General Terms and Conditions
General Terms and Condition » General Terms and Conditions
(Revised clause 14.4 - Date of notification 01 April 2015)
Part B : Terms Applicable Generally
||Opening, Closing or Suspending of Account
||The Client hereby requests and authorises CIMB to open the Account in the Client’s name including, if necessary, such Securities Accounts with the Bursa Depository or any centralised depository or clearing agency as may be necessary for the provision of the Transactional Services.
||The Client agrees that he will at all times comply with and observe all the Malaysian Rules and/or the Foreign Rules. The trading (and continued trading) of Securities under the Account is at the discretion of CIMB and subject to compliance of these terms and conditions by the Client. CIMB shall not be obliged to give any notice to the Client or provide any reasons for the variation of any trading limit, or the suspension or termination of the Account. The Client agrees that CIMB and its Affiliates shall not be responsible or liable for any losses whatsoever (direct, indirect, special, consequential, punitive or otherwise), loss of investment opportunity or failure to make a profit suffered or incurred by the Client as a result of or in connection with any insufficient trading limit(s) (howsoever caused) in respect of the carrying out of any Transactions by the Client. The Client further agrees that CIMB shall have the right at any time to refuse to act on the Client’s behalf, refrain from executing the Client’s orders or limit the purchases or sales ordered by the Client without having to disclose any reason whatsoever for CIMB’s refusal to act.
||All transactions by CIMB on the Client’s behalf shall be subject to the Malaysian Rules and/or the Foreign Rulesand/or the applicable constitution, by-laws, rules, regulations, customs, usage, rulings and interpretations of the relevant stock exchanges on which the Securities are listed and its clearing organisation on which such transactions are executed or cleared by CIMB or CIMB’s agents or any of its respective affiliates for the Client’s Account. CIMB shall not be liable to the Client as a result of any action taken by CIMB or CIMB’s agents or any of their respective affiliates to comply therewith, including, without limitation, any liquidation, in whole or in part, of the Client’s positions or any other action taken, in the event that any relevant stock exchange requires the same.
||The Client may be required to place a deposit with CIMB before the Client can begin utilising the Account. CIMB may use such deposit to set-off any sums owed to it by the Client and shall return the balance of such deposit, if any, free of interest upon the termination of the Account.
||The Client agrees that CIMB may have the absolute discretion to close or suspend the Client’s Account without giving any reason whatsoever (including but not limited to the non-trading nature of the Client’s Account, amounts owing to CIMB or it being dormant).
||Records of Instructions / Confirmation
||The Client agrees that all orders made through the telephone or the internet trading facilities or Online Services shall be deemed to be confirmed and binding on the Client without any requirement to furnish proof to CIMB. In this regard, CIMB may operate the Client’s Account and execute trades upon receipt of either the Client’s oral or written instructions believed by CIMB to be authentic or genuine and to have been given by such one or more person(s) as notified by the Client from time to time in writing and CIMB shall not be made responsible or liable for any loss whatsoever (direct, indirect, special, consequential, punitive or otherwise) that may result from unauthorised instructions. CIMB is entitled (but not obliged) to seek further evidence to confirm or verify the authenticity of any instructions given or purported to be given by the Client, without incurring any liability in that respect.
||Where any dispute arises between the Client and CIMB in connection with or relating to the instructions or communications, whether electronic or otherwise, given by the Client or the Authorised Person in relation to the Transactional Services, CIMB’s record of such instructions or communications shall be accepted by the Client as final and conclusive evidence of such instructions or communications from the Client.
||The Client agrees to do such acts and deeds and to execute such documents as are necessary or are in the opinion of CIMB desirable to ratify or confirm anything done by CIMB in the proper exercise of any right or power conferred by these terms and conditions or any other agreement entered into pursuant to these terms and conditions or relating to the Account.
||Except as otherwise provided in these terms and conditions, the Client agrees to pay interest on all sums due to CIMB at a rate as may be prescribed by CIMB from time to time depending on the currency involved, for all outstanding sums due from the due date to the date of full payment.
||The Client acknowledges and agrees that CIMB may retain, for the benefit of CIMB and without any obligation to account to the Client, any interest CIMB receives from the Client’s monies deposited in the Trust Account (the “Client’s Monies”). Subject to the foregoing, CIMB may, in its sole and absolute discretion and from time to time, pay such interest as it may determine to the Client in relation to such Client’s Monies after taking into account any withholding tax and any administrative expenses incurred by CIMB in maintaining the Trust Account and the Client agrees and acknowledges that any interest paid by CIMB to the Client may be less than that received by CIMB.
||Subject to all applicable laws, the Client agrees that CIMB shall be entitled to retain all of the interest earned from the maintenance of any monies standing to the credit of the Account and the Client agrees that CIMB shall be entitled to retain all of the returns from investments of monies received on the Account.
||The Client agrees that the assets forming the Collateral will serve as collateral for the Liabilities to CIMB.
||CIMB shall at all times have a general and continuing lien over all or any of the Collateral, cash amounts and Securities in its custody to secure the payment of all monies now or later due and payable actually or contingently whether under these terms and conditions or otherwise howsoever. CIMB is entitled to combine and consolidate all the Client’s Accounts which the Client may have with CIMB or any of its Affiliates, and/or to set-off any amount standing to the credit of any of the Client’s Accounts which the Client may have with CIMB or any of its Affiliates against the Liabilities.
||If an Event of Default occurs or is threatened against the Client, the Client authorises CIMB, without prior notice to the Client, to realise and liquidate at any time any of the Collateral, to the extent permitted by applicable law. The Client is fully aware and acknowledges that the Collateral (and/or the proceeds of sale thereof) may be immediately set-off in or towards satisfaction of the Liabilities (whether in whole or in part) if an Event of Default occurs.
||In so far as any Liabilities to CIMB are contingent or future liabilities, CIMB’s liability to the Client in respect of the sum(s) standing to the credit of any of the Client’s Accounts and all other payments due to the Client, shall to the extent necessary to cover such Liabilities, be suspended, until the happening of the contingent or future event and such sum(s) is, in the absolute discretion of CIMB, applied in satisfaction of the Liabilities.
||The security hereby created over the Collateral by this Clause 5 shall be a continuing security for the discharge of the Liabilities that may now or hereafter be due, owing, incurred or payable by the Client to CIMB and shall not prejudice any other security rights which CIMB may have in respect of the Collateral.
||The Client authorises CIMB to deal in any manner including but not limited to sale or disposal of the whole or part of the Securities pledged to CIMB or howsoever held or maintained under or in relation to the Client’s account (including the Client’s CDS Account) including without limitation to the utilisation of all or any cash or Securities standing to the credit of the Client’s Account at any time without notice to the Client and utilise the proceeds to set off and discharge any or all the Client’s Liabilities and obligations due and owing to CIMB. The Client further agrees that CIMB shall not be liable for any claims whether in contract, tort or otherwise, for any demands, actions or proceedings, losses and expenses including legal costs and all other liabilities of whatsoever nature or description which may be incurred or suffered by the Client arising from the sale of the said Securities.
The Client also agrees that CIMB may at its absolute discretion refuse to act on the Client’s instruction to effect transfer/withdrawal of Securities held in the Client’s CDS Account in the event there is an outstanding debt or Liabilities due to CIMB in the Client’s trading account.
||All the Collateral shall be charged to CIMB by way of equitable charge as a continuing security for (i) the payment of all sums that may from time to time become due to CIMB or any other party so appointed by CIMB whether under or by virtue of these terms and conditions or otherwise, including all fees, commissions, brokerage charges and/or all other amounts due to CIMB or otherwise arising under or in respect of any of the Transactional Services or the Transactions; and (ii) the performance of any of the Client’s obligations to CIMB, whether under or by virtue of these terms and conditions or otherwise, (collectively, the “Secured Indebtedness”) and so that subject as aforesaid:
(a) the charge hereby created shall be free from all encumbrances and adverse interests, or take priority over all
other interests in the monies and/or Securities;
(b) if the Client shall default in discharging on demand any sum hereby secured, CIMB may at any time
thereafter immediately n giving notice to the Client, retain, apply, sell or otherwise dispose of or cause to be sold
or otherwise dispose of all or any of the Collateral charged in accordance with this Clause 6.1 and apply the net
proceeds thereof in or towards the discharge of the Secured Indebtedness at such time or times and in such
manner and generally on such terms as CIMB may in its absolute discretion think fit for which purposes CIMB
may convert any monies or proceeds of sale into any currency at such rate of exchange as it may in its
discretion think fit;
(c) CIMB is hereby granted an irrevocable power of attorney for and on behalf of and in the name of the Client or
otherwise to execute all documents and do all acts and things necessary or appropriate to sell or dispose of or
complete the sale or disposal of all rights title and interest to and in any of the Securities liable to be sold or
disposed of under Clause 6.1(b); and
(d) the charge hereby created shall be in addition and without prejudice to any lien, rights of retention or other rights
to which CIMB is or may become entitled under the law or by virtue of these terms and conditions or otherwise.
||The security created by Clause 6 shall become immediately enforceable and the power of sale and other powers conferred by applicable laws, rules and regulations (as varied and extended by Clause 6) and all the other powers conferred on the Client by Clause 6 shall be immediately exercisable at any time after the Client shall have failed to pay or satisfy when due and in the manner provided in these terms and conditions any part or parts of the Secured Indebtedness.
||Except as expressly provided in these terms and conditions, CIMB does not make any other representations and warranties.
||Limitation of Liability
||Except as otherwise provided in these terms and conditions and to the fullest extent permitted by the law, the provisions in this Clause 8 set out CIMB’s entire liability (including any liability for the acts and omissions of its Affiliates, and the respective officers, employees and agents of CIMB and its Affiliates) to the Client, including matters in respect of:
(a) any breach of its obligations in relation to or in connection with or arising under these terms and conditions
including without limitation any loss or damage resulting from or due to (i) any errors or defaults of any kind in
accepting or acting on or executing any instructions given by the Client or an Authorised Person or in relation to
or in connection with any matter relating to Transactions or the provision of the Transactional Services or the
custody of the Securities or any transaction made or purported to be made or the payment and crediting of funds
or monies; (ii) any act, failure or omission or delay on the part of CIMB, its nominee, agent, sub-agent, officer,
employee or other authorised person in the provision of any of the Transactional Services; and
(b) any representation, statement or tortious act or omission (except fraud and fraudulent misrepresentation)
including negligence arising under or in connection with these terms and conditions.
||CIMB’s maximum liability (including, without limitation, tortious liability (if any)) for damages, losses, costs or expenses (including costs and expenses of or incidental to the negotiation, presentation and settlement of any claim for breach of CIMB’s obligations under these terms and conditions) suffered or incurred by the Client, including but not limited to those arising under or in connection with the matters set out in Clauses 8.1(a) and 8.1(b) shall be limited to the amount of RM5,000.
||CIMB shall not be liable to the Client in respect of any loss of profits or goodwill, or any direct (save as provided in these terms and conditions), indirect or consequential losses, costs or expenses including, without limitation to the foregoing, any loss or damage suffered by the Client as a result of any action brought by a third party, even if such losses, costs or expenses are reasonably foreseeable or CIMB had been advised of the possibility of the Client incurring the same.
||The Client is aware that circumstances could arise in which the Client’s remedies set forth in these terms and conditions may be or appear insufficient to the Client. The Client agrees that the limitations on liability specified in this Clause 8 shall survive and apply even under such circumstances. In the light of the overall agreement reached hereunder, the Client has agreed that the remedies and limitations on liabilities set out herein are part of a reasonable allocation of the risks and benefits of the agreement between the parties taking all relevant factors into consideration including the fees, commission, brokerage charges and other charges payable in accordance with these terms and conditions and the availability and costs of insurance with respect to the said risks.
||If the Client is an individual, the Client’s executor(s) or administrator(s) shall be the only persons recognised by CIMB as being the Client’s successor(s) in the event of the Client’s death or incapacity. Upon the Client’s death, CIMB is entitled to retain any Securities or any sums standing in credit in the Account(s) until such time that the Client’s successor(s) produces to CIMB evidence, to the satisfaction of CIMB, that the Malaysian courts have appointed the Client’s successor(s) to deal with the Client’s affairs and property.
||Terms to Govern Once Any Facility is Used
||Regardless of whether the Client has executed the required documentation, the Client will be deemed to have agreed to these terms and conditions herein if the Client commences to trade through CIMB or to use any of the services set out in these terms and conditions. For the avoidance of doubt, all such transactions executed on the instructions of the Client or any Authorised Person, will be governed by these terms and conditions.
||CIMB or its Affiliates may from time to time deal in Securities with or for the Client in circumstances where CIMB or its Affiliates has a direct or indirect interest or a relationship of any description with a third party that may involve or result in a Conflict of Interest with the Client.
||Neither CIMB nor its Affiliates shall be liable to account to the Client for any profit, commission or other benefits made or received by it or for any loss, damage or expenses incurred by the Client in relation to such circumstances.
||Where CIMB acts as principal in any Transaction (apart from a Transaction of sale or purchase of an odd lot of securities), CIMB will inform the Client that it acts as principal in the Transaction before the Transaction is effected.
||Except as expressly stated in this Clause 11, neither CIMB nor its Affiliates is obliged to disclose any information connected with or relating to a Conflict of Interest situation to the Client at any time.
||Acknowledgement of Risks
||The Client acknowledges that trading in Securities, and any other Investment Products and/or Services, are subject to investment and market risks, including the possible loss of the entire principal amount invested. The Client acknowledges and agrees that he understands and is fully aware of the risks involved in trading in Securities, and other Investment Products and/or Services and will not hold CIMB liable for any losses whatsoever (direct, indirect, special, consequential, punitive or otherwise), loss of investment opportunity or failure to make a profit suffered or incurred by the Client as a result of or in connection with such transactions or investments.
||In addition to Clause 12.1 above, as set out in the risk disclosure statement to be signed by the Client before the provision of any Investment Products and/or Services by CIMB, the Client acknowledges that he understands the nature of the Investment Products and/or Services and the extent of his exposure to risk and has considered the appropriateness and suitability of trading and investing in light of his experience, objectives, financial and other relevant circumstances.
||Disclaimers relating to Information and Advice
||Without prejudice to or detracting from any other provision of these terms and conditions, the recommendation or advice the Client may receive from any of CIMB’s duly authorised employees, representatives or officers may be general or specific and the Client understands and notes the different implications of each type of advice received.
||In relation to any information relating to the Securities, and any other Investment Products and/or Services given by CIMB to the Client that is general and non-specific in nature (the “General Information”), the Client acknowledges and agrees that:
(a) the General Information is meant for the Client’s general knowledge only;
(b) in providing the General Information, CIMB:
(1) did not take into account the Client’s investment objectives, financial situation and particular needs;
(2) does not make any recommendations to the Client in respect of any Securities, and any other Investment
Products and/or Services;
(c) it is the Client’s responsibility to seek independent financial, legal or other professional advice with respect to
any dealing in any Securities, or any other Investment Products and/or Services;
(d) any dealings in Securities, or other Investment Products and/or Services is solely and exclusively based on the
Client’s own judgement and after the Client’s own independent evaluation into the merits and risks in relation to
such dealings or investments;
(e) the General Information although based upon information obtained from sources believed by CIMB to be
reliable, are opinions only, and may be inaccurate, incomplete and unverified; and
(f) CIMB makes no representation, warranty or guarantee as to, and shall not be responsible for, the accuracy or
completeness of, or the Client’s reliance upon, the General Information. In the circumstances, the Client
acknowledges and agrees that CIMB is not responsible for and liable to the Client for any loss that he may suffer
by reason of or arising out of or in connection with the provision of the General Information by CIMB to him.
||The Clientunderstands and acknowledges that any trading recommendations and market or other information communicated by CIMB to the Client are incidental to the provision of services by CIMB to the Client under the trading terms and do not constitute an offer to sell or the solicitation of an offer to buy any securities whether listed on Bursa Securities or any other stock exchanges. Such recommendations and information although based upon information obtained from sources believed by CIMB to be reliable, may be incomplete, may not have been verified and may be changed without notice to the Client. No representation, warranty or guarantee is made by CIMB as to the accuracy or completeness of any market or other information or trading recommendations furnished to the Client or as to the tax consequences of the Client’s transactions.
||CIMB may in its absolute discretion charge a service fee for the maintenance of an Account and may at any time set-off any monies and/or Securities in the Account against such service fee in accordance with these terms and conditions. In the event that there are no monies or Securities in such Account, CIMB may, notwithstanding anything in Clause 62, terminate such Account without giving notice to the Client.
||The Client hereby agrees to pay CIMB for the provision of the Transactional Services such fees, commission, brokerage charges and other charges at such rates as may be determined by CIMB from time to time, including all expenses incurred by CIMB or its agents with respect to the Transactional Services.
||CIMB shall be entitled to convert any sum received by it (whether for credit into the Account or in payment of any sum due to CIMB) to the currency of the Account or (as the case may be) the currency in which payment is to be made, at a rate of exchange determined by CIMB. CIMB shall also be entitled to convert any amounts in the Account or otherwise standing to the Client’s credit to any other currency for the purpose of carrying out his instructions or exercising CIMB’s rights under these terms and conditions. The Client agrees that any exchange rate losses and costs of conversion shall be fully borne by him.
||Any goods and services tax, other taxes or levies imposed by law or required to be paid in respect of any monies payable to or received or receivable by CIMB or any expenses incurred by CIMB, shall, except to the extent prohibited by laws, be borne and paid by the Client and CIMB shall be entitled to debit the Account. Further, where applicable, CIMB may issue, transmit or made available tax invoice to the Client by electronic means and the Client hereby agrees and consents to receiving such electronically transmitted tax invoice.
||The Client acknowledges that from time to time, CIMB may receive commissions, discounts, fees or otherwise in connection with or in relation to the issue of Securities to or for the Client or other dealings in respect of or relating to any Securities or Investment Products and/or Services for the Client. The Client agrees that CIMB may retain for the benefit of CIMB and without any obligation to account to the Client any commission, discounts, fees, or other monies which CIMB may receive from any providers of Investment Products and/or Services or other persons in connection with or in relation to the holdings, subscription, switching, transfer or redemption of Securities or Investment Products and/or Services or other transactions done or carried out by the Client with or through CIMB or any other dealings in respect of the Securities or Investment Products and/or Services.
||Payment/Receipt of Monies
||All payments which the Client is liable to pay under these terms and conditions shall be made in immediately available and freely transferable cleared funds, without set-off, counterclaim or other deductions or withholdings of any nature whatsoever and shall be made free and clear and without deduction for any present or future taxes. If any deduction or withholding is required for or on account of any taxes, the Client shall pay such additional amount as is necessary to ensure that CIMB receives the full amount which it would otherwise have received had no such deduction or withholding been required. The Client shall further pay the full amount of such deduction to the relevant taxation authority in accordance with any applicable law. Where the Client makes payment by cheque, cashier’s order, bank draft, in any other negotiable instrument or through Electronic Payment, the date of payment shall be the date when such instrument is cleared and full payment is finally received by CIMB.
||Trading Representatives are not authorised to collect payment or to handle Securities on behalf of CIMB. 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, such Trading Representative shall be deemed to be the Client’s agent. Any payment or deposit of the Securities shall be deemed to be made only when CIMB 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 and hereby irrevocably consents that in the event where:
(a) payments are made prior to the date for settlement of purchase contracts;
(b) CIMB receives monies from, or on account of, the Client for the purchase of or holding of Securities, or the
maintenance of any Account by the Client;
(c) CIMB receives monies for the Account of the Client in respect of a sale of Securities;
(d) CIMB receives monies from, or on account of, the Client for the purposes of managing the Client’s funds via
Trust Account; or
(e) CIMB receives monies from, or on account of, the Client in the course of CIMB’s business,
CIMB shall deposit such monies into the Trust Account. The Client agrees that CIMB may, for the purpose of depositing monies received on account of the Client which are denominated in a foreign currency in the Trust Account, maintain the Trust Account with a custodian outside Malaysia which is licensed, registered or authorised to conduct banking business in the country or territory where the account is maintained.
||All Securities delivered or to be delivered to CIMB from time to time for custody must be in the required or regular form in board lots and/or odd lots (as the case may be) in good delivery order.
||Any payment by CIMB to the Client shall be less any fees, commission, brokerage charges or expenses incurred in connection with the Transactional Services or any other sums which may be owed to CIMB and/or its Affiliates by the Client. Such payment shall be made by way of cheque or by Electronic Payment or in accordance with any instructions signed or made or purporting to be signed or made by the Client or the Client’s authorised signatory and will discharge CIMB from any liability to the Client or to any other party. Erroneous payments (as evidenced by the records of CIMB) made by CIMB to the Client will immediately constitute a debt owing to CIMB by the Client which must be immediately repaid to CIMB and which at the option of CIMB may also be recovered by way of set-off from future amounts held by CIMB for and on behalf of the Client or owing by CIMB to the Client.
||Foreign Exchange Risks
||All Transactions for any Account or any of the Transactional Services or relating to or arising out of any of the Transactional Services, including but not limited to any fees commission brokerage charges or expenses incurred in relation to any of the foregoing, will be settled in Ringgit Malaysia or, if CIMB agrees, in any other currency requested by the Client, but at a rate of exchange determined by CIMB. The Client will bear all losses, damages, or costs that result from any currency conversion connected with any transaction for the Account or any of the Transactional Services.
||The Client further agrees and acknowledges that where the Client directs or instructs CIMB to carry out a contra trade or set-off in relation to any Securities denominated in a foreign currency (the “Traded Currency”), CIMB may in its absolute discretion effect such contra trade or set-off in either the Traded Currency or the Base Currency, and where such contra trade or set-off is effected in the Traded Currency, settle such contra trade or set-off with the Client in the Base Currency at a rate of exchange determined by CIMB.
||CIMB is authorised to employ agents to perform all or any part of CIMB’s duties hereunder and to provide information regarding the Account to such agents. At the Client’s costs, CIMB may seek, and act on, an opinion or advice from any lawyer, accountant, consultant, information technology or services specialist, or other expert in respect of any obligations or performance of any duty or any other matter referred to in these terms and conditions and shall not incur any liability to the Client by acting upon such opinion or advice.
||Unless otherwise notified to the Client in writing by CIMB, the Client acknowledges and agrees that, in respect of the Transactional Services, the Trading Representative shall be deemed to be the Client’s agent whether or not such Trading Representative is deemed to be engaged or employed by the Client in law, and CIMB shall not be liable to the Client in respect of any acts (fraudulent or otherwise) or omissions of such Trading Representative and any loss or damage that may be suffered or incurred by the Client in respect of the acts or omissions of such Trading Representative.
||The Client acknowledges and agrees that there could be cases where a Trading Representative may be required to undertake the provision of services to the Client outside the premises of CIMB. CIMB will use all reasonable commercial efforts to inform the Client of these cases.