of any outstanding sum in respect of any Transaction on the Settlement Date of the relevant Transaction or upon demand by BCG.
1.13.3 BCG may charge interest on any sum or payment due to BCG from the Customer at such rate and calculated and/or compounded in such manner as BCG may
impose and determine from time to time and the Customer shall pay such interest to BCG.
1.13.4 All payments to BCG shall be in the Currency in which they are due, in free and clear funds and free of deductions or withholdings. If the Customer is required to effect such deductions or withholdings, then the amount due to BCG shall be increased by such amount as shall result in BCG receiving an amount equal to the amount BCG should have received in the absence of such deduction or withholding.
1.13.5 Any taxes, duties, disbursements, costs and/or other expenses incurred by BCG in connection with the services described in this Agreement, the Account or the Customer shall be reimbursed in full by the Customer.
1.13.6 If for any reason BCG cannot effect payment or repayment to the Customer in a particular Currency in which payment or repayment is due, BCG may effect payment or repayment in the equivalent in any other Currency selected by BCG based on the rate of exchange quoted by BCG in respect thereof at the relevant time.
1.13.7 All interest, fees, commissions and other charges of BCG are exclusive of any goods and services tax or any other applicable sales tax which shall be borne by and separately charged to the Customer.
1.13.8 Any and all payments to be made by BCG to the Customer shall be made in such manner as BCG may from time to time determine. All such payments shall be subject to all applicable taxes, deductions and withholdings, and less any and all amounts payable by the Customer to BCG.
1.14 Foreign Currency Transactions
1.14.1 If the Customer directs BCG to enter into a Transaction and such Transaction is effected in a Currency other than Singapore Dollars (the “Relevant Currency“):
1.14.2 BCG may, at any time, convert any amounts in any Account or standing to the credit of the Customer in any other Currency for the purposes of carrying out the Orders of the Customer or exercising any of BCG’s rights under this Customer Agreement or under any Account. Exchange rate losses and the costs of conversion shall be borne by the Customer.
1.15 Joint Accounts
1.15.1 If an Account is opened or maintained in the name of more than one person or a partnership:
severally, and the liability of each such person to BCG shall be joint and several;
due or owed to BCG by any of the persons in whose name the Account is opened or maintained;
1.15.2 Unless otherwise agreed by BCG:
1.15.3 The doctrine of survivorship shall apply to any Account opened in the joint names of more than one person (including where such persons are the permitted assigns of a corporate entity) or in the name of a partnership.
1.16 Omnibus Accounts
1.16.1 All omnibus accounts (which BCG may agree to open for the Customer) shall be subject to all Applicable Laws. The Customer holding an omnibus account with BCG shall comply with all Applicable Laws with respect to its opening, maintaining and operating of such omnibus account and shall at all times provide to BCG all information as BCG may require under any Applicable Laws.
1.17.1 A “Default” shall be deemed to occur if:
1.17.2 The Customer shall immediately notify BCG if any Default in respect of the Customer (or its affiliates) occurs, or if a Default or Potential Default in respect of the Customer (or its affiliates) is likely to occur.
1.17.3 Subject to Clause 1.17.4 below, on or at any time following the occurrence of a Default in respect of the Customer, BCG may, by notice to the Customer, other than a Default occurring under Clause 1.17.1(b), (c), or (d) (each a “Bankruptcy Default”), specify a date (the “Liquidation Date”) on which BCG will commence the termination, close-out or liquidation of such Transactions as BCG may determine (each an “Affected Transaction”) in accordance with the provisions of Clause 1.17.5 below.
1.17.4 Unless BCG otherwise specifies, the date of occurrence of any Bankruptcy Default in respect of the Customer shall automatically constitute a Liquidation Date without the need for any notice by BCG and the provisions of Clause 1.17.5 below shall apply in respect of all Transactions (each of which shall be regarded as an Affected Transaction). The date of occurrence of any Bankruptcy Default (if applicable) in respect of BCG shall automatically constitute a Liquidation Date without the need for any notice by the Customer and the provisions of Clause 1.17.5 below shall apply in respect of all Transactions (each of which shall be regarded as an Affected Transaction).
1.17.5 Upon the occurrence of a Liquidation Date (and unless otherwise required by any Applicable Laws):
1.17.6 For the purposes of Clause 1.17.5(b), in respect of all Affected Transactions effected on an exchange or market or otherwise centrally cleared through or novated for clearing to a clearing house or other central counterparty, the termination of such Transactions shall be effected by BCG acting in good faith and in a commercially reasonable manner, to the extent that it is and remains able to where the relevant Default occurs in respect of BCG, by way of termination, closeout or liquidation of the relevant Affected Transactions or positions on, with or through such exchange, market, clearing house or central counterparty in accordance with the applicable business rules and the instructions of such exchange, market, clearing house or central counterparty (and such Affected Transactions shall be regarded as being terminated, closed-out or liquidated, not on the Liquidation Date, but only when they are in fact so terminated, closed-out or liquidated as aforesaid, and until this occurs, Clause 1.17.5(b) above shall not
apply to such Affected Transactions); and failing the foregoing, the Affected Transactions which may not be so terminated, closed-out or liquidated as aforesaid, shall be dealt with in such manner as BCG and the Customer may agree or otherwise in accordance with the directions and instructions of the exchange, market, clearing house or central counterparty.
1.17.7 BCG shall notify the Customer of the Liquidation Amount determined pursuant to Clause 1.17.5 above, and by whom such Liquidation Amount is payable, as soon as reasonably practicable. A Liquidation Amount shall be paid in Singapore dollars either: (i) immediately upon such notification, in the event that the Liquidation Amount is payable by the party in respect of whom the relevant Default has occurred; or (ii) by no later than seven (7) calendar days after the date of such notification, in the event that the Liquidation Amount is payable by the nonDefaulting party (i.e. the party other than the party in respect of whom the relevant Default has occurred). A Liquidation Amount payable to BCG that is not paid when due shall bear interest, at the rate reasonably determined by BCG to be its cost of funding such overdue amount, which shall accrue on a daily basis and will be due and shall be payable by the Customer to BCG.
1.17.8 Without prejudice to any other right of BCG hereunder or otherwise at law, in the event that BCG determines in its judgement that a Default on the part of the Customer has occurred or a Liquidation Amount payable by the Customer is unpaid when due, BCG may immediately or at any time without prior notice to the Customer and at the Customer’s sole expense and risk, take such action and/or steps in such manner as BCG deems fit in relation to the Account(s), Transactions and/or Services, including to:
on such terms and conditions as deemed appropriate by BCG. In exercising any one or more of its foregoing rights, BCG shall not be obliged to furnish any reason to the Customer.
1.18 Adjustments Upon Extraordinary Events
1.18.1 If there occurs in relation to any Transaction or otherwise in relation to an Account or Accounts an Extraordinary Event, BCG shall immediately notify the Customer of such Extraordinary Event and of all adjustments or actions which BCG deems necessary to take in relation to such Transaction or any or all Transactions or otherwise to an Account or Accounts in view of the Extraordinary Event. In the event that BCG and the Customer are unable to agree on how to address this Extraordinary Event, the Customer may within twenty-four (24) hours of being notified of such Extraordinary Event (but shall not be obliged to) instruct BCG to take whatever action that the Customer deems necessary to remedy this Extraordinary Event. The Customer hereby agrees to bear any costs or losses that may be incurred by BCG in respect of such remedial action (as instructed by the Customer). In the event that the Customer does not instruct BCG within twentyfour (24) hours of being notified of such Extraordinary Event as provided herein, the Customer hereby agrees that BCG may take whatever action it deems necessary, expedient or advisable, in its reasonable opinion, and the Customer agrees that it will bear all costs of, related to or in connection with such action.
1.18.2 Such adjustments or actions may include altering or varying the quantities of Securities, Commodities or other property, the specifications of Securities, Commodities or other property 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.
1.19 Additional Risk Disclosures
1.19.1 The risks disclosed in clause A.6.2 will generally also apply to OTC trading in any form (and whether involving physical settlement or cash settlement) as they would to any financial transactions.
1.19.2 As an additional cautionary note in order to ensure that the Customer invests or trades in Commodities or other Transactions hereunder only on a fully informed basis, please be reminded that:
financial transactions, involve a variety of significant risks;
risk, funding risk and operational risk.
1.20 General Indemnity
1.20.1 The Customer shall indemnify, keep indemnified and hold BCG harmless from and against any and all Loss (including reasonable legal costs) suffered or incurred, or which may be suffered or incurred, by BCG as a result of or in connection with:
1.20.2 The Customer shall indemnify, keep indemnified and hold BCG harmless from and against any and all Loss (including reasonable legal costs) and/or loss arising under, arising out of or otherwise in connection with the loss of any Additional Margin suffered or incurred, or which may be suffered or incurred, by BCG as a result of or in connection with any act or thing done or caused to be done by BCG in connection with or referable to this Customer Agreement or any Account, or any Transaction entered into for or with, or any Services provided to, the Customer, regardless of whether such Loss and/or loss arising under, arising out of or otherwise in connection with loss of any Additional Margin suffered by BCG is incurred in connection with any change in any Applicable Laws.
1.21 General Exclusion
1.21.1 So long as BCG acts in good faith, it shall not be liable to the Customer in any respect, for any Loss suffered by the Customer, including any Loss resulting from action, inaction or insolvency by or of any Intermediary, exchange, market or
clearing house (including wrongful or unlawful action or inaction), or howsoever otherwise suffered and/or incurred by the Customer. BCG shall only be liable to the Customer if BCG has been grossly negligent, fraudulent or in wilful default.
1.21.2 Without prejudice to the generality of Clause 1.21.1, BCG shall not in any event be liable to the Customer for any indirect or consequential Loss (including loss of profit and loss of opportunity) or special or punitive damages.
1.22 Relationship of BCG with the Customer
1.22.1 Notwithstanding that the Customer may as between itself and a Third Party be effecting Transactions for and on behalf of such Third Party, as between the Customer and BCG, the Customer shall be deemed to be and is transacting solely as principal. The Customer acknowledges, undertakes and agrees to be always primarily liable to BCG for all Transactions.
1.22.2 UNLESS OTHERWISE AGREED BY BCG IN WRITING, BCG DOES NOT AND IS NOT WILLING TO ASSUME ANY ADVISORY, FIDUCIARY OR SIMILAR OR OTHER DUTIES OR ACT AS INVESTMENT ADVISER TO THE CUSTOMER. THE CUSTOMER REPRESENTS AND WARRANTS TO BCG, AND BCG RELIES ON SUCH REPRESENTATION AND WARRANTY, THAT:
1.22.3 Without prejudice to Clause 1.22.2, unless BCG has otherwise agreed in writing with the Customer, the Customer acknowledges that:
1.23 General Power of Attorney
1.23.1 BCG is hereby authorised as the Customer’s attorney (with full rights of substitution) with full authority to be the Customer’s true and lawful attorney and in the Customer’s name to do on the Customer’s behalf and as the Customer’s acts and deeds, all things which the Customer could have done for the purposes of:-
1.23.2 Registration of this power of attorney in any jurisdiction may be effected on the Customer’s behalf by BCG at the Customer’s expense.
1.23.3 The Customer undertakes to ratify and confirm, and hereby ratifies and confirms, all and whatsoever BCG may do pursuant to this power of attorney.
1.24 Trust/Custody Account
1.24.1 The Customer acknowledges that all monies and assets of the Customer in the possession or control of BCG will be held in accordance with the requirements of the SFA, which may include being held with an Intermediary as provided for under Clause 1.7, unless BCG is instructed by the Customer otherwise.
1.24.2 The Customer acknowledges and accepts that non-cash assets of the Customer in the possession or control of BCG may be held commingled with the non-cash assets of other customers of BCG in the same trust or custody account in accordance with the requirements of the SFA.
1.24.3 Without prejudice to the provisions of the preceding Clause 1.24.2 and in addition to BCG’s right to hold monies received on the Customer’s account on trust in the forms of investment stipulated in Regulation 20 of the SFR:
discretion and accepts the risk of any and all losses or shortfalls that may result from the investment(s) effected, on a pro-rated basis where relevant, so long as any investment is made in good faith by BCG.
1.24.4 The Customer hereby authorises BCG to deposit the Customer’s monies and/or any other property denominated in a foreign currency with a custodian outside Singapore which is licensed, registered or authorised to act as a custodian or to conduct banking business in the country or territory where the account is maintained by BCG to the extent permitted under the SFA.
1.24.5 BCG may, upon the specific Order of the Customer, and for a fee as may be determined by BCG from time to time:
1.24.6 The Customer shall be responsible for all taxes, postage, shipping, insurance expenses and storage fees relating to BCG’s provision of this service. The Customer acknowledges that any insurance coverage taken out by BCG in relation to the Commodities stored by BCG in accordance with this Clause may not cover all risks that such Commodities may be subject to.
1.25.1 BCG may, at any time, from time to time and in its absolute discretion require the Customer to provide to BCG as collateral, such cash or other property in such form, and of such amount, currency denomination, specifications or value as BCG may determine in its absolute discretion, for:
(referred to herein as, “Margin”), whether or not such requirement of BCG is identical to or reflects or is greater than any applicable Margin requirements of any governmental, self-regulatory organisation in any jurisdiction (including any exchange), or any Intermediary which is engaged by BCG in accordance with Clause 1.7 herein, which is required to be maintained by BCG and/or the Customer.
1.25.2 In addition to the Margin amount as referred to in Clause 1.25.1, BCG may, at any time, from time to time and in its absolute discretion provide to any Intermediary (which is engaged by BCG in accordance with Clause 1.7 herein) as collateral, such additional cash or other property in such form, and of such amount, currency denomination, specifications or value as BCG may determine in its absolute discretion, for:
(referred to herein as, “Additional Margin”).
1.25.3 BCG may, at any time, from time to time and in its absolute discretion require the Customer to provide to BCG as collateral, such cash or other property in such form, and of such amount, currency denomination, specifications or value as BCG may determine in its absolute discretion for the Additional Margin (as applicable).
1.25.4 Subject to Clause 1.25.8, the Customer undertakes to provide all Margin: (a) by the next business day after receiving notification from BCG; or (b) on the date and time stipulated by BCG when required by Applicable Law or an Extraordinary Event. In the event that the Customer is unable to furnish the Margin in the manner as set out above, BCG may, without prior notice to the Customer, apply and use as Margin for purposes of any Transaction or Account, any and all cash or other property for the time being deposited with, received by, held by or under the control of BCG as Collateral for the Customer or for the Account of the Customer.
1.25.5 Nothing in Clause 1.25.4 shall oblige BCG to apply and use any cash or other property for the time being deposited with, received by, held by or under the control
of BCG for the Customer or the Account as Margin for the purposes of any Transaction or Account.
1.25.6 Any and all cash and other property received by BCG as Margin for purposes of any Transaction or Account of the Customer may also be applied and used by BCG as collateral to secure any and all of the Customer’s obligations to BCG under any other Transaction or Account.
1.25.7 The Customer shall promptly execute such documents, instruments, assurances, acts and do all things as necessary or as required by BCG for creating, perfecting and/or protecting the rights of BCG to any Margin, including:
1.25.8 BCG may:
The Customer hereby waives any right to object on the grounds that such requirement is unreasonable. No previous Margin Requirements shall set a precedent or bind BCG. The Customer accepts that this is a risk inherent in the Customer’s entering into and dealing in Transactions.
1.25.9 Without prejudice to the generality of Clause 1.6 above, BCG may, if BCG determines in its sole judgment that a Default has occurred, at any time, apply (whether by way of sale, disposal, purchase or otherwise) any and all Margin held by BCG:
1.25.10 The Customer is expected to monitor its Transactions and comply with all Margin Requirements.
1.25.11 The Customer acknowledges that BCG may make a call for Margins (referred to as “Margin Call” for the purposes of this Clause 1.25) on the Customer in respect of the Margin Account orally or in writing or in such other manner as BCG may in its sole discretion deem appropriate. Without prejudice to the generality of the foregoing, the Customer agrees that BCG may contact the Customer at any of the telephone numbers in its Application or at any other telephone numbers as the Customer may notify BCG from time to time, for the purpose of any Margin Call and the Customer shall make itself available at such telephone numbers. If BCG fails to reach the Customer at such telephone numbers, the Customer shall be deemed to have defaulted on the Margin Call.
1.25.12 Even if BCG has notified the Customer and provided a specific date or time by which the Customer is required to meet a Margin Call, BCG can still take necessary steps to protect its financial interests before such specified date, including exercising any of BCG’s rights under Clauses 1.25 and 1.6, before the time given for meeting the Margin Call has elapsed.
1.25.13 BCG may:
as it deems fit whenever it considers such action to be necessary for its protection, including in the event of, but not limited to the occurrence of any Default or Extraordinary Event, all without demand for Margin or additional Margin, or notice to the Customer.
1.25.14 Notwithstanding Clause 1.25.15, the Customer does not have a right to an extension of time with regards to Margin Calls.
1.25.15 If BCG grants any such extension of time for Margin Calls in its discretion, then unless BCG expressly states in writing that such extension of time is intended to override or prevail over BCG’s rights under this Clause 1.25, such extension of time shall be deemed to have been granted subject always to BCG’s rights under this Clause 1.25 and Clause 1.6.
1.25.16 BCG may at any time and from time to time:
The value of all Margin provided to and held by, or to be provided to and held by, BCG shall be as determined by BCG in its discretion from time to time.
1.25.17 All Margin shall be held by BCG, notwithstanding any provision or instructions to the contrary, as continuing security and shall be subject to a general lien and right of set-off in favour of BCG for any and all of the Customer’s liabilities to BCG (whether contingent or actual) under this Agreement or otherwise, and BCG may realise any of the Margin of the Customer as provided for in this Agreement.
1.25.18 No interest shall be paid on any type of Margin deposited by or for the Customer with BCG and the Customer acknowledges and consents that interest earned on
the Customer’s Margin may be retained by BCG for its own account and benefit.
1.25.19 The Customer hereby acknowledges and agrees that:
1.25.20 The Customer hereby further acknowledges and accepts that all Margin provided under this Customer Agreement will be held with and dealt in accordance with Clause 1.24.
1.26 Customer Default in Respect of Physical Settlement
1.26.1 For any open position of any Transaction which involves physical settlement, the Customer shall:
all in accordance with BCG’s general operating procedures, not later than such date and time as BCG may specify.
1.26.2 If the Customer fails to comply with Clause 1.26.1, BCG may take any one or more of the following actions:
1.27 General Lien, Set-off, Withholding and Other Rights
1.27.1 All cash and other property of the Customer (including Margin) which may at any time be in BCG’s possession or control or carried on BCG’s books for the Customer
either solely, jointly with others, or as a guarantor for the account of any person for any purpose, including safekeeping, are to be held by BCG as continuing security and subject to a general lien and right of set off for liabilities of the Customer to BCG or BCG’s Associate whether or not BCG has made advances in connection with such cash or other property, and irrespective of the number of Accounts the Customer may have with BCG.
1.27.2 BCG is hereby authorised to sell and/or purchase, or otherwise apply, any and all such cash and other property without notice to the Customer to satisfy such general lien.
1.27.3 BCG may, in its discretion, at any time and from time to time without notice to the Customer apply and/or transfer any or all such cash and other property of the Customer’s interchangeably between any of the Accounts.
1.27.4 The Customer also hereby grants to BCG the right to carry in BCG’s general loans and to pledge, repledge, hypothecate, rehypothecate, invest or loan, either separately or with the property of other customers, to either BCG itself as brokers or to others, any property held by BCG on Margin for the Accounts of the Customer or as collateral therefor, without notice to the Customer and without any obligation to pay to the Customer, or to account to the Customer for any interest, income, or benefit that may be derived therefrom. BCG shall at no time be required to deliver to the Customer the identical property delivered to or purchased by BCG for any Account of the Customer but only property of the same kind and amount subject to adjustments for quantity and quality variations at the market price prevailing at the time of such delivery (unless such property is cash).
1.27.5 BCG’s rights set forth in Clause 1.27.4 above shall be qualified by requirements for the segregation of customer funds and assets under the Applicable Laws.
1.27.6 Subject to Applicable Laws, BCG may, by mutual agreement in writing with the Customer, combine and/or consolidate all or any of the Customer’s accounts, and/or with prior notice in writing from BCG to the Customer, transfer any sum or sums amongst the different accounts that the Customer has with BCG and BCG’s
Associates in settlement of any or all of the Customer’s debts with BCG and BCG’s Associates.
1.27.7 For so long as the Customer owes moneys or obligations (of whatsoever nature and howsoever arising whether present or future, actual or contingent, as primary obligor or as surety) to BCG, the Customer may not withdraw any cash or other property held with BCG (whether as Margin or otherwise) without BCG’s consent. BCG may at any time withhold any cash or other property of the Customer pending full settlement of all such moneys or obligations of the Customer.
1.27.8 BCG may at any time and from time to time without notice set-off any amounts due to the Customer or held in any Account or any other account to which the Customer is beneficially entitled (whether with BCG or with any Associate of BCG) to reduce or extinguish any liability whether present or future, actual or contingent, as primary obligor or as surety, owed by the Customer to BCG or to any other member of the INTL FCBCG Group.
1.28 Data Protection and Privacy
1.28.1 BCG will obtain and hold information about the Customer (including, without limitation, personal information and information relating to the Customer’s Account and Customer’s Account history) and will collect, use and disclose the personal data the Customer provides to BCG, in accordance with applicable data protection legislation, including the Personal Data Protection Act 2012 (all such personal information obtained and all such personal data provided by the Customer to BCG shall collectively be referred to as the “Personal Data”).
1.28.2 The Customer agrees and consents to BCG collecting, using, disclosing and processing the Personal Data for the purposes as set out in this Agreement including performing BCG’s obligations under this Agreement, as well as administering the relationship with the Customer, managing the Customer’s Account, carrying out the Customer’s instructions or responding to any enquiries by the Customer, dealing in any matters relating to the services and/or products which the Customer is entitled to under this Agreement, recovering amounts payable, considering any of the Customer’s applications, carrying out credit review and risk assessment, complying with regulatory obligations, and undertaking market research, surveys, product development and analysis (the “Purposes”).
1.28.3 The Customer agrees that BCG may, for one or more of the Purposes, whether before or after termination of, or during the existence of, the Customer’s relationship with BCG, transfer and disclose any Personal Data to the following recipients globally (who may also collect, use, process, transfer and disclose such Personal Data for the Purposes):
wherever located in the world, including in jurisdictions which do not have data protection laws that provide the same level of protection as the jurisdiction in which the products and/or services are supplied, without prejudice to BCG’s obligation to protect such Personal Data in accordance with applicable local data protection legislation.
1.28.4 The Customer consents to BCG, or agents acting on BCG’s behalf, carrying out such credit and identity checks, including money laundering checks, compliance regulatory reporting and fraud prevention checks, as BCG may reasonably consider necessary or desirable, including requesting a reference from the Customer’s bank or any credit reference agency. The Customer understands and agrees that any Third Party referred to in this clause may share any information concerning the Customer with BCG and other organisations involved in credit reference, the prevention of fraud and/or crime and/or money laundering or for similar purposes or to recover debts involved.
1.28.5 The Customer is made aware that should the Customer wish to access information that BCG holds about the Customer, or to have inaccurate information corrected, the Customer is required to send an email to BCG’s email address set forth on BCG’s Website. Please note BCG may require the Customer to pay a fee for accessing the information held. Please note that certain information may be exempt from being disclosed and that in certain circumstances BCG may not be able to disclose certain information.
1.28.6 The Customer shall ensure that all Personal Data submitted to BCG and/or BCG’s Associates is complete, accurate and true. The Customer shall update BCG in a timely manner of all changes to the Personal Data provided to BCG.
1.28.7 The Customer confirms, warrants, represents, undertakes and is responsible for ensuring, that:
1.28.8 The Customer is made aware that should if wish for BCG to not use or disclose the Customer’s Personal Data for any of the Purposes, the Customer may withdraw its consent at any time by written notice to BCG. Such withdrawal of consent may however result in BCG’s inability to provide the Customer with its services and may result in the termination of the Customer’s Account with BCG.
1.29 Communications from BCG
1.29.1 Communications may be transmitted or sent by BCG to the Customer by telephone, electronic mail, facsimile or to any postal address of the Customer at such numbers or address(es) last known to BCG.
BCG may address, transmit and/or send all communications to the first of such persons identified in BCG’s written records and such communication shall be deemed to be sent to all such persons.
1.29.3 Any such communications shall be deemed received by the Customer:
whether or not actually received by the Customer.
1.29.4 Communications served personally on or delivered personally to the Customer by BCG shall be deemed received upon service or delivery.
1.29.5 The risk of loss or damage to, and the costs of delivery of, any articles or items sent to the Customer shall be borne by the Customer.
1.30 Statements, Confirmations and Advice from BCG
1.30.1 The Customer shall verify all statements, Confirmations and advice sent by BCG to the Customer.
1.30.2 Each such statement, Confirmation and advice shall be deemed conclusive and binding against the Customer, who shall not be entitled to object thereto and who shall be deemed to have ratified all matters therein stated, unless the Customer makes any objection known to BCG within five (5) Business Days after despatch of such statement, Confirmation or advice to the Customer. Notwithstanding any other provision in this Customer Agreement or any other agreement or arrangement between the Customer and BCG to the contrary, all such objections shall be deemed received by BCG only if actually delivered or sent by registered mail, with return receipt requested.
1.30.3 BCG may at any time rectify any error on any entry, statement, Confirmation or advice which has been proved to its satisfaction and may demand immediate repayment from the Customer of any monies erroneously paid over to the Customer as a result of such error.
1.30.4 The Customer shall immediately notify BCG if a statement, Confirmation or advice is not received by the Customer in the ordinary course of business.
1.31 Investment Information
1.31.1 The Customer requests BCG to contact the Customer concerning trading and investment opportunities that may come to BCG’s attention from time to time and that BCG believes may be of interest to the Customer.
1.31.2 The Customer fully understands:
1.31.3 Notwithstanding anything herein or other agreement to the contrary, BCG shall not be obliged to and does not warrant to contact or inform the Customer when the price in respect of any of its Transactions reaches a certain level. The Customer shall be primarily responsible for the monitoring of the market movements of its
1.32 Updating of Particulars
1.32.1 The Customer shall keep BCG updated as to any change in the particulars of the Customer, or any information relating to any Account or to this Customer Agreement, as supplied to BCG. If the Customer fails to do so, BCG will not be responsible for any resulting Loss to the Customer.
1.33 Unclaimed Moneys and Properties
the Customer hereby irrevocably agrees that all such funds and other property including any and all accretions and accruals thereon (which in the case of monies shall include all interests earned thereon and all investments and their respective accretions and accruals which may have been made with such monies) shall be deemed to have been abandoned by the Customer in favour of BCG and may be appropriated by BCG to and for itself. The Customer thereafter shall have no right to claim such funds or other property or their accretions and accruals.
1.34 Introductions/Sharing of Fees, Commissions and/or other Charges
1.34.1 The Customer acknowledges that the Customer may have been introduced to BCG by a Third Party. Subject to any contract entered into by BCG and/or the Third Party and/or the Customer, BCG has and will accept no responsibility for any conduct, action, representation or statement of such Third Party.
1.34.2 The Customer further acknowledges and agrees that, in consideration of such introduction by such Third Party, BCG may share BCG’s fees, commissions and/or other charges with such Third Party or any other Third Party.
1.34.3 The Customer also acknowledges that BCG may from time (either of its own initiative or at the request of the Customer or a relevant Third Party financial service/product supplier):
in return for the payment to BCG by such Third Party of agreed fees or commissions. The Customer agrees and consents to the foregoing and BCG’s retention and appropriation wholly for its own account and benefit of such fees and/or commissions.
1.35 The Customer’s Representations, Warranties and Undertakings
1.35.1 The Customer represents, warrants and undertakes that:
1.35.2 The above representations, warranties and undertakings shall be deemed repeated whenever the Customer:
1.36 Certificates Issued by Officers
1.36.1 Except in the event of fraud or manifest error, the Customer agrees that a certificate issued by an Officer as to:
1.36.2 The records of BCG shall be prima facie evidence of the facts stated therein.
1.37 The Customer to Keep Informed
1.37.1 The Customer shall be responsible for updating itself as to:
1.37.2 Updated or revised versions of the standard terms and conditions of all trading facilities and services provided by BCG to the Customer will be made available at BCG’s registered office during its ordinary business hours and/or posted on the BCG Website (as applicable) for the Customer’s reference.
1.38 Instructions and/or Orders Received Electronically
1.38.1 The Customer hereby irrevocably authorises BCG and its Officers, agents and representatives to act in accordance with the Customer’s instructions and/or Orders given by telephone, facsimile or any other form of electronic communication including internet messaging services by the Customer and/or persons authorised in writing by the Customer from time to time, including instructions to transfer/remit funds from the Account(s) held with BCG to other account(s) or party(ies) where the Customer may not be the beneficiary or sole beneficiary.
1.38.2 The Customer acknowledges that the aforesaid method(s) of communication is
provided solely on the basis of the Customer’s request and at the risk of the Customer and is not recommended in any way by BCG.
1.38.3 The Customer acknowledges and confirms that the Customer is aware of the nature of instructions and/or Orders communicated by telephone, facsimile or any other form of electronic communication including internet messaging services whereby such instructions and/or Orders may not be received properly or may not
be read by the intended recipient and may be read by or be known to unauthorised persons.
1.38.4 The Customer agrees to assume and bear all the risks involved in respect of such errors and misunderstanding and BCG shall not be responsible in any way for the same or breach of confidentiality thereto and shall also not be liable for any claims, loss, damage cost or expense and liability arising therefrom.
1.38.5 The Customer acknowledges that the Customer is fully aware of and understands the risks associated with communicating instructions and/or Orders by telephone, facsimile or any other form of electronic communication including internet messaging services including the risk of misuse and unauthorised use of Username and/or Password by a Third Party and the risk of a person hacking into the Internet messaging service being used.
1.38.6 The Customer accepts full responsibility for the monitoring of its instructions and/or Orders and safeguarding the secrecy of its Username and Password and agrees that the Customer shall be fully liable and responsible for any and all unauthorised use and misuse of his Password and/or Username, and also for any and all acts done by any person through using the Customer’s Username in any manner whatsoever.
1.38.7 The Customer agrees that BCG and its Officers, agents and representatives may act as aforesaid without inquiry as to:
and may treat the same as fully authorised by and binding on the Customer, regardless of the circumstances prevailing at the time of the instruction or amount of the transaction and notwithstanding any error, misunderstanding, lack of clarity, fraud, forgery or lack of authority in relation thereto, and without requiring further confirmation in any form, provided that BCG or the Officer, agent or representative concerned believed the instruction to be genuine at the time it was given.
1.38.8 Notwithstanding anything to the contrary in this Customer Agreement:
1.38.9 BCG and the Customer may enter into an electronic trading facility agreement (“ETFA”) and in the event that the terms and conditions of the ETFA conflict with this Customer Agreement, the terms and conditions of the ETFA shall prevail.
1.39.1 The Customer acknowledges, agrees and accepts that unless any amendment, variation or supplement is required by Applicable Law:
offices and/or posted on the BCG Website; and
1.39.2 In any event, the Customer will be deemed to agree in totality to any and all amendments, variations or supplements made by BCG if, on or after the effective date (as above), any Account of the Customer is continued to be maintained or operated, or any Service is utilised by or for the Customer, any Order is given, or any Transaction is entered into.
1.39.3 For the avoidance of doubt, the requirement for prior notice to the Customer pursuant to Clause 1.39.1 above, shall not apply to any amendments, variations or supplements required by Applicable Law.
1.39.4 In addition, the Customer acknowledges, agrees and accepts that the requirement for prior notice to the Customer pursuant to Clause 1.39.1 above, shall not apply to any amendments, variations or supplements to any of the Schedules which may be amended from time to time pursuant to any changes as may be required by the relevant exchange or Third Party intermediary, as the case may be, and the Customer agrees to check the BCG Website for such changes from time to time.
1.40.1 BCG or the Customer may terminate any Account or any Service provided by BCG under this Customer Agreement by giving five (5) Business Days’ notice in writing to the other party.
1.40.2 Prior to the date of the termination of any Account or Service, the Customer shall instruct BCG as to the proper disposal or transfer of monies and other property of the Customer in relation to such Account or Service. If the Customer fails to do so, BCG may exercise any of its rights under Clause 1.17 as if a Default had occurred.
1.40.3 Termination of this Agreement does not release the Customer from any obligations which have accrued to that time (including without limitation the Customer’s obligation to pay Commission or any other fee or amount to BCG incurred before, or in connection with, termination of this Agreement) or from any liabilities for any breach of any of the terms of this Agreement arising before the date of termination.
1.41 Third Party Rights
1.41.1 Unless expressly provided to the contrary in this Customer Agreement, a person who is not a party to this Customer Agreement has no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any of the terms in this Customer Agreement.
1.41.2 Notwithstanding any term herein, the consent of any Third Party is not required for any subsequent agreement between the parties hereto to amend or vary (including any release or compromise of any liability) or terminate this Customer Agreement. Where third parties are conferred rights under this Customer Agreement, those rights are not assignable or transferable.
1.42 Governing Law and Jurisdiction
1.42.1 This Customer Agreement (except where specifically otherwise stated herein) shall be governed by and construed in accordance with the laws of Singapore. The uniform law on the international sale of goods shall not apply to the Transactions under this Customer Agreement.
1.42.2 Except where specifically otherwise stated herein, the parties hereby agree that the courts of Singapore shall have exclusive jurisdiction over any and all disputes
arising from or in respect of this Customer Agreement.
1.42.3 Notwithstanding the foregoing, but except where specifically otherwise stated herein, nothing in this Customer Agreement restricts the right of BCG to submit disputes to any other court of competent jurisdiction and the Customer agrees to submit to the jurisdiction of such other court, whether concurrently or not.
1.43.1 If any provision of this Customer Agreement is or becomes illegal, invalid or unenforceable, the same shall not affect the legality, validity or enforceability of any other provision of this Customer Agreement nor the legality, validity or enforceability of such provisions under the law of any other jurisdiction.
1.44 Rights and Remedies
1.44.1 All of BCG’s rights and remedies under this Customer Agreement are cumulative of, in addition to, and not exclusive or in derogation of, any other rights or remedies provided or available to BCG hereunder, by law, in equity or by any other agreement.
1.45.1 These terms and conditions may, at BCG’s discretion, be translated into a language other than the English language.
1.45.2 The Customer agrees that such translation shall only be for its convenience and the English text shall prevail in the event of any ambiguity, discrepancy or omission as between the English text and any translated text.
1.46.1 This Customer Agreement shall be binding on BCG and the Customer and their respective successors in title and assigns, and shall continue to be binding on the Customer notwithstanding any change in the name or constitution of BCG, or the consolidation or amalgamation of BCG into or with any other entity.
1.46.2 The Customer may not assign its rights hereunder or under any Account or Transaction without the prior written consent of BCG.
1.46.3 BCG may assign any or all of its rights hereunder or under any Account to any affiliate or successor of BCG, 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 Service or Transaction.
1.47 No Waiver or Amendment
1.47.1 No failure to exercise or enforce and no delay in exercising or enforcing on the part of BCG of any right, power or privilege shall operate as a waiver thereof, nor shall it in any way prejudice or affect the right of BCG afterwards to act strictly in accordance with the powers conferred on BCG under these terms and conditions, nor shall any single or partial exercise of any right, power or privilege of BCG preclude any other or further exercise thereof or the exercise of any other right, power or privilege of BCG.
1.47.2 Unless otherwise expressly agreed in writing by BCG, no waiver of any provision in this Customer Agreement, rules and regulations applicable to any exchange or clearing house, or otherwise imposed by BCG relating to all or any Transaction, Service or Account may be implied from any conduct or course of dealing between the Customer and BCG.
1.48 Time of Essence
1.48.1 Time shall be of the essence in respect of the performance of all obligations and duties of the Customer.
1.49 Force Majeure
1.49.1 BCG shall not be liable for any loss or damage whatsoever suffered or incurred by the Customer (including any Loss or delay in the performance of any of BCG’s duties or obligations, or BCG’s execution of any Orders under this Customer Agreement) caused by events beyond BCG’s reasonable control, including fire, earthquake, tsunami, flood, lightning, riots, strikes, lockouts, government action, change of law, acts of terrorism, war, telecommunications disruption, computer failure, the failure of any relevant exchange, clearing house, settlement system or broker for any reason to perform its obligations or any act of God or natural disaster.
1.50 Financial Crimes
1.50.1 BCG shall be entitled to take all actions BCG considers appropriate in order for it to meet any obligation or requirement, either in Singapore or elsewhere, in connection with the detection, investigation and prevention of financial crime including fraud, money laundering, terrorism financing, bribery, corruption, or tax evasion or the enforcement of any economic or trade sanction (“Financial Crime”).
1.50.2 The Customer understands and agree that if any activities, conduct or circumstances the Customer is involved in (directly or indirectly) may, in the sole and absolute discretion of BCG, expose BCG to legal or reputational risk, or actual or potential regulatory or enforcement actions, BCG shall at any time, without giving any reason or notice to the Customer, have the right to immediately:- (a) close all Accounts and terminate all Services the Customer has with BCG;
1.51 Definitions and Interpretation
1.51.1 The headings herein are inserted for convenience only and shall not affect the construction of this Customer Agreement.
1.51.2 Expressions in the singular form shall include the plural and vice versa, and all references to the masculine gender shall include the female and neuter genders and vice versa.
1.51.3 References to “include”, “includes” and “including” as they appear in this Customer Agreement are not limiting and are deemed in each instance to be followed by the words “without limitation”.
1.51.4 The expression “may” when used in respect of BCG shall be understood as permitting and entitling BCG to do or not to do a thing, or to take or not to take any action, as the context may require, in BCG’s discretion, but shall not be understood to mean that BCG owes any obligation (whether to the Customer or otherwise) to do or not to do the thing, or to take or not to take such action.
1.51.5 References to “Clause” and “Section” in this Customer Agreement are, unless otherwise expressly provided, references to clauses and sections respectively of this Customer Agreement.
1.51.6 References to the “Schedule” in this Customer Agreement are, unless otherwise expressly provided, references to the Schedule to this Customer Agreement as may be from time to time amended or supplemented.
1.51.7 References to Applicable Laws (or any provisions thereunder) are to such Applicable Laws and/or provisions as may be from time to time modified, amended or re-enacted.
1.51.8 For the purposes of this Customer Agreement, terms used herein shall, unless otherwise provided or unless the context otherwise requires, have the meaning respectively ascribed to them below:
“Account” means each account of the Customer with BCG (including any account subsequently opened or established with BCG from time to time), and includes any account on which the Customer effects Transactions or which are used for the purposes of the Services, pursuant to this Customer Agreement;
“accredited investor” shall have the meaning as ascribed to it in SFA;
“Additional Margin” shall have the meaning as ascribed to it in Clause 1.25.2;
“Agreed Clearing System” means such clearing house and/or clearing facilities as BCG and the Customer may agree from time to time through which OTC Clearing Transactions may be cleared;
“Applicable Laws” means all relevant or applicable statutes, laws, rules, regulations, notices, orders, bye-laws, rulings, directives, circulars, guidelines, practice notes and interpretations (and any and all forms, letters, undertakings, agreements, deeds, contracts and all other documentation prescribed thereunder) (whether of a governmental body, regulatory or other authority, market, exchange, clearing house or self-regulatory organisations in relation to which BCG or a relevant Account, Service or Transaction is subject to);
“Application” means the application by the Customer to open an Account, in the form prescribed by BCG;
“Associate” means, in relation to BCG, INTL FCBCG Ltd and INTL FCBCG Financial Inc. In so far as rights and duties are herein expressed to be accorded to or imposed upon any Associate of BCG, BCG shall be regarded as entering into this Customer Agreement on behalf of that Associate;
“Business Day” means any day on which BCG is open for business in Singapore excluding Saturdays and Sundays and gazetted public holidays;
“clearing house” means any clearing facility in any jurisdiction on which BCG clears trades (either directly or by way of an intermediary) from time to time;
“close-out”, in respect of any Transaction, shall mean the act of closing out such Transaction (whether by way of an offsetting transaction or otherwise) or replacing such Transaction, for providing BCG with the economic benefits of the material terms of such Transaction;
“Collateral” includes cash and such other property as BCG may deem acceptable as collateral for the obligations of a Customer and up to a maximum percentage of its face value or Margin Value that BCG may from time to time reasonably determine;
“Commodity” includes any Currency, Security, financial instrument (including collective investment scheme) or such other item or things (including gold, silver, platinum or other metals, whether in the form of bullion or otherwise) as may constitute the subject matter of spot or forward contracts, futures contracts, options or OTC Transactions;
“Confirmation” means the written notice (including 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;
“Currency” means money denominated in the lawful currency of any jurisdiction;
“Customer” means the person or persons named in the Application as the applicant(s), and where the context so admits, includes any one of those persons and may include one or more individuals, a partnership, a sole proprietorship or a corporation;
“Default” shall have the meaning ascribed to it in Clause 1.17;
“Electronic Facilities” shall have the meaning ascribed to it in Clause 1.10.2;
“exchange” means any exchange or market in any jurisdiction on which BCG trades (either directly or by way of an intermediary) from time to time;
“expert investor” shall have the meaning as ascribed to it in SFA;
“Extraordinary Event” shall mean any event which BCG in good faith believes to have a material effect on any Transaction and shall include any Intermediary Default, 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 BCG’s good faith opinion adversely alters or changes the rights or obligations which BCG in good faith undertook upon the establishment of such Transaction;
“Financial Crime” has the meaning ascribed to it in Clause 1.50.1;
“futures contract” shall have the meaning ascribed to such expression in the SFA;
“institutional investor” shall have the meaning as ascribed to it in SFA; “Intermediary” shall have the meaning ascribed to such expression in Clause 1.7.1;
“Intermediary Default” means any wrongdoing, act, omission, insolvency, negligence, breach or duty, misconduct, fraud, wilful default or any other failure or default by or in respect of an Intermediary;
“INTL FCBCG Group” means BCG and its related corporations and Associates;
“BCG Website” means www.balfourcapitalgroup.com or such other website as may be designated by BCG from time to time;
“Loss” means any and all actions, claims, liabilities, losses, damage, costs, charges and/or expenses of whatsoever nature and howsoever arising, incurred or suffered, including legal costs, cost of funding and loss or cost incurred as a result of the terminating, liquidating or re-establishing of any hedge or related trading position;
“Margin” has the meaning ascribed to it in Clause 1.25.1;
“Margin Value” means the value of the Margin placed by the Customer in the Account as determined by BCG in its discretion;
“Officer” means any officer or employee of BCG;
“Order” means any offer to enter into a Transaction, or any instruction, request, application or order in respect of a Transaction (in whatever form and howsoever sent, given or transmitted) to BCG of the Customer or which BCG or an Officer reasonably believes to be the instruction, request, application or order of the Customer in respect of a Transaction and includes any instruction, request or order to revoke ignore or vary any previous request or order in respect of a Transaction; “OTC” means over-the-counter;
“OTC Clearing Rules” means the relevant rules of each Agreed Clearing System provider and, in particular, the specific rules relating to clearing of transactions eligible to be cleared through such Agreed Clearing System including, in the case of OTC Clearing Services for transactions eligible to be cleared through the Agreed Clearing System of the SGX-DC, the Clearing Rules of SGX-DC and, in particular, Chapter 7 of the Clearing Rules of SGX-DC;
“OTC Clearing Services” means clearing services provided by BCG to the Customer for clearing of OTC Clearing Transactions intended as transactions eligible to be so cleared through such Agreed Clearing Systems, whether directly through BCG as a relevant clearing member with respect to the relevant Agreed Clearing Systems or indirectly through an Intermediary as such relevant clearing member in either case via such approved trade registration systems as may be established or approved with respect to the relevant Agreed Clearing Systems;
“OTC Clearing Transaction” means an OTC Transaction for which BCG provides OTC Clearing Services;
“OTC Transaction” means a Transaction that is concluded over-the-counter and not on or through an exchange under its business rules, whether or not cleared and/or settled through an exchange or clearing house;
“Password” means the unique code(s) used by the Customer to access any form of electronic communication in order to communicate to BCG instructions, Orders or any other communication;
“Person” includes any natural person, government or statutory body, business, firm, partnership, corporation or unincorporated body;
“PDPA” means the Personal Data Protection Act 2012 of Singapore and the regulations issued under it;
“Personal Data” includes any data, whether true or not, about an individual who can be identified from that data such as the individual’s name, NRIC, passport or other identification number, telephone numbers, address, email address and any other information relating to individuals, which the Customer has provided to BCG or which BCG is likely to have access;
“Potential Default” means any event or circumstance which, with the giving of notice or the lapse of time or both, would constitute a Default;
“property” includes all moveable and immovable property (including Securities, Commodities and debts and other choses in action) and any estate, share, right or interest in any property;
“Purposes” shall have the meaning ascribed to it in Clause 1.28.2;
“Relevant Currency” shall have the meaning ascribed to it in Clause 1.14.1; “Securities” shall have the meaning ascribed to the term “securities” in the SFA;
“Service” means any and all services and/or facilities provided by or through BCG; “Settlement Date” is the day on which the Transaction is required to be settled;
“SFA” means the Securities and Futures Act, Chapter 289 of Singapore and the regulations issued under it;
“SF(COI)R” means the Securities and Futures (Classes of Investors) Regulations 2018 promulgated under the SFA;
“SFR” means the Securities and Futures (Licensing and Conduct of Business) Regulations promulgated under the SFA;
“SGX-DC” means the Singapore Exchange Derivatives Clearing Limited;
“SGX-DT” means the Singapore Exchange Derivatives Trading Limited;
“SGX-ST” means the Singapore Exchange Securities Trading Limited;
“Third Party” means any party who is not a party to this Customer Agreement;
“Transaction” includes transactions in such Commodities, Currencies, futures contracts, indices, rates, financial instruments, Securities or such other transactions as BCG may from time to time permit to be carried out under any Account;
“Username” means login identification which may be used by the Customer to access any form of electronic communication in order to communicate to BCG instructions, Orders or any other communication;
“US Person(s)” means a US Citizen or resident individual, a partnership or corporation organised in the US or under the laws of the US or any state of the US, a trust if (i) a court within the US would have authority under applicable law to render orders or judgments concerning substantially all issues regarding administration of trust, and (ii) one or more US Person(s) have the authority to control all substantial decisions of the trust, or an estate of a decedent that is a citizen or resident of the US. This definition shall be interpreted in accordance with the US Internal Revenue Code. Please note that persons who have lost their US citizenship and who live outside the US may nonetheless in some circumstances be treated as US Person(s); and
“Value Date” means the date on which the respective obligations of the parties to a foreign exchange or OTC Transaction are to be performed.
2.1.1 The Customer consents to the collection, storage, and disclosure by BCG and its agents of any confidential information to persons from who BCG and its agents receive or make payments on the Customer’s behalf and to governmental authorities, both domestic and foreign, as required by law or other agreement by or between governments. Confidential information includes the Customer’s Personal Data, bank account details, transactional information, and any other information that a reasonable person would consider being of a confidential or proprietary nature. BCG may also have to report information about the Customer’s direct and indirect shareholders or other owners or interest holders and, if the Customer is a trust, its beneficiaries, settlors or trustees. The Customer’s consent shall be effective notwithstanding any applicable nondisclosure agreement. The Customer represents that it has secured from any Third Party on whom the Customer has provided information to BCG any consents and waivers necessary to permit BCG and its agents to carry out the actions described in this paragraph, and that the Customer will secure such and consents and waivers in advance of providing similar information to BCG in the future.
2.1.2 The Customer consents to providing all required documentation or information, including, but not limited, to date of birth, countries of citizenship, countries of tax residency and associated taxpayer identification numbers, which may be required to enable BCG and its agents to document the Customer in accordance with United States Internal Revenue Code (“FATCA”) or other agreement by or between governments. The Customer shall notify BCG in writing within thirty (30) days of any change that affects the Customer’s tax status pursuant to BCG or any other legal requirement or agreement by or between governments. The Customer acknowledges that additional documentation or other information may be required in order to process any such change and consent to provide all required documentation or other information.
2.1.3 If some of the Customer’s income is reportable and some is not, BCG will report all income unless BCG can reasonably determine the reportable amount.
2.1.4 The Customer hereby authorises BCG and any of its agents, where appropriate, to withhold or otherwise collect from any payment any required tax or other government assessment, including, but not limited to, any requirement to withhold or deduct an amount under the United States Internal Revenue Code and the regulations and other guidance thereunder, each as amended from time to time or any other agreement by or between authorities.
2.1.5 To the greatest extent permitted by applicable law, BCG will not be liable to the
Customer for any reasonable losses, costs, expenses, damages, liabilities the Customer may suffer as a result of BCG complying with legislation, regulations, orders or agreements with tax authorities or by and between tax authorities in accordance with this condition, or if BCG makes an incorrect determination as to whether or not the Customer should be treated as being subject to tax or tax reporting obligations where the incorrect determination results from BCG’s reliance on incorrect or incomplete information provided to BCG by the Customer or any Third Party, unless that loss is caused by BCG’s gross negligence, wilful default of this Clause or fraud.
2.1.6 This Clause 2 will override any inconsistent term or consent provided by the Customer under any agreement with BCG to the extent that such agreement provides fewer or lesser rights for BCG, whether before or after the date of this Customer Agreement.
2.2.1 Without prejudice to any other rights or remedies BCG may otherwise have, the Customer shall indemnify, keep indemnified and hold harmless BCG against any and all liabilities, actions, claims, losses, damages, costs and expenses (including but not limited to legal costs on a full indemnity basis) suffered or incurred by BCG as a result of or in connection with the Customer’s US Persons status being inaccurate, outdated or untrue.