Part L : Miscellaneous Provisions
||CIMB shall not be held liable to the Client for or be liable to the Client for any claims, costs, damages or losses (direct, indirect, lost profits, lost savings, consequential, special, punitive or otherwise) whatsoever that may arise or that may be suffered or incurred by the Client as a result of any partial performance, delay in performance, or non-performance of any of its obligations under any agreement with the Client by reason of any cause beyond CIMB’s control, including but not limited to any breakdown, failure, interruptions, omission, errors or delay of transmission, communication, computer facilities or modem connection, postal strikes, labour disputes, strike or other industrial actions, power failure, the failure of any Exchange, market or clearing house, or failure of any relevant correspondent or other agent for any reason to perform its obligations, any act or omission of CIMB’s support or solutions partners or any other disturbances, war, terrorist attacks or events, hostility, riot (insurgency or otherwise), civil commotion, requisition by any government or any regional or local authority, or any agency thereof, or any law, regulation, edict, executive order or mandate of any such body or any act of God such as fire, flood, frost, storm, explosion, tsunami, earthquake, typhoon, tornado or landslide
||Service of Documents and Notices
||Any notices, instructions or other communications given hereunder or in connection with the Account may be verbal unless otherwise required by these terms and conditions, the rules, regulations and bye-laws of any Exchange to be in writing.
||Subject to Clause 3 hereof, in respect of orders made through the telephone or the internet trading facilities or Online Services, all verbal notices, instructions or communications from the Client to CIMB shall be followed by a confirmation in writing and CIMB may but shall not be obliged to act on any verbal notices, instructions or communications unless the same have been confirmed in writing. All notices, instructions or other communications sent by the Client to CIMB shall not be effective until actual receipt thereof by CIMB.
||Subject to Clause 54.2, all notices, instructions and other communication given by letter, telex, fax transmission or other electronic means (including e-mail) shall be addressed to or left, in the case of CIMB, at the business address of CIMB at the relevant time and in the case of the Client, at the address stated in any agreements entered into between CIMB and the Client or as notified in writing to CIMB by the Client from time to time. All such notices, instructions or other communications given by CIMB to the Client as aforesaid shall be deemed to have been duly received by the Client upon delivery if delivered by hand, or if by post three (3) days after posting, or in the case of telex, facsimile or other electronic means upon despatch.
||The Client agrees that personal service of a writ of summons or other originating process or sealed copy thereof of pleadings or other documents may be effected on the Client by leaving the same at the place of business or abode or the address in Malaysia of the Client last known to CIMB(and in this connection CIMB shall be entitled to rely on the records kept by it or that of any registry or government or statutory authority) and if the last known address of the Client shall be a postal box or other hold mail address then personal service may be effected by posting the same to such address or addresses and the Client irrevocably confirms that service of such writs of summons originating process pleadings or documents in the manner aforesaid shall be deemed good sufficient personal service on the Client.
||The waiver by CIMB of a breach or default in or non-compliance with any of the provisions of these terms and conditions or any continued course of such conduct by the Client shall not be construed or constituted as a waiver of any succeeding breach or default or non-compliance of the same or other provisions, nor shall any delay or omission on the part of CIMB to exercise or avail itself of any right, power, privilege or remedies that it has or may have hereunder operate as a waiver of any breach or default or non-compliance by the Client.
||If any provision of these terms and conditions is found by any court of competent jurisdiction to be invalid, unenforceable, illegal or otherwise, the invalidity, unenforceability or illegality of such provision shall not affect or impair the other provisions of these terms and conditions, and all provisions not affected by such invalidity, unenforceability or illegality shall remain in full force and effect
||Disclosure Of Information
||Subject to the provisions below which (i) prohibit disclosure of information to companies within the group of CIMB as well as companies within the group of CIMB Group Holdings Berhad, CIMB's ultimate holding company (“the Group Companies”) if objected to by the Client; and (ii) require the Client’s express consent for disclosure of information to third parties for the stated purposes, the Client hereby agrees and authorises CIMB to disclose to any of its regulators, agents, service providers, auditors, legal counsel, professional advisors, security providers and guarantors in or outside Malaysia and to companies within the Group Companies, whether such Group Companies are residing, situated, carrying on business, incorporated or constituted within or outside Malaysia, any information relating to the Client, the Client’s affairs and/or any accounts maintained by the Client with CIMB for facilitating the business, operations, facilities and services of or granted or provided by CIMB and/ or the Group Companies to their customers and any of such Client’s information to the extent required by any applicable law, rules, regulation, order of a court of competent jurisdiction or any government, supervisory or regulatory authority.
Disclosure to Group Companies shall be for facilitating the operations, businesses, cross-selling and other purposes of CIMB and/ or the Group Companies provided always that disclosure for cross selling purposes shall not be effected if such disclosure is objected by the Client by writing to CIMB at the following address (which may be changed by CIMB from time to time by notice to Client): 17th Floor, Menara CIMB, Jalan Stesen Sentral 2, Kuala Lumpur Sentral, 50470 Kuala Lumpur.
Further, where CIMB intends to share the Client’s information (excluding information relating to the Client’s affairs or account) with third parties for strategic alliances, marketing and promotional purposes, CIMB shall ensure that consent from the Client has been obtained
||As an Authorized Depository Agent of Bursa Depository, CIMB is hereby irrevocably authorised:
(a) to make enquiries and/or to request and receive ad-hoc statements of account in respect of the Client’s CDS
Account maintained with CIMB as and when CIMB shall see fit and/or deem necessary in CIMB’s absolute
(b) to disclose to the Client’s dealer’s representative(s) (whether present or in future) appointed by the Client,
authorised officers and CIMB’s employees or any other person as CIMB may think fit or necessary, information
in relation to all the Client’s trading accounts and/or Accounts with CIMB and details of transactions entered into
by the Client as well as shareholdings held beneficially or owned by the Client (including but not limited to
viewing, making balance enquiries and/or requesting and receiving statements of account).
For the avoidance of doubt, the authorisation in Clause 57.2(b) will remain in full force unless revoked by the Client in writing to CIMB,
AND the Client hereby agrees that the Client shall not hold CIMB, any of CIMB’s officers, employees, agents, representatives or dealer’s representative responsible or liable for disclosure of such information whether by reason of any misstatement, error, negligence, omission, delay or any matter in connection thereto.
||The Client hereby authorises CIMB to make such enquiries and carry out such credit checks on the Client and to obtain from any third party (including any credit bureau or credit agency) any and all of the Client’s information with such third party as CIMB may in its sole and absolute discretion deem fit, and undertake to execute and deliver such document as CIMB may require for the purposes of such enquires, credit checks and assessments and the obtaining of such information, including but not limited to, a letter of authorisation in such form as CIMB may require.
||The Client agrees to provide any information as CIMB may require and/or as is necessary to verify the Client’s identity and do all things necessary to enable CIMB to comply with applicable anti-money laundering and “know your client” laws and regulations. Without prejudice to any provision herein, the Client agrees that CIMB shall be held harmless against any loss arising as a result of any delay or failure to process any application or transaction if such information and documentation as has been requested by CIMB has not been provided by the Client
||Pursuant to the requirements of the Personal Data Protection Act 2010, CIMB is required to obtain the Client’s consent for the processing of Client’s personal data. Therefore, the Client hereby consents to CIMB’s processing of the Client’s personal data which the Client may provide to CIMB now and from time to time in connection with the services herein provided by CIMB to Client. The Client hereby confirms that the Client has read, understood and agrees to be bound by the CIMB Group Privacy Notice (which is available at www.itradecimb.com.my) (“Privacy Notice”) and the clauses herein, as may relate to the processing of the Client’s personal information. For the avoidance of doubt, the Client agrees that the said Privacy Notice shall be deemed to be incorporated by reference into this Agreement.
In the event the Client provides personal and financial information relating to third parties, including information relating to his/her next-of-kin, individual guarantors and dependents (where Client is an individual) or information relating to its directors, individual shareholders, officers, individual guarantors and security providers (where it is a corporation), for the purpose of opening or operating an Account with CIMB or otherwise subscribing to CIMB’s Investment Products and/or Services, the Client:-
(a) confirms that it/he/she has obtained their consents or are otherwise entitled to provide this information to CIMB
and for CIMB to use it in accordance with this agreement, the provision of CIMB’s service and the continuing
operation of the Client’s Account;
(b) agrees to ensure that the personal and financial information of the said third parties is accurate;
(c) agrees to update CIMB in writing in the event of any change to the said personal and financial information; and
(d) agrees to CIMB’s right to terminate this agreement should such consent be withdrawn by any of the said third
||Where the Client instructs CIMB to effect any sort of cross-border transaction or Foreign Transaction (including to make or receive payments), the details relevant to the cross-border transaction or Foreign Transaction (including information relating to those involved in the said transaction) may be received from or sent abroad, where it could be accessible (whether directly or indirectly) by overseas regulators and authorities in connection with their legitimate duties (e.g. the prevention of crime). In instructing CIMB and/or CIMB’s agents to enter into any cross-border transaction on the Client’s behalf, the Client agrees to the above said disclosures on behalf of the Client and others involved in the said cross-border transaction or Foreign Transaction.
||CIMB may use a credit reporting/reference agency to help make decisions, for example when CIMB needs to:
(a) check details on applications for credit and credit-related or other facilities;
(b) manage credit and credit-related accounts or facilities, including conducting reviews of the Client’s Accounts
and portfolio(s); and/or recover debts. Client will be linked by credit reporting/reference agencies to any other
names used by Client or have been used by Client, and any joint and several applicants. CIMB may also share
information about the Client and how Client manages its Account(s) with relevant credit reporting/reference
||Without derogation to anything herein provided in Clause 57 and specifically with respect to individual Clients - Even after the Client has provided CIMB with any information, the Client will have the option to withdraw the consent given earlier. In such instances, CIMB will have the right to not provide or to discontinue the provision of any product, service, Account(s) and/or facility(ies) that is/are linked with such information.
||Without derogation to anything herein provided in Clause 57 and specifically with respect to corporate Clients – In the event that the said consent or authority referred to in clause 57.5 above is subsequently revoked by any of the said third parties, the Client agrees that CIMB shall have the absolute right to terminate this Agreement or close the Account for which the consents of such third parties are related to the provision to the Client of CIMB’s services or which may be required for the carrying on of any services herein by CIMB.
||CIMB reserves the right to amend this clause from time to time at CIMB’s sole discretion and shall provide prior notification to the Client in writing and place any such amendments on our websites and/or by placing notices at the banking halls or at prominent locations within CIMB branches.
For the purposes of this Clause 57, the CIMB Group consists of CIMB Group Holdings Berhad and all its related companies as defined in Section 6 of the Companies Act 1965 and Affiliates that provide financial and other regulated services, excluding companies, branches, offices and other forms of presence operating outside Malaysia, and the use of the words “us”, “we” and “our” are to be read as references to the CIMB Group.
This clause shall be without prejudice to any other clause in this Agreement which provides for the disclosure of information.
||If there are any monies or Securities (generally to be hereafter referred to as “property”) in the Account which is unclaimed by the Client seven (7) years after CIMB receives such property and CIMB determines in good faith that it is not able to trace and/or contact the Client, the Client hereby agrees that:
(a) during the seven (7) years in which CIMB holds the property, and to the extent permitted by law, for each
subsequent year after the seventh (7th) year in which CIMB holds the property, CIMB shall be entitled to charge
a fee in respect thereof, in such amount as CIMB may determine in its absolute discretion, which fee shall
immediately be an amount due to CIMB. The Client agrees that such fees shall be applied against the property
where possible, or, at CIMB’s sole and absolute discretion, against such other monies or Securities in CIMB’s
custody or standing to the credit of any of the Client’s Accounts with CIMB, and accordingly, the property,
monies or Securities (as the case may be) shall be reduced by an amount equal to such fees; and
(b) CIMB may, at its sole discretion and to the extent permitted by law, appropriate to itself all property then
standing to the credit of the Account together with such property as may from time to time continue to accrue to
that Account (whether by way of dividends, interest or otherwise).
||General Warranties, Representations and Undertakings
||In addition to such other warranties, representations and undertakings which the Client has made in these terms and conditions, the Client warrants, represents and undertakes to CIMB (on a continuing basis and which representations and warranties are deemed to be repeated each time an instruction is issued by the Client or an Authorised Person to CIMB and to the intent that such representations, warranties and undertakings shall survive the completion of any transaction contemplated herein and/or the termination of these terms and conditions) that:
(a) the Client has the power and the capacity to enter into, execute, deliver and perform his obligations under these
terms and conditions or a Transaction and such obligations are valid and binding on the Client and are
enforceable in accordance with their respective terms;
(b) the entry into, executive and delivery of these terms and conditions or a Transaction does not (i) require any
consent or approval of any person which has not already been obtained; (ii) violate any applicable law or
regulation or any order, injunction, decree, award or condition of any government, public body, judicial,
administrative or organisation presently having jurisdiction over the Client; or (iii) result in the breach of or would
constitute a default under any agreement to which the Client is a party or a surety, in particular under any
agreement relating to any loan, mortgage, bond, deed or guarantee;
(c) no Event of Default has occurred or which, with the passage of time or the giving of notice, or both, has occurred
or is continuing or would occur in consequence of the Client entering into these terms and conditions or a
(d) all the particulars and information given to CIMB are accurate, true, correct and complete and shall remain
accurate, true, correct and complete;
(e) the Client has not withheld and will not withhold any material fact or information from CIMB and the Client shall
furnish CIMB promptly with such further additional and/or material change of information as CIMB may require at
any time or from time to time;
(f) the Client is not a citizen or resident of the United States of America, its territories, possessions and areas subject
to its jurisdiction;
(g) the Client will notify CIMB in writing immediately should there be any change in the particulars given in
connection with these terms and conditions and any other agreements entered into between the Client and
CIMB, including but not limited to change in address, contact particulars and residency and tax status;
(h) the Client is the underlying principal of the Account and is acting for itself/himself/herself and not as nominee,
custodian, trustee and/or for and on behalf of any other person and that no person other than
itself/himself/herself has or will have any interest in the Account;
(i) the Client is the beneficial owner of the Securities placed or to be placed with CIMB, its agents or nominees from
time to time or has authority from the true owner to deal with such Securities and that such Securities are fully
(j) the Client has good title to the Securities and the Client can sell through CIMB and undertake to promptly deliver
to CIMB documents of title in respect of Securities sold by the Client or on the Client’s behalf;
(k) the use of the monies paid to CIMB or used in the purchase of the Securities by the Client does not contravene
any laws in Malaysia;
(l) no bankruptcy or no winding-up proceedings have commenced against the Client and the Client is not a
defaulter on Bursa Securities Defaulters List; and
(m) the Client shall confirm the accuracy of all personal details and other particulars within fourteen (14) days of
notice by CIMB that the Client’s Account has been first opened and in all other cases, promptly as and when
requested by CIMB.
||The Client authorises CIMB to verify, in any manner with any third party, the information furnished herein or from time to time as CIMB may deem fit. The Client also authorises CIMB to make any checks and/or obtain any information and/or confirmation, with or from any credit reference agencies, and/or from any financial institutions, on the Client or any other person, individual and/or entity as CIMB may deem fit, for any purposes which CIMB may deem fit. Notwithstanding this Clause, the Client’s representations, warranties and undertaking are given irrespective of whether CIMB has carried out the aforesaid verification and/or checking, such verification and/or checking shall not be in any way affect the Client’s representations, warranties and undertaking or prejudice any claim by CIMB under the Client’s representations, warranties and undertaking.
||The Client undertakes to fully and effectively indemnify CIMB and its Affiliates, and keep CIMB and its Affiliates, indemnified and hold harmless from and against and in respect of all liabilities, losses, costs, charges, expenses (including but not limited to legal fees and costs on a full indemnity basis), claims, demands, actions and proceedings whatsoever which may be taken against or incurred or sustained by CIMB and/or its Affiliates directly or indirectly from or by reason of or in relation to or arising from or in connection with the provision of the Transactional Services, the use of the Electronic Payment for Shares Service by the Client, the use of the Online Services or the breach of these terms and conditions on the part of the Client or its Authorised Person or any third party rights, including but not limited to any infringement of intellectual property rights and the Client shall pay and reimburse the same to CIMB on demand at any time or from time to time.
||The Transactional Services may be terminated:
(a) for any reason whatsoever by the Client and/or CIMB giving seven (7) Market Days’ notice in writing; or
(b) by CIMB immediately upon the occurrence of an Event of Default.
||Upon termination of the Transactional Service as set out in Clause 61.1, CIMB is authorised to deliver as soon as is practicable thereafter any Securities held by it to the Client or the Client’s successors in title after repayment of any debit balance and after deduction of CIMB’s outstanding fees and expenses, if any. Such notice to terminate the Transactional Service shall not be a waiver of any or all accrued obligations of each Party in respect of the Account and these accrued obligations shall continue to be governed by these terms and conditions until such obligations are fully performed.
||The termination of the Transactional Service shall not prejudice, impair or otherwise adversely affect any of CIMB’s rights over any Collateral or the repayment of any or all outstanding obligations of the Client until such time as all the obligations and liabilities of the Client to CIMB is discharged and paid in full.
||Upon or at any time after the termination of the Transactional Service, provided that all outstanding sums owed to CIMB by the Client shall have been discharged and paid in full and CIMB shall have executed a full and proper acknowledgement and discharge in respect thereof, CIMB shall transfer the Collateral and all other Securities which are then held by CIMB or such person as per the Client’s written instruction. In the absence of such notification by the Client to CIMB or upon the expiry of the notice to terminate the Transactional Services, CIMB is authorised to dispatch the same to the Client at the Client’s risk and expense to the address of the Client by registered post or in the case of book-entry securities, CIMB shall be entitled to transfer such securities to any account of the Client with the applicable central depository or custodian. Upon such posting and/or transfer, CIMB shall have no further liability for the delivery and/or transfer thereof.
||Without prejudice to any other rights or remedies which CIMB may have at law or in equity or under these terms and conditions, upon termination of the Transactional Service CIMB shall be entitled to:
(a) sell any or all Securities held or carried for the Client or purchase any or all Securities held or carried as a short position from the Client or any third party at the Client’s cost; and
(b) exercise all rights over and in respect of any other Collateral including but not limited to selling any or all of the non-cash Collateral in such manner and at such times as CIMB deems fit with only such notice which is required by applicable law and which cannot be waived, and the sale of such Collateral to CIMB or any of its Affiliates, will transfer the title to ownership of such Collateral free from any claim or right of any kind, including any equity interest of the Client, such right and equity being hereby expressly waived and released.
||Notwithstanding anything contained in Clause 54 service of notice of termination by the Client to CIMB shall be effective only upon actual receipt thereof by CIMB.
||To the fullest extent permitted by the law, CIMB shall not be liable to the Client for any claims, costs, damages or losses (direct, indirect, consequential, special, punitive or otherwise) whatsoever that may arise or that may be suffered or incurred by the Client as a result of a termination of the Account or the Transactional Services or part thereof by CIMB.
||Any fees, expenses, costs and other charges of CIMB accrued or incurred up to the effective date of termination shall be paid by the Client.
||After the termination of the Transactional Services, CIMB shall close the Account at such time that it deems appropriate
||Electronic Records of Contract Notes and Statement of Account
||The Client agrees and consents to the receipt of contract notes and statements of account from CIMB in the form of an electronic record through the Electronic Communications should CIMB in their discretion make these available to the Client. If the Client no longer wishes to receive contract notes and/or statements of account in the form of an electronic record, the Client shall give seven (7) calendar days’ written notice of such wish to CIMB.
||In the case of electronic records of contract notes and/or statements of account despatched to the Client by electronic mail, the Client shall be deemed to have received such electronic records immediately after despatch of such electronic records from CIMB’s electronic mail server. In the case of electronic records of the contract notes and statements of accounts posted on the Website(s), the Client shall be deemed to have received such electronic records immediately after it has been posted on the Website(s) for the Client to retrieve.
||In the event CIMB is unable to successfully send any statement of account due to any reason whatsoever to the Client after two (2) continuous attempts, CIMB shall have the discretion to send to the Client the statement of account by any other method, including by regular post.
||The Client acknowledges and agrees that any electronic transmitted information to the Client cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, stolen, destroyed, delayed or incomplete or otherwise be adversely affected or unsafe to use. CIMB shall not be liable to the Client in respect of any error, omission, theft or loss of confidentiality arising from or in connection with the electronic communication of information to the Client. As such, the Client shall be responsible for protecting his/her own systems and interests in relation to electronic communications.
||Electronic Records and Admissibility
||The Client agrees to the admission of electronic records, whether owned or maintained by CIMB or any Exchange, and any part thereof as evidence in Court, in any tribunal or body having quasi-judicial function, and further agrees not to challenge or dispute the authenticity, admissibility or accuracy of such electronic records.
||In respect of Transactions involving Securities traded on the Bursa Securities, these terms and conditions shall be read with the Malaysian Rules.
||In the event of any conflict between these terms and conditions and any law, rule, requirement or other provision such as is referred to in Clause 64.1, these terms and conditions shall be modified or superseded to the extent necessary to eliminate such conflict, but shall in all other respects continue in full force and effect.
||Where the Transactional Services are made available on separate or additional terms, those terms shall be read in conjunction with these terms and conditions. In the event of any conflict between these terms and conditions and such separate or additional terms, such separate or additional terms shall prevail.
||The Client agrees to submit to the exclusive jurisdiction of the Courts of Malaysia, but CIMB will be at liberty to proceed against the Client in any court in any jurisdiction. All transactions and agreements between the Client and CIMB shall unless otherwise agreed be governed by and interpreted in accordance with the laws of Malaysia.
||The Client shall not charge, assign or transfer all or any of its rights, title, interest or obligations hereunder or under any Account or these terms and conditions without the prior written consent of CIMB.
||CIMB may assign or transfer any or all of its rights, title, interest and obligations hereunder or under any Account to any person CIMB deems fit, or change the office through which any transaction is booked, or through which CIMB makes or receives payments or deliveries for the purpose of any transaction.
||These terms and conditions shall be binding on the Client and its successors in title, permitted assigns, heirs, executors, administrators, personal representatives, receivers and trustees in bankruptcy. These terms and conditions shall also continue to be binding on and survive the Client notwithstanding any change in its name, constitution or business/organisation or the name or constitution of CIMB, or the consolidation, amalgamation or otherwise of the Client into or with any other entity, or the consolidation, amalgamation or otherwise of CIMB into or with any other entity (in which case the terms shall be binding on the successor entity).
||Entire Agreement and Amendments
||These terms and conditions, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties, whether written or oral, relating to the same subject matter.
||The Client acknowledges and agrees that the Client will always abide by all terms and conditions imposed by CIMB relating to the services extended to the Client herein and the Client’s Account and that CIMB may at any time and from time to time impose, amend, modify, supplement and/or vary such other terms and conditions in CIMB’s sole and absolute discretion. Upon the imposition, amendment, modification, supplemental and/or variation being posted by CIMB on the Website or being notified to the Client via the mail, notice of the same shall be deemed to have been effected at the time when the notice is posted on the Website and/or email notification or within three (3) days of mailing of the notice (as the case may be).
By the Client continuing to trade or give any order(s) for trade subsequent to the effective date of notice or continuing to maintain the Account with CIMB, the Client shall be deemed to have agreed to and accepted the new or amended, modified, supplemented and/or varied terms and conditions imposed by CIMB whereof these provisions shall be binding upon the Client from the date of posting. The relevant provisions of these terms and conditions shall thereafter be deemed to have been amended, modified, supplemented and/or varied accordingly and shall be read and construed as if such amendments, modification, supplements and/or variations had been incorporated in and had formed part of this Agreement at the time of execution hereof.
||In the event of any inconsistency between terms applicable generally and the specific accounts or services, the provisions which on interpretation are most favourable to CIMB shall prevail.