HDA TERMS OF SERVICE
These terms and conditions, as amended, supplemented or replaced from time to time, are a contract between the Customer and HydraX Digital Assets Pte. Ltd. (“HDA” or the “Company”) and govern the overall relationship between HDA and the Customer as well as all accounts and services provided by HDA to the Customer. By signing the Application Form or by electronically submitting your application on HDA’s Website, you confirm that you accept the terms of this Agreement.
Part A: General Terms and Conditions
The terms and conditions set out in this Part A apply to all accounts maintained with, and all services provided by, HDA. Certain of such accounts and services are subject to additional terms and conditions set out in Part B. In the event of any conflict or inconsistency between any term or condition in Part B with respect to the particular account or service, with any term or condition of Part A, the term or condition in Part B shall prevail to the extent of such conflict or inconsistency.
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires:
“Agreement” means this agreement (as may from time to time be varied or modified in accordance with its provisions) and includes its appendices, schedules and all other documents or instruments made supplemental to it including but not limited to the Customer’s Application Form(s), and all other documents, materials or information incorporated by reference into this Agreement, in each case as amended, supplemented or replaced from time to time;
“Account” means the account opened and/or maintained with HDA pursuant to the Customer’s application and/or request for such account;
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for the purposes of this definition, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the subject entity, whether by ownership or control of more than 50% of the voting interest of the subject entity, or otherwise;
“Application Form” means the application form whether in paper or electronic form as prescribed by HDA by which the Customer applies to HDA to open and maintain the Account;
“Applicable Laws” means all relevant or applicable statutes, laws, rules, regulations, directives, notices, guidelines and circulars whether of a governmental body, regulatory or other authority, market, exchange, clearing house or self-regulatory organisation in relation to which a party or a relevant Account, Service or Transaction is subject to, as may be amended or supplemented from time to time;
“Authorised Person” shall have the meaning ascribed to it in Clause 6.5;
“Business Day” means a day other than a Saturday, a Sunday or a public holiday in Singapore on which commercial banks are open for business in Singapore;
“Capital Markets Product” shall have the meaning ascribed to it in the SFA;
“Collective Investment Scheme” shall have the meaning ascribed to it in the SFA;
“Corporate Action” means:
(a) a subdivision, consolidation or reclassification of shares, or a free distribution of shares to existing holders by way of bonus, capitalisation or similar issue;
(b) a distribution to existing holders of the underlying security of additional shares, other share capital or securities granting the right to payment of dividends and/or proceeds of liquidation of the issuer equal proportionately with such payments to holders of the underlying shares, or securities, rights or warrants granting the right to a distribution of shares or to purchase, subscribe, or receive shares; or
(c) any event in respect of the shares or tokens analogous to any of the foregoing events or otherwise having a dilutive or concentrative effect on the market value of the shares or tokens;
“Customer” means the person or persons named in the Application Form as the applicant(s) for whom HDA maintains any Account(s) or provides any Services, and includes such person’s assignees, successors in title and agents;
“Customer Data” means all information (including Personal Data) relating to the Customer, and where applicable, the Customer’s directors, partners, employees, Authorised Persons, agents, shareholders and beneficial owners, the Customer’s investments, Transactions, Accounts, the Services utlised by the Customer and the Customer’s relationship with HDA, including customer information as defined in Applicable Laws;
“Default” shall have the meaning ascribed to it in Clause 14.1;
“Electronic Broking Facilities” means such electronic or automated order entry system, including any proprietary or third-party systems, software, hardware or telecommunications equipment provided or otherwise made available or may be offered by HDA to the Customer subject to the terms for the access and use of such system(s) for the Customer to:
(a) electronically transmit orders to HDA and/or a third party network;
(b) access market information, indicators and real time prices as well as information on the Customer’s Account(s) and other services available to the Customer; and
(c) engage in any other activities and services as HDA may include and permit access and/or use by the Customer as part of the Electronic Broking Facilities;
“Extraordinary Event” shall have the meaning ascribed to it in Clause 15.2;
“Futures Contract” with respect to a Transaction shall be as defined in the SFA and (where relevant) the jurisdiction in which the Transaction is executed;
“Information” means any text, images, links, sounds, graphics, video and other materials provided by or made accessible by HDA whether in physical or electronic form and includes, without limitation, information relating to Products, futures, markets, companies, industries, news and any information, data, analysis or research thereon subject, where so indicated or expressly stated, to such caveats, cautionary notices, restrictions, qualifications and/or disclaimers;
“Instructions” means a Customer’s instruction, request, application or order given to HDA to operate an Account or to execute a Transaction through such medium and in such manner as HDA may approve, and includes any instruction, request or order to revoke, ignore or vary any previous request or order in respect of a Transaction or Account;
“Intellectual Property Rights” includes all inventions, patents, know-how, trade secrets and other confidential information, copyright (including without limitation all such rights in computer software and any databases), registered and unregistered trademarks (including without limitation any trade, brand or business names and any distinctive smells or sounds used to differentiate goods and services), domain names, technology, know-how, goodwill, registered and unregistered designs, layout-designs of integrated circuits and geographical indications (in each case for the full period thereof and all extensions and renewals thereof), applications to register any of the aforesaid items (including the right to so apply), licences relating to any of the aforesaid items, rights in the nature of any of the aforesaid items in any country, and rights to sue for passing off, or other similar industrial or commercial right;
“Loss” means any and all realised or unrealised loss, damage, costs, charges, and/or expenses of whatsoever nature and howsoever arising including legal fees on a full indemnity basis, 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” means any currencies, cash, and at HDA’s sole discretion, securities or other properties which HDA will accept to be deposited with or held by HDA or its nominees as margin for the purposes of security or credit support for the effecting or maintenance of the same as an open position of any Transaction and/or the Customer’s obligations under this Agreement;
“Nominee” includes an agent, representative, delegate or correspondent whether in Singapore or elsewhere;
“Officer” means any director, officer, employee, representative or agent of HDA;
“Party” / “Parties” – means the Customer and HDA individually or collectively;
“PDPA” means the Personal Data Protection Act 2012 of Singapore;
“Person” includes any individual, government, statutory body, business, firm, partnership, corporation or unincorporated body;
“Personal Data” means data, whether true or not, about an individual who can be identified (a) from that data; or (b) from that data and other information to which a person has or is likely to have access;
“Product” means each type of financial instrument (including Capital Markets Products), investment contract, digital token or any other product offered under this Agreement;
“Related Assets” means all dividends, interest and other monies payable in respect of the Products and all other rights, benefits and proceeds in respect of or derived from the same (whether by way of redemption, bonus, preference, option, substitution, conversion or otherwise);
“Relevant Body” with respect to the regulated activities of HDA means any market, clearing house, regulatory authority, governmental body or authority or self-regulatory organisation having relevant oversight and/or regulatory jurisdiction with respect to HDA or any of its regulated activities;
“Relevant Currency” shall have the meaning ascribed to it in Clause 10.1;
“Services” means any and all services and/or facilities provided by or through HDA pursuant to this Agreement;
“SFA” means the Securities and Futures Act 2001 of Singapore;
“Securities” shall be as defined in the SFA, and shall, for the purposes of this Agreement, include units in Collective Investment Schemes;
“Transaction” includes transactions in Products or such other products as HDA may from time to time permit to be carried out under an Account; and
“Website” means HDA’s website at https://www.hydrax.io.
1.2 Headings to clauses are inserted for convenience only and shall not affect the construction of this Agreement;
1.3 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;
1.4 A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state, government or other legal entity and vice versa;
1.5 Except as otherwise provided in this Agreement, any reference in this Agreement to “Clause”, “Section”, “Part”, “Appendix”, and “Schedule” in this Agreement is to a clause, section, part, appendix and schedule respectively in this Agreement;
1.6 A reference to “include”, “includes” and “including” as they appear in this Agreement are not limiting and are deemed in each instance to be followed by the words “without limitation”; and
1.7 Any reference to a statutory provision shall include such provision as may from time to time be modified, amended or re-enacted so far as such modification, amendment or re-enactment applies or is capable of applying to any Transaction entered into hereunder.
2. SCOPE AND APPLICATION
The terms of this Agreement shall apply, as relevant, to the provision by HDA of its Services to the Customer and in respect of the Account(s) and all Transactions. The terms and conditions in Part A are supplemented by Part B. In the event of any conflict between the provisions of a Section in Part B and the provisions of Part A, the provisions of the Section in Part B relevant for the particular Product or Service shall prevail to the extent of such conflict. If any Product or Service is provided expressly subject to some other terms and conditions specified by HDA, those other terms and conditions shall supplement this Agreement in respect of such Product or Service, and in the event of any conflict between the other terms and conditions specified by HDA for such Product or Service and this Agreement, the other terms and conditions shall prevail.
3. CUSTOMER’S MONIES
3.1 The Customer agrees that in the event where payments are made prior to settlement of purchases or monies are otherwise received by HDA on account of the Customer, HDA shall deposit such amounts into a trust account.
3.2 The Customer acknowledges that funds of the Customer in the possession or control of HDA may be commingled with funds of other customers of HDA and HDA may place monies received on the Customer’s account in an omnibus customer trust account together with monies that HDA holds for other customers.
3.3 The Customer agrees to waive and relinquish in favour of HDA any and all entitlement to interest accruing to the Customer’s monies in any trust account, including without limitation, the omnibus trust account.
3.4 The Customer by applying to open an Account with HDA and being a customer of HDA and/or accessing or using any of the Services shall therefore be deemed to agree to (and HDA will and does materially rely on the effectiveness of such agreement) such waiver and relinquishment in Clause 3.3 above.
3.5 The Customer authorises and consents to HDA depositing or maintaining moneys and/or any other property received on account of the Customer which are denominated in a foreign currency in a trust or custody account with a custodian outside Singapore which is licensed, registered or authorised to conduct banking business or to act as a custodian, as the case may be, in that jurisdiction.
4. DELEGATION AND USE OF INTERMEDIARIES
4.1 HDA may use, engage or appoint, directly or indirectly, any person (including another broker, correspondent broker, dealer, market-maker, exchange, clearing house, bank, custodian or other third party) (“Intermediary”), whether in Singapore or elsewhere, whether or not associated with, connected to or related to HDA, to carry out any Instructions, execute or clear any Transaction, hold or custodise any of the Customer’s funds and assets, or exercise any authority granted to HDA by the Customer under this Agreement or otherwise. Such use, engagement or appointment of any Intermediary shall be upon such terms and conditions as HDA deems fit in its discretion.
4.2 If HDA has exercised reasonable care in its selection of the Intermediary, the Customer acknowledges, agrees and accepts that HDA has no liability or responsibility for any wrongdoing, act, omission, insolvency, negligence, breach of duty, misconduct, fraud, wilful default or any other failure or default by or in respect of an Intermediary (“Intermediary Default”), the Customer shall bear all risks arising from or consequent from or in relation to the acts or omissions or the Intermediary Default of such Intermediary, and the Customer shall indemnify, keep indemnified and hold harmless HDA from and against any and all Losses (including legal costs on a full indemnity basis) suffered or incurred by HDA whether directly or indirectly in relation to, arising out of or in connection with any act, or omission, or any Intermediary Default, of an Intermediary or such Intermediary’s officers, employees, agents or representatives.
4.3 The Customer further acknowledges and agrees that, where HDA uses, engages or appoints an Intermediary, HDA may have to accept sole and principal responsibility to the Intermediary for the executed Instructions and/or Transactions. This may be notwithstanding that, as between the Customer and HDA, HDA may in fact be the agent of the Customer, and accordingly the Customer shall indemnify, keep indemnified and hold harmless HDA from and against any and all actions taken by HDA in good faith in compliance with or performance of HDA’s said principal obligation or responsibility. In this connection, the Customer recognises that HDA may take such measures (including effecting payment and settlement in respect of the Customer’s executed Instructions) as may be necessary to ensure non-default of HDA’s own primary responsibility as aforesaid (notwithstanding that as between the Customer and HDA, the Customer is, or has notified HDA that it will be, in default).
4.4 In view of the fact that HDA may have accepted principal responsibility and/or liability to another Intermediary, the Customer also acknowledges that any cash or other property (which as between HDA and the Customer is to be regarded as that of the Customer, or purchased by or for the Customer) may or will be regarded by such Intermediary as being the cash or other property of HDA or purchased by HDA for itself. This may in some instances result in prejudice to the Customer.
4.5 Where the Customer’s assets are held in an omnibus or pooled account basis by an Intermediary or a depository which holds the Customer’s assets, the Customer acknowledges and accepts the risk that (a) the Customer’s assets could be withdrawn to meet other clients’ obligations; and/or (b) the Customer may share in any shortfall and may not receive full entitlement of assets. In some jurisdictions, national law may not recognise or give effect to HDA’s attempts to separately identify the Customer’s assets from HDA’s own assets or those belonging to the Intermediary or depository. In such a case, the Customer accepts the risk that (i) the Customer’s assets could be used to meet the Intermediary or depository’s general obligations on its insolvency; (ii) the Customer’s assets could be used to meet HDA’s general obligations on insolvency; (iii) the Intermediary or the depository could challenge the Customer’s rights to any assets; and/or (iv) the Customer may share in any shortfall and may not therefore receive full entitlement of assets.
4.6 The rights and remedies of HDA in this Clause will apply even though as between HDA and the Customer, the Customer may be in actual or anticipatory default.
5. GENERAL CONDITIONS
5.1 The Customer acknowledges, confirms and agrees that HDA does not give, and shall not at any time be regarded as giving or having given, advice or recommendation to the Customer on the merits of any Transaction and shall be regarded at all times as dealing with the Customer on an execution-only basis.
5.2 HDA or other third party service providers or licensors with whom it contracts for provision of or access to the same (each a “Service Provider”) may provide the Customer with Information in connection with the provision of the Services pursuant to this Agreement. The Customer agrees that:
(a) neither HDA nor any other Service Provider shall be responsible or liable if any such Information is inaccurate or incomplete in any respect or for any actions the Customer takes or do not take based on, or the Customer’s reliance upon, such Information;
(b) the Customer will use such Information solely for the purposes set out in this Agreement or otherwise expressly agreed to by HDA;
(c) the Customer will truthfully complete and submit to HDA in a timely fashion: (i) any declaration as HDA may require at any time in respect of its status as a user of Information; and (ii) any additional agreements with HDA or Service Providers or licensors relating to HDA’s provision to the Customer of or access to any Information;
(d) the Information is proprietary to HDA or the Service Provider and the Customer will not retransmit, redistribute, publish, disclose, alter, amend, rent, loan, license or display in whole or in part such data or information to any third party; and
(e) the Customer will pay any fees and other costs associated with its access to and use of any Information, which HDA may notify the Customer from time to time, and shall be responsible for payment of any and all taxes, duties, levies, charges or assessments imposed by any foreign or domestic national, state, provincial or local governmental bodies, or subdivisions thereof, and any penalties or interest relating thereto, in respect of its access to and use of any Information.
5.3 The Customer represents to and undertakes in favour of HDA that the Customer will access and use the facilities and Services offered or made available pursuant to this Agreement honestly, fairly and in good faith. The Customer also represents and undertakes that the Customer has not and will not upload or transmit any malicious code or software to any of the Electronic Broking Facilities, the Website or the website of any third party accessible via facilities provided to the Customer pursuant to this Agreement or otherwise use any electronic device, software, algorithm, and/or any dealing method or strategy that aims to manipulate any aspect of any of the Electronic Broking Facilities or Website.
5.4 The Customer authorises, consents and agrees to the disclosure by HDA and any of its Officers at any time and from time to time of any or all information in respect of any particulars or Transaction of the Customer or in respect of any Account to any of its Affiliates, any Relevant Body, or any other person which HDA or any of its Officers considers to be appropriate for the purpose or to be in the interest of HDA, and such Affiliate, Relevant Body or person may further use and/or disclose such information. The consent and authority granted by this Clause shall constitute consent and authority for the purposes of the provisions of any Applicable Laws.
5.5 The Customer acknowledges and agrees that HDA may engage or appoint any Person (who may not be an Officer or an Affiliate of HDA) including floor brokers and clearing brokers to carry out any Instruction or to exercise any authority granted by the Customer to HDA or any of its Officers (whether under this Agreement or otherwise). HDA shall not be liable for any and all Loss suffered or incurred by the Customer as a result of any act or omission of such Person or entity.
5.6 The Customer shall not, without the prior written consent of HDA, assign, charge or encumber any Account or the Customer’s rights therein, or create or permit to create, in favour of any Person (other than HDA) any interest by way of trust or otherwise in any Account. HDA shall not be required to recognise any Person other than the Customer as having any interest in any Account.
5.7 The Customer’s relationship with HDA hereunder, the opening, maintaining and operation of all Accounts, the provision of all Services, the implementation and execution of all Instructions, and the entry into and settlement of all Transactions, shall be subject at all times to Applicable Laws. HDA does not undertake any duty or obligation to ensure that any Transaction is suitable or recommended for the Customer, and shall not be regarded as making any recommendation or suitability representation to the Customer by reason only that HDA permitted the Customer to open an Account or to enter into any Transaction. Notwithstanding anything herein to the contrary:
(a) HDA may take or refrain from taking any action whatsoever; and
(b) the Customer shall do all things required (including the giving by the Customer of its full co-operation with any market, exchange or clearing house), in order for HDA to secure, procure or ensure for HDA’s benefit all compliance with Applicable Laws and HDA shall have no liability whatsoever to the Customer.
5.8 The Customer understands that HDA acts as the agent of the Customer in respect of all Transactions, except when HDA discloses to the Customer with respect to any particular Transaction that HDA acts as principal for HDA’s own account or as an agent for some other person. In order to avoid the need, on each occasion where there is the possibility of HDA acting as principal or counterparty for HDA’s own account or acting for the account of any person associated with or connected to HDA in respect of the Customer’s Instructions in respect of a Transaction, to seek the Customer’s prior consent before the Customer’s Instructions may be executed and so as to avoid at least any delay in execution and filling of such Instruction, the Customer hereby:
(a) consents to HDA, from time to time and at any time, acting as principal or counterparty for HDA’s own account or acting for the account of any person associated with or connected to HDA in respect of the Customer’s Instructions in respect of a Transaction; and
(b) waives any and all prior notice by HDA in respect of all such Transactions.
The consent and waiver of the Customer under this Clause 5.8 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 5 Business Days’ prior written notice by the Customer to HDA. For avoidance of doubt, HDA may, without assigning any reason therefor, refuse to act for the Customer in any particular Transaction.
Where HDA has (a) assumed the role of the counterparty to any Transaction which HDA has been given an Instruction 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, HDA need not inform the Customer whether any such Transaction of the Customer has been effected with HDA as the counterparty and HDA shall be absolutely entitled to all gains, profits and benefits derived from any such Transaction of the Customer entered into with HDA.
6. INSTRUCTIONS
6.1 The Customer may give Instructions to HDA to operate an Account or to execute a Transaction.
6.2 When giving Instructions, the Customer is solely responsible for ensuring the accuracy and completeness of all Instructions, and that the Customer does not give conflicting, inconsistent or contradictory Instructions to HDA. When placing contingent Instructions, such as “stop-loss” or “stop-limit” orders, the Customer acknowledges that such Instructions will not necessarily limit the Customer’s losses to the intended amounts as it may be impossible to act on or to execute such Instructions under certain market conditions. For over-the-counter Transactions, the Customer further acknowledges that the prices and characteristics of such Transactions are individually negotiated and there is no central source for obtaining prices and hence the prices for such Transactions may not be the best prices available to the Customer.
6.3 HDA is not obliged to act on any Instructions of the Customer or enter into any Transaction with the Customer for any reason and without giving any reason therefore and HDA shall not be responsible for or liable to the Customer whatsoever as a result of such refusal to act, including if:
(a) any Instructions are, in HDA’s opinion, unclear or ambiguous or inconsistent with any other Instructions;
(b) any Instructions might cause HDA to contravene any Applicable Laws (whether or not having legal and binding effect);
(c) HDA is unable to verify the identity of the Customer to its satisfaction;
(d) HDA has any doubt on the authenticity, clarity or completeness of the Instruction; or
(e) the form or content of such Instruction is not in accordance with the requirements or policies or practices as prescribed by HDA from time to time.
6.4 Notwithstanding the above, HDA may:
(a) act upon any Instruction which HDA believes to be given by the Customer without inquiry as to the identity or authority of the person giving or purporting to give such Instruction or the authenticity and correctness thereof or the purpose or propriety of any instruction;
(b) act on incomplete or unclear Instructions if HDA reasonably believes HDA can correct the information without seeking clarification or confirmation from the Customer, in accordance with any reasonable interpretation thereof which any Officer or any intermediary, believes in good faith to be the correct interpretation;
(c) if HDA receives conflicting, inconsistent, contradictory or multiple Instructions, determine which, if any, of the Instructions to act upon, and the sequence of acting without seeking clarification or confirmation from the Customer;
(d) at any time change or implement new security procedures or features relating to modes of Instructions, verifying the Customer’s identity or otherwise as HDA may think are necessary; and/or
(e) require confirmation of any Instruction from the Customer in any form or manner as it deems appropriate.
6.5 HDA shall not be responsible or liable for acting on any Instructions which HDA believes in good faith originates from the Customer or an Authorised Person regardless of whether such Instructions actually originated from the Customer or an Authorised Person, or even if HDA should have been put on notice that such Instructions did not originate from the Customer or an Authorised Person. The Customer will provide HDA with the names and specimen signature(s) of the person(s) authorised to give Instructions on the Customer’s behalf (“Authorised Persons”) in writing and give HDA prompt written notice of any changes thereto. Until HDA’s receipt of such notice, HDA may rely on the last list of Authorised Persons on HDA’s records. HDA may verify and satisfy itself as to the identity of the person purporting to give Instructions on behalf of the Customer or the source and origin of such Instructions and HDA may refuse to rely or act upon any such Instruction unless and until HDA is satisfied as to the matters on which HDA sought verification.
6.6 Transactions carried out by HDA acting on the Customer’s Instructions made or given or purporting to be made or given by the Customer or by any other person on behalf of the Customer shall be binding on the Customer for all purposes regardless of the circumstances prevailing or the nature of the Transaction or arrangement or the amount of money involved and notwithstanding any error or misunderstanding or lack of clarity in the terms of such Instructions or other communications. This is unless the Customer has given an Instruction to withdraw, cancel, revoke or vary a previous Instruction and (i) HDA has not in the interim executed such Instruction or taken irrevocable action for its execution (whether by onward instruction to an Intermediary to execute such Instruction or otherwise), (ii) HDA is able, with respect to such unexecuted Instruction to withdraw, cancel or revoke such Instruction before its execution or before irrevocable action is taken for its execution and has effectively done so and (iii) the withdrawal, cancellation, revocation or variation as the case may be, will not prejudice HDA’s position. Notwithstanding the foregoing, where, after a Transaction is carried out, HDA forms the belief that there was an error or misunderstanding or lack of clarity in the terms of such Instructions or other communications or an Authorised Person has acted in excess of his authority or the Transaction would infringe Applicable Laws, HDA may, in its sole and absolute discretion, withdraw, cancel, revoke or treat such Instruction as void from the outset or otherwise, and HDA shall not be responsible or liable for any Loss arising from such actions.
6.7 In the event that HDA decides to act on any Instruction or is otherwise under an obligation to act on any Instruction, HDA shall be allowed such amount of time to act and implement any Instruction as may be reasonable having regard to the systems and operations of HDA, the day and time the Instruction was received, and any circumstances then prevailing. HDA shall not be responsible or liable for any Loss arising from any delay on the part of HDA in acting on any such Instruction.
6.8 Where HDA has executed any Transaction or Transactions on behalf of the Customer in accordance with an Instruction, the Customer shall bear full responsibility for any filing, registration, notification or other compliance or relevant requirements in respect of such Transactions (including any notification to a stock exchange or regulatory body in respect of any position limits, substantial shareholding or any connected or related party transaction). HDA shall have no obligation whatsoever to issue any notification, warning or advice to the Customer in this respect.
6.9 HDA may record, by any means and at any time, any communications through any medium between HDA and the Customer or any representative or agent of the Customer using any recording apparatus. Any such recording may be used in evidence against the Customer. HDA’s record of any such Instructions shall be conclusive and binding on the Customer. HDA 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. No adverse inferences shall be drawn against HDA 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.
6.10 The Customer hereby irrevocably authorises HDA and its Officers to act in accordance with the Customer’s Instructions given by telephone or any form of electronic communication including electronic mail and internet messaging services by the Customer and/or persons authorised in writing by the Customer from time to time. The Customer acknowledges and confirms that the Customer is aware that Instructions communicated by telephone or any form of electronic communication including electronic mail and internet messaging services may not be secure or received properly or may not be read by the intended recipient and may be read by or be known to unauthorised persons. The Customer agrees to assume and bear all the risks involved in respect of such errors and misunderstanding and HDA shall not be responsible in any way for the same or breach of confidentiality thereto and shall also not be liable for any Loss arising therefrom.
6.11 The Customer accepts full responsibility for the monitoring of its Instructions 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 its 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.
7. ORDERS AND TRANSACTIONS
7.1 The Customer may instruct HDA to execute any Transaction for an Account by placing an order with or for the account or responsibility of HDA in the form and using the media prescribed by HDA from time to time and subject to the terms for such transmission/placement of the order. In transmitting or placing such order, the Customer hereby acknowledges and expressly agrees that HDA may in its sole and absolute discretion act either as agent of or principal to the Customer for its own accounts or for the accounts of Persons associated with or connected to HDA or its Affiliates or any of its Officers having a direct or indirect interest. In the event that HDA assumes the role of the counterparty to any Transaction which HDA has been instructed to execute, HDA shall be absolutely entitled to all gains, profits and benefits derived from any such Transaction of the Customer with HDA. HDA may do whatever HDA considers necessary or appropriate to ensure its own and the Customer’s compliance with Applicable Laws and the Transaction so executed shall not be voidable at the option of the Customer.
7.2 The Customer acknowledges that in the event the Customer is, for any reason, unable to communicate any order to or for the account and responsibility of HDA, HDA shall not be liable to the Customer.
7.3 HDA shall bear no liability whatsoever for exercising or failing to exercise any discretion, power or authority conferred upon HDA by this Agreement so long as HDA acted in good faith.
7.4 Without prejudice to any other rights of HDA under this Agreement, and in case of a dispute between the Parties over any Transaction, HDA is entitled, at its sole discretion and without notice, to close the position(s) relating to the Transaction if HDA believes in good faith such action to be desirable for the purpose of mitigating or limiting the potential loss or damages to either party involved in the dispute. HDA shall not, in such event, be responsible or obligated to the Customer for any Losses arising from such aforementioned closure of Customer’s position(s) and/or subsequent fluctuations in the price level of the erstwhile position(s). Where HDA closes the Customer’s position(s), the closing shall be without prejudice to the Customer’s rights to open new positions provided that such new positions are opened in accordance with the terms of this Agreement, including for Margins after accounting for Loss, if any, from such closing out.
7.5 The Customer acknowledges and agrees that while an order is a binding offer from it to enter into a Transaction, prices quoted or given by HDA (whether on/via any Electronic Broking Facility, by telephone or otherwise) do not constitute a contractual offer to enter into a Transaction at the prices quoted/given or at all.
7.6 Where an order is executed through several Transactions at varying prices, the Customer may be charged separate fees and commission for each individual Transaction.
7.7 If multiple orders are placed or triggered, which in aggregate exceed its own position limits for the relevant market, HDA may in its sole discretion take any of the following action: (a) refuse to execute all, some or any of the orders; and/or (b) partially fill the orders.
7.8 If any Instruction is accepted and executed in circumstances where the Customer would be in breach of this Agreement or by reference to any event described in Clause 23 below is an order that HDA believes in good faith to be voidable or an order that it would not have accepted if it had knowledge of the said event occurring, HDA may following its knowledge of the breach or relevant event treat the executed order as void or close the open position at the price prevailing at the time it closes such open position. The Customer shall in any event be liable for all Losses from such closing out.
7.9 HDA may refuse to accept any Instruction given by the Customer in any medium whatsoever and whether in respect of the Account or any Product or Transaction. HDA shall not be liable for any Losses suffered by the Customer as a result of such refusal.
7.10 HDA has the right to liquidate any or all of the Products and Transactions in an Account without notice to the Customer and to apply any proceeds therefrom against any amount owed to HDA, including if the Customer does not pay for any Products which it purchases or settle any other Transaction with respect to Products by the due date of the purchase contract, and HDA may demand any shortfall after exercising all of its rights under this Agreement, including under this Clause. HDA may but is not obliged to exercise this right on any day after the day on which the right to liquidate first arose.
7.11 HDA shall not be responsible for or liable to the Customer with respect to purchase Transactions relating to Products which the Customer has defaulted on for any Loss suffered by the Customer as a result of any fall in the market price of the Products between the first day the right to liquidate arose and the day it actually sells such Products.
7.12 HDA may in its sole and absolute discretion without giving any reason and without notice to the Customer at any time and from time to time impose any trading or Transaction restrictions or any limits upon the Customer, including position limits, Transaction limits and limits on contract size in respect of any Account, and the Customer shall not breach or exceed such restrictions and limits. Any limits and restrictions imposed by HDA may be varied by HDA from time to time and without prior notice to the Customer. No previous limit or restriction shall set a precedent or bind HDA. HDA may impose stricter limits than any regulatory imposed limits and the Customer shall be obliged to comply with the limits imposed by HDA.
8. DEPOSITS AND PAYMENTS
8.1 The Customer shall at all times maintain sufficient funds in the Account for the purpose of effecting any Instruction (including funds for paying any commission, fees, costs and other charges which the Customer may be liable for), and where applicable, maintain such Margins with respect to the Customer’s Transactions as may be prescribed by HDA. If at any time there are insufficient funds in the Account to carry out any Instruction or the Margin maintained in the Account falls below the minimum amount prescribed by HDA, HDA may, without any liability or responsibility to the Customer, at its absolute discretion, do one or more of the following:
(a) decline to accept or act on any Instruction;
(b) force sell or liquidate any or all Products;
(c) close out or liquidate any or all of the Customer’s open positions with respect to Transactions executed;
(d) require the Customer to deposit with HDA such additional funds immediately on demand;
(e) transfer the necessary funds from any other Account of the Customer with HDA; or
(f) advance the necessary funds to the Customer for the purpose of effecting any Instruction and to debit the Account with the amount of that advance.
The Customer acknowledges and agrees that HDA is entitled at its discretion to discount the market value of, reject and/or accept in whole or to any degree as it may determine to be appropriate securities/collateral/margin or other property offered and/or provided by the Customer towards satisfaction of the required Margin even where such securities/collateral/margin or other property qualify to be provided as margins for the purposes of Applicable Laws or the requirements of relevant markets. HDA may modify such Margin requirements for open and new positions at any time, in its sole and absolute discretion. HDA may reject any order if the Customer does not have a sufficient account balance to meet Margin requirements and may delay the processing of any order while determining the correct margin status of the Customer’s Account(s).
8.2 HDA is entitled, when it deems necessary at its sole and absolute discretion, to require the Customer to place cash and/or other property as deposit or prepayment (which shall not bear interest). HDA is entitled at its sole and absolute discretion to determine the amount of deposit or prepayment payable by the Customer and the time and manner for the placement and nature of such deposit or prepayment. Without prejudice to HDA’s other rights and powers, HDA shall be entitled to apply the said deposit or prepayment or any part thereof towards payment of any indebtedness owing by the Customer to HDA arising from any Account, any Transaction or any of the Services.
8.3 The Customer shall promptly pay HDA, as and when monies are due to HDA or upon HDA’s demand in all other cases, all commissions, fees, costs, charges, monies, deposits, prepayments and/or liabilities (whether charged by HDA, its Nominees, Affiliates or any third parties, or any other person) owing by the Customer to HDA or its Nominees referable to any Account, any Transaction or any of the Services (whether charged to, payable by or paid by the Customer or HDA) at such rate or rates as HDA may from time to time determine. HDA reserves its rights to vary or modify the prevailing rate of charges or fees without notice. If the Customer continues to make use of the Services, the Customer shall be deemed to have agreed to such revised rate or charges or fees without reservation. To the extent that HDA has paid the same on the Customer’s behalf to any of its Nominees or Intermediaries, the Customer shall forthwith reimburse the same in full to HDA upon demand by HDA.
8.4 All interest, fees, commissions and other charges of HDA 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. HDA shall be fully entitled to debit any Account of the Customer in respect of any and all payments due to HDA at such time and in such manner as HDA may determine.
8.5 All payments to HDA 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 any deductions or withholdings, then the amount due to HDA shall be increased by such amount as shall result in HDA receiving an amount equal to the amount HDA should have received in the absence of such deduction or withholding. Any taxes, duties, disbursements, costs and/or other expenses incurred by HDA in connection with the Account, Transactions, Products, Services or otherwise in connection with the Customer shall be reimbursed in full by the Customer.
8.6 The Customer acknowledges that any deposits made into the Account may be debited and used to secure and satisfy the Customer’s obligations under any Transaction or any matter in connection with this Agreement as well as for such other purposes as Applicable Laws may permit or stipulate.
8.7 The Customer acknowledges that HDA has the right to charge interest on any and all amount(s) or payments due from the Customer to HDA at such rate and calculated and/or compounded in such manner as HDA may determine to be appropriate. The Customer shall pay such interest to HDA, and in the event of litigation such interest shall be payable to HDA both before as well as after judgment. The Customer agrees that HDA shall be entitled to debit any Account(s) in respect of the interest due. Where the Customer enters into Transactions in a foreign currency, the funds the Customer deposits as margin in the Relevant Currency do not automatically go towards meeting the Margin Requirements of the foreign currency positions unless expressly and specifically so deposited and hence the Customer may be charged interest on any deficit in the foreign currency open position(s) notwithstanding that the Customer may have an overall positive net equity in the Account.
8.8 If HDA advances any funds to the Customer, the Customer must pay interest on the amount advanced at the rate prescribed and calculated in accordance with HDA’s procedures and requirements, and the Customer shall immediately pay the debit balance on the Account on demand, failing which HDA shall be entitled to charge default interest at the rate prescribed and calculated in accordance with HDA’s procedures and requirements.
8.9 Any and all payments to be made by HDA to the Customer shall be made in such manner as HDA 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 HDA.
8.10 If for any reason HDA cannot effect payment or repayment to the Customer in a particular currency in which payment or repayment is due, HDA may effect payment or repayment in the equivalent in any other currency selected by HDA based on the rate of exchange quoted by HDA in respect thereof at the relevant time.
8.11 Unless HDA otherwise agrees with the Customer, each obligation of HDA to make any payment to the Customer under this Agreement is subject to the condition precedent that there is no Default or potential Default subsisting.
9. MARGIN REQUIREMENTS
9.1 Without prejudice or detracting from Clause 8.1 above and with regard to margin maintenance requirements, HDA, while not obliged to do so, may issue a “Margin Call” (a request for the immediate deposit of additional collateral) if the equity in a Customer’s relevant Account drops below the threshold mark to market value of the Customer’s open positions as determined by HDA (“Threshold Equity Level”). In some situations, such as (but not limited to) concentrated positions, low-priced stocks or volatile contracts, HDA may require substantially greater collateral than normal initial or maintenance requirements. HDA reserves the right to calculate the foregoing on an intra-day basis. Margin Calls, if made, may be issued in writing, via telephone, electronically, or by other means of communication and the Customer agrees to promptly satisfy all Margin Calls within twenty-four (24) hours, or in times of extreme price volatility, immediately as it becomes due (or such other period as may be directed by HDA), but at all times, not exceeding any period pursuant to the Applicable Laws (including, but not limited to the Securities and Futures (Financial and Margin Requirements for Holders of Capital Markets Services Licences) Regulations), within which a Margin Call needs to be fulfilled, by depositing with HDA such funds or other collateral in such form and manner as may be required by HDA. In some situations, such as during volatile market conditions, HDA may not in any event immediately issue a Margin Call when a Customer’s relevant Account equity falls below the Threshold Equity Level. The Customer shall not have a right to an extension of time with regards to Margin Calls. Without prejudice to the foregoing, if HDA grants any such extension of time for Margin Calls in its discretion, then unless HDA expressly states in writing that such extension of time is intended to override or prevail over HDA’s rights under this Clause 9, such extension of time shall be deemed to have been granted subject always to HDA’s rights under this Clause 9. HDA reserves the right to amend the Threshold Equity Level without notice to the Customer. No Margin Call relieves the Customer from the Customer’s obligation to have proactively provided such Margin or is to imply any waiver or binding legal indulgence on the part of HDA in favour of the Customer. Without prejudice to the Customer’s sole responsibility to proactively provide or ensure the continuing provision of required Margin(s), the Customer is responsible in any event for acting immediately on any Margin Calls, liquidation, buy-in or sell-out notices given orally or in writing. The Customer’s failure to promptly deposit additional money or securities in response to a Margin Call, even if the equity level in the Customer’s Margin Account may be in compliance with erstwhile Margin requirement(s), may result in the liquidation of part or all of the collateral in such Account as part of or as a consequence of the liquidation or close-out of open positions no longer supported by required Margin amounts. Although HDA will generally attempt to notify the Customer of a Margin Call and give the Customer an opportunity to deposit additional equity to maintain an affected open position(s), such acts is not an obligation nor a precondition of the Customer being obliged to pay/provide additional Margin, HDA reserves the right to institute immediate discretionary liquidation and/or realization of any and all open positions of the Customer and Margins/collateral provided without prior notice and without giving the Customer the opportunity to deposit additional equity. This sole and absolute discretion applies regardless of any historical pattern of delivering verbal/written notices, or of any current verbal/written representations by HDA that indicate a different dollar amount/liquidation time or suggest additional time based on due date or reasonableness required to furnish additional margins. This sole and absolute discretion to liquidate immediately applies regardless of time zone differentials, language interpretations or delays in wiring funds, and includes the sole and absolute discretion to choose which position to liquidate and in what order. It is and remains at all times the Customer’s responsibility to monitor and liquidate positions to minimize the Customer’s Losses before HDA is forced in its discretion and good faith judgment to liquidate the Customer’s open positions to protect the interests of HDA and/or its other Customers and/or the exchange on which the Customer’s open positions is/are held. HDA in any event reserves the right in its sole and absolute discretion to close out any positions for any Account that represents a negative liquidation value where it believes in good faith that this is appropriate for the protection of its interests.
9.2 The Customer also understands and agrees that notwithstanding any Margin Call made by HDA, HDA may at any time exercise its rights to close out/liquidate as set out in Clause 9.1 and/or Clause 14 (Default) on and following the occurrence of any relevant event of Default (including the Customer’s failure to proactively provide or ensure the continued provision/maintenance of minimum Margin requirement(s)).
9.3 The Customer acknowledges and agrees that the Margin may be held and used to secure the performance of the Customer’s obligations as well as for such other purposes as Applicable Laws may permit or stipulate for the Transactions traded.
9.4 All Margin shall, in any event, be held by HDA as it in its discretion deems fit, 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 HDA for any and all of the Customer’s liabilities, whether contingent or actual, under this Agreement or otherwise, and HDA may realise any of the Margin of the Customer as provided for in this Agreement.
9.5 All Margin and its value shall be in such form as stipulated and shall be determined by HDA, in its sole and absolute discretion. To the maximum extent permitted by Applicable Laws, HDA shall be entitled to deposit, invest, loan, mortgage, charge, pledge, repledge, hypothecate or otherwise deal with any Margin in whatever form provided to HDA or any Relevant Body in such manner as may be permitted under the Applicable Laws, and shall not be under any obligation to account to the Customer for any interest, income or benefit that may be derived therefrom. No interest shall be paid on any type of Margin deposited by the Customer with HDA and the Customer acknowledges and consents that interest earned on the Margin deposited under this Agreement may be retained by HDA for its own account and benefit. HDA shall be entitled to charge interest on any sum due from the Customer in request of any Margin requirements at such rate and calculated and/or compounded in such manner as HDA may impose and determine from time to time in the sole and absolute discretion of HDA. HDA shall at no time be required to deliver to the Customer the identical property delivered to or purchased by HDA as Margin for the Account(s) but only property of substantially the same kind and amount, subject to adjustments for quantity and quality variations at the market price prevailing at the time of such delivery.
9.6 Without prejudice to the generality of Clause 9.5, the Customer hereby expressly agrees that HDA may deposit any Margin of the Customer which has not been title transferred to HDA in any of the following ways:
(a) with such custodian as HDA may, in its sole and absolute discretion, appoint including, where such Margin is denominated in a foreign currency, a custodian outside Singapore. Where such Margin is so deposited, the Customer acknowledges and accepts that different settlement, legal and regulatory requirements and different practices relating to the segregation of the Margin may apply. The Customer further agrees that HDA may co- mingle such Margin with the cash and properties of its other customers; and/or
(b) with a clearing house, a member of a futures exchange (whether overseas or otherwise) for such purposes as may be permitted under the Applicable Laws or the business rules and practices of the clearing house or futures exchange (as the case may be).
Where Margin of the Customer is permitted by Applicable Laws to be and is provided to HDA by way of title transfer collateral or margin, the Customer is expressly notified and confirms that in respect of such Margin, all rights, title and interest in and to it shall pass from the Customer by way of outright title transfer, free and clear of any liens, claims, charges or encumbrances or any other interest of the Customer or any other party. As such HDA shall have the right to deal with, lend, dispose of, pledge, charge or otherwise use the Margin as it deems fit.
Where Margin is provided on a title transfer basis, HDA shall be obliged to redeliver equivalent collateral to the Customer’s account on satisfaction of the Customers’ obligations to HDA. The Customer also acknowledges and agrees that notwithstanding any contrary provision agreed between the Parties that in the event of the Customer’s insolvency, HDA has the right at its option to convert any obligation it may otherwise have to return the Customer’s non-cash assets provided as Margin into an obligation instead to pay the aggregate market value for the same, and to subject such converted payment obligation to its general right of set-off (in addition to any other rights of set-off and/or consolidation of accounts or obligations it may have at law or in contract).
9.7 The Customer shall at its own cost and at HDA’s request, execute and do all such deeds, acts and things (including without limitation, the performance of such further acts or the execution and delivery of any additional instruments or documents) as HDA may require for the purposes of this Agreement, including but not limited to perfecting its rights to the Margin provided by the Customer.
9.8 For so long as the Customer owes money or obligation (of whatsoever nature and howsoever arising) to HDA, the Customer shall only withdraw Margin with the consent of HDA. HDA may at any time withhold any Margin of the Customer pending full settlement of all such money or obligation.
9.9 In addition and without prejudice to any right which HDA may have under law or otherwise, HDA may in its sole and absolute discretion at any time and from time to time without notice to the Customer apply and/or set-off any Margin standing to the credit of the Customer (whether on any Account held with HDA or its Affiliates, or otherwise) against all moneys and/or other liabilities of the Customer due, owing or incurred on any Account, whether held with HDA or its Affiliates, or otherwise, in any manner and whether actual or contingent, joint or several.
10. FOREIGN CURRENCY TRANSACTIONS
10.1 If the Customer directs HDA to enter into a Transaction and such Transaction is effected in a foreign currency:
(a) any profit or Loss resulting from exchange rate fluctuations of such currency will be at the Customer’s sole risk; and
(b) HDA may debt or credit the Customer’s Account in such foreign currency (the “Relevant Currency”) when such Transaction is liquidated, and the rate of exchange of the Relevant Currency shall be determined by HDA in its discretion on the basis of the rates of exchange prevailing at the time of the debit or credit.
10.2 HDA may (and therefore is not obliged to), at any time in its sole and absolute discretion, convert any amounts in any Account(s) of the Customer’s denominated in a currency other than a Relevant Currency or otherwise standing to the credit of the Customer to any Relevant Currency for the purposes of carrying out Instructions of the Customer for Transactions in the Relevant Currency/Currencies or exercising its rights under these terms and conditions or under any Account. Exchange rate losses and the costs of conversion shall be borne by the Customer. For the avoidance of doubt, the Customer acknowledges and agrees that any amounts in any Account(s) denominated in a currency other than a Relevant Currency or otherwise standing to the credit of the Customer are not, unless HDA actually exercises its discretion of currency conversion and application as margin in any Relevant Currency, taken into account in calculation of the margin provided or to be provided by the Customer for the Customer’s orders and Transactions in any Relevant Currency. HDA may charge interest on any deficit in the foreign currency open position(s) notwithstanding that the Customer may have an overall positive net equity in the Account.
10.3 HDA reserves the right, but is not obliged, to convert without prior notice to the Customer cash or credit balance in favour of the Customer denominated in any currency other than a Relevant Currency deposited by the Customer, in order to avoid the incurrence of further interest charges arising from a deficit of the Customer’s payment obligation in such Relevant Currency. The Customer also agrees HDA shall have no liability whatsoever in the event that HDA exercises its sole and absolute discretion not to perform such aforementioned currency conversion.
11. LIQUIDATION INSTRUCTIONS
11.1 The Customer shall for any open position of any Futures Contract which involves physical settlement:
(a) give instructions to liquidate such open position to HDA; or
(b) subject to HDA informing the Customer that it supports the physical settlement of such Futures Contract, provide HDA with sufficient funds in respect of the Account to which such open position relates, and with the necessary delivery documents to take delivery of the underlying subject matter of the Futures Contract, not later than 7 Business Days prior to the first notice day for long positions, and not later than 7 Business Days prior to the last trading day for short positions.
11.2 If the Customer fails to comply with Clause 11.1, HDA may:
(a) liquidate such open position;
(b) make or receive delivery of the underlying subject matter of the Futures Contract on the Customer’s behalf upon such terms and by such methods which HDA deems fit; and/or
(c) take any of the actions described in Clause 14.5.
11.3 If the Customer fails to deliver by the stipulated delivery date any commodity which the Customer has instructed HDA to sell, HDA shall, in its sole and absolute discretion, without giving notice to the Customer, borrow any commodity necessary to make such delivery on the Customer’s behalf, and the Customer shall indemnify HDA against any Loss which HDA may sustain in effecting the delivery and shall indemnify HDA for such Loss upon its demand.
12. JOINT ACCOUNTS
12.1 If an Account is opened or maintained in the name of more than one Person or a partnership:
(a) the term “Customer” shall refer to each Person or partner jointly and severally, and the liability of each such Person or partner to HDA shall be joint and several;
(b) HDA shall be entitled to debit that Account at any time in respect of any sum howsoever due or owed by any of the Persons in whose name the Account is opened or maintained or constituting the Customer;
(c) the delivery of any monies, instruments and any other property in relation to the Account(s) and/or the Transactions may be made by HDA upon the Instructions of any one of such Persons and such delivery shall constitute full and complete delivery by HDA and shall without limitation be deemed to be sufficient delivery to all the joint account holders constituting the Customer and all the joint account holders constituting the Customer shall be deemed to have received the same; and
(d) in the absence of express Instructions as to which one of the joint account holders to deliver any monies, instruments and any other property in relation to the Account(s) and/or the Transactions to, the delivery by HDA to any one of the joint account holders constituting the Customer shall be deemed to be sufficient delivery to all the joint account holders constituting the Customer and all the joint account holders constituting the Customer shall be deemed to have received the same.
No joint account holder constituting the Customer shall be discharged, nor shall his liability be affected by, any discharge, release, time, indulgence, concession, waiver or consent given at any time in relation to any one or more of the other joint account holders constituting the Customer.
12.2 Unless otherwise agreed by HDA, the Instructions of any one joint account holder constituting the Customer shall be deemed to be the Instructions of all the joint account holders constituting the Customer and binding upon all the other joint account holders.
12.3 Any notice or communication addressed and sent by HDA to any one joint account holder constituting the Customer shall be deemed to have been addressed and sent to all the joint account holders constituting the Customer and shall be binding on all joint account holders notwithstanding that they have not been sent to or received by all of the joint account holders. Where any joint account holder shall have received or is deemed to have received any such notice or communication, all the joint account holders constituting the Customer shall be deemed to have received the same.
12.4 Where the Customer does not specify the signing requirement of any Joint Account, a single signature of any one of the Joint Account holders shall suffice for the operation of the Account.
12.5 The doctrine of survivorship shall apply to any Account opened in the joint names of more than one Person or in the name of a partnership. Accordingly, in the event of the death of such Person or any partner constituting the Customer, the Account shall immediately vest in the surviving Person(s) or partner(s) (as the case may be). In the event of death, bankruptcy or liquidation or mental or other incapacity of one or more such Joint Account holders, HDA shall have the right to set off any claims HDA has or may have against such Person(s) howsoever incurred against any credit balance in any Account as if termination has occurred.
12.6 Upon the termination of a joint account, HDA shall have the same rights as to any Account in termination. In addition, HDA may discharge its entire liability in respect of any credit balance or Products in the joint account to any one of the joint account holders, in such currency and at such rate of exchange as HDA may determine in its discretion, and none of the joint account holders will have any further rights against HDA upon such discharge.
13. OMNIBUS ACCOUNT
All omnibus accounts (which HDA may agree to open for the Customer) shall be subject to all Applicable Laws. The Customer holding an omnibus account with HDA 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 HDA all information as HDA may require under any Applicable Laws.
14. DEFAULT
14.1 A “Default” shall be deemed to occur if:
(a) the Customer fails to fulfil in full his/its payment obligations due to HDA;
(b) the Customer fails to comply with any of his/its obligations under this Agreement, the Application Form or under any Account, Transaction or Service;
(c) any person (whether one or more individuals or sole proprietorships or any partner of a partnership) constituting the Customer dies, becomes bankrupt, of unsound mind, unable to pay his debts as they fall due or has an action commenced against him to place him in bankruptcy, or if an action is commenced to dissolve and/or alter the partners or the constitution of the Customer (where the Customer is a partnership);
(d) where the Customer is a corporation or any other body corporate, where the Customer becomes unable to pay its debts as they fall due or, or any action or step is commenced or any resolution is passed to place the Customer in liquidation, winding up, insolvency, judicial management, receivership, administrative management or any similar or analogous proceedings;
(e) the Customer (or where the Customer comprises two or more persons or where the Account is a joint account, any such person) makes any arrangement or composition with his creditors;
(f) HDA is of the opinion that the financial condition of the Customer or of any Person guaranteeing the Account(s) of the Customer has materially or adversely changed since the date of this Agreement or the date on which the Account(s) was opened, whichever is earlier;
(g) any claim, action or proceeding of any nature is commenced against the Customer (or where the customer comprises two or more persons or where the Account is a joint account, any such person), or steps are taken by any Person to enforce any security against the Customer (or where the Customer comprises two or more persons or where the Account is a joint account, any such person);
(h) any representation, warranty and/or undertaking made by the Customer, is or subsequently becomes incorrect, false or misleading;
(i) if HDA becomes aware of suspicious or reasonably possible fraudulent or unauthorised Account activity;
(j) HDA has, for more than 2 consecutive Business Days, been unable to establish direct contact with the Customer;
(k) HDA forms the view, in good faith, that it should take action in order to preserve its rights or interests with respect to any Account, Instruction, Transaction or its contractual relationship with the Customer; or
(l) a default, event of default or other similar condition or event (however described) occurs in respect of the Customer (or where the Customer comprises two or more persons or where the Account is a joint account, any such person) or any affiliate of the Customer under one or more agreements of any of them (individually or collectively) with HDA.
14.2 All acts performed by HDA and/or the Intermediaries prior to receiving written notice of the Customer’s death, incapacity or incapability (if a natural person) shall be valid and binding upon the Customer and the Customer’s successors in title. In the event of the Customer’s death, HDA shall be absolutely protected in acting under this Agreement until HDA receives actual notice of death from the legal personal representatives or executors of the Customer. The legal personal representatives or executors will be recognised by HDA as having the sole authority to act under this Agreement on behalf of the deceased Customer.
14.3 The Customer shall immediately notify HDA if any Default occurs, or if a Default or potential Default is likely to occur.
14.4 Upon the suspension or closure of an Account, no further transactions for that Account may be initiated by the Customer.
14.5 Without prejudice to any other right of HDA hereunder or otherwise at law, in the event of Default, HDA may (but is not obliged to) immediately or at any time thereafter, do any one or more of the following without having to give prior notice to the Customer:
(a) suspend (indefinitely or otherwise) or terminate any Account belonging to the Customer, or HDA’s relationship with the Customer and accelerate any and all liabilities of the Customer to HDA so that they shall become immediately due and payable;
(b) terminate any outstanding Transactions, and/or hedge and/or close-out all or any outstanding Transaction (including any Transaction which has yet to be settled on the date on which HDA terminates such Transaction) or position by determining its value as of the date of the close-out as soon as practicable after the close-out;
(c) cancel or complete any outstanding Instructions or other commitments made on behalf of the Customer for the purchase or sale of any property or for any Transaction or Account;
(d) liquidate the Margin or part thereof at a price which HDA deems appropriate in the circumstances;
(e) satisfy any of the Customer’s obligations due to it (either directly or by way of guarantee or suretyship) from any cash or other property of the Customer in HDA’s custody or control;
(f) sell any or all of the Products, Futures Contracts and/or the underlying subject matter of the Futures Contracts long in the Account(s) and/or buy any or all Products, Futures Contracts and/or the underlying subject matter of the Futures Contracts which may be short in the Account(s) on the market in any manner and at any time;
(g) sell any or all Products, collateral and any property outstanding held in any and every Account or in custody and thereafter apply the net proceeds of sale (after deducting for HDA’s costs and expenses in connection with such sale) towards settlement of all monies owing by the Customer to HDA or any of its Affiliates or apply any amounts standing to the credit of the Customer against any amounts which the Customer owes to HDA (of whatsoever nature, and howsoever arising, including any contingent amounts) or generally to exercise HDA’s right of set-off against the Customer;
(h) apply any amounts of whatsoever nature standing to the credit of the Customer against any amounts which the Customer owes to HDA (of whatsoever nature and howsoever arising, including any contingent amounts), or generally to exercise its right of set-off against the Customer;
(i) net or set off some or all positions in the Accounts;
(j) combine two or more of the Accounts;
(k) take delivery under any of the positions in the Accounts;
(l) hedge and/or enter into off-setting or other Transactions in order to establish a spread or straddle to protect against any risk of Loss in respect of such positions;
(m) borrow or purchase or otherwise procure any such property being the subject matter of any sale and making delivery under such sale;
(n) call upon any security including but not limited to any guarantees and letters of credit which may have been issued to or in favour of HDA as security for the Accounts;
(o) demand any shortfall, after taking any one or more of the above steps, from the Customer, hold any excess pending full settlement of any other obligations of the Customer, or pay any excess to the Customer by such means as HDA may decide to the last known address of the Customer; and/or
(p) exercise such other authority and powers that may have been conferred upon HDA by this Agreement, including the right to call upon, sell, dispose or realise any of the security.
15. ADJUSTMENT UPON EXTRAORDINARY EVENTS
15.1 If there occurs in relation to any Transaction or otherwise in relation to an Account an Extraordinary Event, HDA shall have the sole and absolute discretion to determine any adjustments or action necessary in relation to such Transaction or any or all Transactions or otherwise to an Account or Accounts in view of the Extraordinary Event. Such adjustments or actions may include altering or varying the quantities of currencies or financial instruments or the exchange rates or specifications of currencies or instruments bought or sold in respect of such Transaction or some or all Transactions, or terminating the Transaction in question or some or all Transactions, or an Account or Accounts or otherwise. Provided HDA undertakes such adjustment and/or action in good faith, any such adjustment or action shall be binding on the Customer who shall be liable for any additional Loss incurred by HDA on the account of the Customer or which the Customer is consequently liable for as a result of such adjustment or action.
15.2 An “Extraordinary Event” shall mean any event which HDA in good faith believes to have a material adverse effect on any Transaction and shall include without limitation, any material disruption to the price source set out in the terms for any Transaction or in a relevant reference market has occurred (each such event a “Market Disruption Event“), 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 HDA’s good faith opinion adversely alters or changes the rights or obligations which HDA in good faith undertook upon the establishment of such Transaction.
16. TERMINATION
16.1 Without prejudice to Clause 14, HDA may terminate any Account by giving at least 5 days’ prior notice in writing to the Customer. Unless otherwise agreed in writing between HDA and the Customer, the Customer may terminate any Account by giving 2 months’ prior notice in writing to HDA. Prior to the date of the termination of any Account, the Customer shall instruct HDA as to the proper disposal or transfer of money and other properties of the Customer. If the Customer fails to do so, HDA may exercise any of its rights under Clause 14.5 above as if Default had occurred.
16.2 Without prejudice to any other provision in Clauses 14 and 16, HDA may suspend or terminate any Account at any time without rendering any reasons whatsoever and without notice in writing.
16.3 The Customer remains liable for any outstanding balance (“Outstanding Balance”) owing to HDA accrued up to the date of closure/termination of the Account or Transaction(s), and must immediately pay such Outstanding Balance upon receipt or sending of any notice of termination from or to HDA (as the case may be).
16.4 Without prejudice to HDA’s rights in this Agreement, including under Clause 16.5 below, prior to the date of the termination of any Account or Transaction, the Customer shall instruct HDA as to the proper disposal or transfer of moneys and other property of the Customer in relation to such Account or Transaction. In absence of such instructions, HDA may discharge its entire liability with respect to the Customer’s Account(s) by either mailing to the Customer, at the Customer’s mailing address last known to HDA, bank draft(s) or cheque(s) for the benefit of the Customer, or by such other payment method as HDA may in its discretion determine, for payment of the amount(s) of the then credit balance(s) in the Account(s) after satisfaction of any outstanding liabilities owed by the Customer, in the currency of each Account or in such other currency and at such rate of exchange as HDA may determine in its discretion.
16.5 In the event that this Agreement is terminated by either Party pursuant to this Clause 16, and without prejudice to any other right of HDA hereunder or under Applicable Laws, the Customer agrees that HDA may (but is not obliged to) from the date of termination or the date of notice of termination (whichever is earlier):
(a) accelerate any and all liabilities of the Customer so that such liabilities shall become immediately due and payable;
(b) continue to act on the instructions received up to and including the termination date at the discretion and/or refusal of HDA or cancel any of the Customer’s outstanding instructions;
(c) deduct from the Customer’s Account the sum of any outstanding fees and charges and/or payments due and payable;
(d) sell, redeem, terminate, close-out and/or liquidate any or all of the Customer’s Transactions and Products (whether held by HDA or by a third party sub-custodian) in such manner as HDA deems fit and to apply the proceeds thereof towards the payment of the outstanding fees and charges and/or payments payable to HDA if there are insufficient cash or cash equivalents in the Account for that purpose, and the Customer agrees to carry out all such acts and things, and execute all documents, as may be necessary, desirable or reasonably requested by HDA to effect such sale, redemption, termination, closing out and/or liquidation;
(e) continue to charge the Customer’s Account with fees and charges for Transactions between the termination date and the date on which all Products in the Customer’s Account are disposed of in accordance with the Customer’s Instructions; and/or
(f) exercise such other authority and powers that HDA may have under this Agreement.
16.6 Upon the termination of any Account, HDA may withhold all Margins, collateral, Products, monies and other assets in the Account until full settlement of all monies owing to HDA.
16.7 This Clause 16 shall survive any termination of this Agreement.
17. GENERAL LIEN, SET-OFF, WITHHOLDING AND OTHER RIGHTS
17.1 All cash and other property of the Customer (including Margin) which may at any time be in HDA’s possession or control or carried on its 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 held by HDA as continuing security and subject to a general lien and right of set off for liabilities of the Customer to HDA or its Affiliates whether or not HDA has made advances in connection with such cash or other property, and irrespective of the number of Accounts the Customer may have with HDA.
17.2 HDA is hereby authorized 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.
17.3 HDA 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 HDA or any of its Affiliates) to reduce or extinguish any liability whether present or future, actual or contingent, as primary obligor or as surety, owed by the Customer to HDA or its Affiliates.
17.4 If the Customer has more than one account with HDA or any of its Affiliates, HDA may at any time without notice to the Customer combine or consolidate all or any of such accounts and set off or transfer any sum standing to the credit of any one or more of such accounts in or towards satisfaction of any obligations or liabilities of whatsoever nature to HDA or any of its Affiliates.
17.5 To the extent permitted by Applicable Laws, the Customer also hereby grants HDA and its Intermediaries the right to carry general loans and to pledge, repledge, hypothecate, rehypothecate, invest or loan, either separately or with the property of other customers, to either HDA or the Intermediary itself as brokers or to others, any property held 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. HDA shall at no time be required to deliver to the Customer the identical property delivered to or purchased by HDA 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). The rights of HDA set forth in this Clause shall be qualified by requirements for the segregation of customer’s funds and assets under the Applicable Laws.
17.6 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 HDA, the Customer may not withdraw any cash or other property held with HDA (whether as Margin or otherwise) without the consent of HDA. HDA 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.
17.7 Nothing in this Agreement shall restrict the operation of any general lien or other rights or lien whatsoever which HDA may be entitled to under general law.
18. POWER OF ATTORNEY
18.1 The Customer hereby irrevocably appoints HDA through any of its Officers as the attorney of the Customer for each and all purposes of this Agreement and with the power to sign and execute all documents and perform all acts in the name and on behalf of the Customer in connection with this Agreement, any Account, Product, Service, Transaction, or in respect of anything required to facilitate or give effect and/or substance to the rights conferred on HDA under this Agreement, and to do anything reasonably ancillary thereto.
18.2 Registration of this power of attorney in any jurisdiction may be effected on the Customer’s behalf by HDA at the Customer’s expense. The Customer undertakes to hold harmless, indemnify and keep indemnified HDA and any of the aforesaid attorneys from and against any and all Losses (including legal costs on a full indemnity basis) suffered or incurred by any of them in the proper exercise of their powers under this Clause.
18.3 The Customer agrees to ratify and confirm, and hereby ratifies and confirms, any and all acts and things done or caused to be done by HDA (including pursuant to the power of attorney granted in this Clause) for and on behalf of the Customer or otherwise in relation to any Account, Product, Transaction, Service, and/or any of the Products custodised with HDA.
19. CUSTOMER’S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
19.1 The Customer hereby warrants and represents to HDA as follows:
(a) in the case of the Customer being a natural person, he has full capacity and authority to accept and agree to this Agreement and perform his obligations under this Agreement, to open and maintain all Account(s) from time to time maintained with HDA, to give Instructions to HDA, to enter into Transactions, and to use any Service;
(b) in the case of the Customer being joint account holders or a partnership:
(i) that each of the partners or the joint account holders of the Account is not under any legal disability and the provisions of this Agreement are enforceable against all of them in accordance with its terms;
(ii) that it has all authorisations, consents, licences or approvals (whether under Applicable Laws or otherwise) required to accept and agree to the terms of this Agreement and perform its obligations under this Agreement, to open and maintain all Account(s) from time to time maintained with HDA, to give Instructions to HDA, to enter into Transactions, and to use any Service; and
(iii) that where not prohibited by any Applicable Law, each joint account holder’s properties (whether held jointly or in such joint account holder’s sole name and/or control) shall be available as security in favour of HDA for the Customer’s liability hereunder; and
(c) in the case of the Customer being a body corporate:
(i) that it is a corporation duly organised and validly existing under the laws of the country of its incorporation and is a legal entity capable of suing or being sued and that the provisions of this Agreement are enforceable against the Customer in accordance with its terms;
(ii) that it has all authorisations, consents, licences or approvals (whether under Applicable Laws or otherwise) required to accept and agree to this Agreement and perform its obligations under this Agreement, to open and maintain all Account(s) from time to time maintained with HDA, to give Instructions to HDA, to enter into Transactions, and to use any Service;
(iii) that the certified true copies of the Customer’s certificate of incorporation or registration, charter, statute, memorandum and articles or other instrument constituting or defining its constitution, and the board resolutions of the Customer delivered to HDA are true and accurate and still in force; and
(iv) that to the best of the knowledge of the Customer, no steps have been taken or are being taken to appoint a receiver and/or manager or liquidator over, or to wind up the Customer, and that it will immediately notify HDA of any possible intent on the part of the Customer and/or any of its creditors to wind-up the Customer.
19.2 Without prejudice to Clause 19.1, the Customer further represents, warrants, undertakes and agrees that:
(a) the declarations made and all the information provided by the Customer to HDA from time to time is true, correct and complete and is not misleading in any respect and the Customer will notify HDA immediately of any changes in such information, particulars, circumstances or status of the Customer including any change in citizenship, residence, tax residency, status (including without limitation status as Non Politically Exposed Person (“Non PEP”)), address(es) on record, telephone and facsimile numbers and email addresses and where applicable, constitution of the Customer, its shareholders, partners, directors, company secretary or nature of business. The Customer shall indemnify and hold harmless HDA for any liabilities, costs and/or Losses arising from such Customer’s inaction/failure to promptly notify HDA on the immediately foregoing changes. The Customer agrees to provide any relevant supporting documents as HDA may request for verification and if the Customer fails to comply with this request, HDA shall be entitled to take such action or refuse to take any action as it may see fit (including suspending or closing the Account) and shall not be responsible for any resulting Loss to the Customer;
(b) the Customer is an accredited investor or institutional investor, as defined in the SFA, and consents to be treated as such investor by HDA. The Customer confirms that the Customer understands the consequences of being treated as such investor by HDA;
(c) the Customer has not withheld any information from HDA that would cause HDA to refuse to open or maintain any Account, to effect any Transaction or to provide any Service to the Customer;
(d) it will at all times maintain complete and exclusive control of the Account(s), including giving complete instructions with respect to any Transaction on the Account(s), and that it will keep itself fully informed of all Transactions and other activities in the Account(s);
(e) it is familiar with, understands, will keep itself updated on and comply with all Applicable Laws, and that in any event it is separately advised on such matters and does not and will not rely on HDA in relation to these matters;
(f) any Instructions placed or any other dealings in the Account(s) are solely and exclusively based on its own judgment upon its own independent legal and tax advice and after its own independent appraisal and investigation into the risks associated with such Instructions or dealings;
(g) the properties provided to HDA hereunder, whether as Margin, collateral or otherwise, is and will be free of any encumbrance or lien;
(h) HDA has no duty or obligation to inquire into the purpose or propriety of any Instruction and shall be under no obligation to see to the application of any funds delivered by the Customer in respect of any Account;
(i) any person(s) empowered to act on the Customer’s behalf has been duly authorised;
(j) the Customer is not bankrupt or financially insolvent and no order, declaration or steps are being or have been taken to appoint a trustee in bankruptcy, receiver, receiver and manager, judicial manager, liquidator, administrator or other similar person over the Customer or the Customer’s property or assets;
(k) the Customer is acting as the principal of the Account and, unless notified to HDA in writing, the Customer will not be acting as agent, trustee or nominee for any other person or entity and shall be the full legal and beneficial owner of all funds and property in or in respect of the Account. On such notification, HDA may require reasonable verification of the identity of the principal, confirmation that the Customer is authorised to act as agent for the principal and such other information that HDA may require;
(l) the Customer shall ensure that it shall at all times be in a position to meet its commitments and obligations in respect of any Transaction;
(m) no confiscation order, charging order, restraint order, production order or search warrant under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 of Singapore has been issued or is pending against the Customer. The Customer shall notify HDA promptly if any such order or search warrant is issued or pending;
(n) the Customer’s name does not and has not at any time appeared on the list of Specially Designated Nationals and Blocked Persons maintained by the United States Office of Foreign Assets Control or on any lists or resolutions issued by the United Nations (whether through the Security Council or otherwise) pursuant to which dealings with persons specified therein are prohibited, restricted or discouraged;
(o) except with the express written consent of HDA and for any security or encumbrance created hereunder or otherwise in favour of HDA, the Customer shall not grant and no person has or shall have any right, title or interest in or security or other encumbrance over any Account and/or over any cash or property in any Account;
(p) any funds and/or assets placed now or subsequently provided by the Customer from time to time with HDA will at all times comply with all Applicable Laws, including all tax laws and regulations;
(q) its usage of any Transaction, Account or Service will not breach any Applicable Laws;
(r) the Customer has received, read, understood, acknowledged and accepted the terms of the relevant risk disclosure statements, that the risk disclosure statements are not substitutes for taking independent advice, and that no transaction will be entered into in reliance on any statement, advice or information by HDA;
(s) the Customer shall use any Services or facilities provided by HDA in connection with the Account in good faith. The Customer shall not use any device, software, algorithm, trading strategy and/or engage in any arbitrage practices (including without limitation price or time manipulation) that manipulates such Services or facilities and/or takes an unfair advantage over HDA; and
(t) neither the entry into this Agreement nor the giving of any Instructions by the Customer will violate any Applicable Laws applicable to the Customer.
19.3 Without prejudice to Clauses 19.1 and 19.2, the Customer further represents, warrants, undertakes and agrees that all properties and funds provided to HDA, whether as Margin, collateral or otherwise, are not the direct or indirect proceeds of any criminal or fraudulent activity. HDA reserves the right to investigate the source of any funds or properties in the Account and determine, in HDA’s sole discretion, how to handle their disposition. Following review of any properties or funds in question and the circumstances by which the Customer received them, HDA may determine that the Customer is not the owner of such funds. If such a determination is made, HDA reserves the right to dispose of such properties or funds in accordance with Applicable Laws and in HDA’s sole discretion.
19.4 The representations and undertakings in this Clause shall be deemed repeated whenever the Customer gives Instructions to HDA, enters into any Transactions, acquires or uses any Products or Services, or whenever the Customer establishes or operates any Account with HDA.
19.5 The Customer hereby understands, and specifically acknowledges and agrees as a capital markets services licence holder, HDA is required to apply anti-money laundering and countering the financing of terrorism measures. The Customer also acknowledges and agrees that HDA may be required (either legally or as a prudential measure for the legitimate protection of its commercial interests) to comply with requests from domestic and international tax authorities pursuant to any tax laws (including with extra-territorial application that may not be recognised under Singapore laws), regulations, orders or agreement by or between governments relating to tax and agrees and consents to HDA acting as so required with respect to the Customer (including with respect to the Customer’s Personal Data). The Customer further acknowledges and agrees that it (and not HDA) is the only party fully in possession of all relevant facts to determine its tax residency and/or tax liabilities and as such and to enable HDA to comply with the requirements summarised earlier, the Customer specifically declares by way of representing, warranting and undertaking in favour of HDA:
(a) it is tax resident and/or if it is a corporation it has a permanent establishment for tax purposes, only in the country or countries indicated in its submitted Application Form;
(b) it is solely responsible for its own tax affairs and ensures that its Account(s) maintained with HDA is in each case in compliance with the tax laws of the relevant jurisdiction(s) which its permanent establishment (if applicable) is subject to, or it is tax resident of;
(c) it has not wilfully committed nor has it been convicted of any serious tax crimes and when it is necessary it has taken, or will take tax and/or legal advice in relation to the matters referred in this declaration. It further acknowledges that HDA does not provide any tax advice to it;
(d) forthwith upon HDA’s request, it will provide HDA with all required documentation or information, including but not limited to (as applicable) the date of incorporation, countries of incorporation, countries of tax residency and associated taxpayer identification numbers, that may be required by HDA for purposes of making inquiries on its tax status;
(e) it agrees and consents to HDA collecting, storing, using and disclosing any and all such information in accordance to the terms of this Agreement;
(f) it acknowledges that HDA may take whatever action HDA considers appropriate to meet any obligations, either in Singapore or elsewhere in the world, relating to the prevention of tax evasion. This may include, but is not limited to, investigating the Customer’s Account(s) maintained with HDA and any source of or intended recipient of funds relating to the Customer’s Account(s), sharing information and documents with, and making any reports to comply with any requests of, domestic and international tax authorities, and withholding any funds and transferring it to such tax authorities;
(g) it will notify HDA immediately if there is any change to the circumstances declared above; and
(h) it acknowledges and agrees that HDA materially relies on its declarations above when considering whether to accept its Account application or to continue to provide Services to it.
19.6 The Customer hereby understands, acknowledges and agrees that in order to comply with any applicable market conduct, anti-money laundering and the prevention of the financing of terrorism regulations, HDA may require detailed verification of the Customer’s identity, the source of the payment of monies and purpose/nature of the Customer’s Transactions. HDA may conduct and satisfy any and all due diligence procedures required in connection with anti-money laundering and countering the financing of terrorism laws, and to satisfy any Customer eligibility requirements. HDA reserves the right to request and the Customer agrees to provide such information as is necessary to verify the identity of the Customer and its beneficial owners (if any), the source of the Customer’s funds and/or wealth, the purpose/nature of Transactions and any other information necessary to comply with market conduct, anti-money laundering and anti- terrorism rules under Applicable Laws whether in or outside Singapore. In the event of delay or failure by the Customer to produce any information required for verification purposes, HDA may refuse to accept any deposits in the Account, terminate the Account, carry out any Transaction, provide any Service and/or refuse to pay any withdrawal proceeds. Neither HDA nor any of its Nominees shall be responsible or liable for any Loss suffered by the Customer as a result of the rejection or delay of any of the foregoing or any compulsory withdrawal of the Account.
20. INTELLECTUAL PROPERTY
The Customer acknowledges that all Intellectual Property Rights in and related to the Services, the Electronic Broking Facilities and any data (including but not limited to order data, price, time, volume execution and other information relating to orders), analytics and research in connection with the Services and any feedback or suggestions the Customer provides regarding the Services shall vest solely in and shall remain the exclusive property of HDA. The Customer agrees not to do anything that will violate or infringe HDA’s Intellectual Property Rights.
21. GENERAL INDEMNITY
21.1 In addition and without prejudice to any other right or remedy of HDA (at law or otherwise) the Customer hereby agrees to fully indemnify, keep indemnified, and hold HDA, its Officers and Nominees harmless from and against any and all Loss (including legal costs on a full indemnity basis) suffered or incurred, or which may be suffered or incurred by HDA, its Officers or Nominees arising from, as a result of or in connection with:
(a) any failure by the Customer to comply with the terms of this Agreement or the Application Form, or to fully and punctually perform any of its obligations hereunder or in respect of any order and/or Transaction;
(b) HDA acting or omitting to act in accordance with the Customer’s Instructions (or any communication given or purportedly given by any person authorised to act in relation thereto), or taking any action, exercising any right, power and discretion, performing any of its duties and obligations or otherwise acting in any manner permitted under this Agreement or the Application Form including where so acting or omitting to act results in any claim by or liability to any third party;
(c) any of the Customer’s representations, warranties, agreements and undertakings in this Agreement or the Application Form being untrue, incorrect, incomplete or misleading in any respect;
(d) any actions, claims, demands or proceedings brought by any third party (including Relevant Bodies and Intermediaries) against HDA further to its acting in accordance with the Customer’s Instructions or otherwise in the exercise of its powers under this Agreement or the Application Form;
(e) any act and/or omission of the Customer resulting in HDA being subject to any claim of liability to any third party rights including for violation of any proprietary or Intellectual Property Rights, or the enforcement of any of the terms and conditions of this Agreement or the Application Form;
(f) any change in any Applicable Laws;
(g) any act or thing done or caused to be done by the Customer in connection with or referable to this Agreement, the Application Form or any Account, or any Transaction entered into for or with, or any Service provided to, the Customer;
(h) any act or thing done or caused to be done by HDA in connection with or referrable to this Agreement, the Application Form or any Account;
(i) any dealings with any Account by any person authorised to act in relation thereto;
(j) HDA’s disclosure of Customer Data in accordance with this Agreement or the Application Form, any applicable agreement or Applicable Laws;
(k) where the Customer is acting as trustee of any trust, any dispute between the beneficiaries and the Customer;
(l) any delay in settlement of any Transaction that is the result of any circumstances, acts or events beyond the control of HDA; and/or
(m) any circumstances, acts or events beyond the control of HDA, including but not limited to industrial disputes, acts or regulations or any governmental or supranational bodies or authorities and breakdown, failure or malfunction of telecommunications or computer service or systems.
21.2 The Customer’s obligation to indemnify HDA under this Clause shall survive the termination of this Agreement, closure of any Account or termination or cessation of any Service.
22. EXCLUSION OF LIABILITY
22.1 The Customer agrees that none of HDA or any of its Officers or Nominees shall be responsible for or liable to the Customer for any Loss suffered by the Customer, including any Loss resulting from any act or omission in relation to any Account, the operation, provision or termination of any of the Services, the exercise of any of HDA’s rights, powers and discretions or the performance of any of its duties and obligations under this Agreement or the Application Form, or any error of judgment or error of fact unless it was caused by fraud or wilful default directly attributable to HDA.
22.2 Without prejudice to the above, none of HDA or any of its Officers or Nominees shall be liable to the Customer for any Loss suffered or incurred by the Customer arising from or in connection with:
(a) the Customer’s default or negligence;
(b) the Customer’s or any Authorised Person’s failure to comply with or fulfil any of the Customer’s obligations or warranties;
(c) any liability for tax or similar charges payable in connection with any Transaction or Product or arising from the utilisation of any of the Services offered by HDA to the Customer;
(d) HDA acting upon any financial instrument, notice, resolution, request, certificate, report or other document which HDA, in good faith, believed to be genuine and properly executed or any Instruction from the Customer or any Authorised Person;
(e) HDA’s refusal to accept or act on any of the Customer’s Instructions in accordance with this Agreement;
(f) any delay or failure in performing any of HDA’s obligations resulting wholly or partly from any action taken by HDA for the purpose of complying with Applicable Laws;
(g) any delay, interception, loss or failure in the delivery, transmission or dispatch of any communication to the Customer or if the content of any communication is disclosed to any third party during transit;
(h) any delay, loss or failure in the transmission or wrongful interception of any Instructions transmitted through any communication channels, equipment or system, including any equipment or system owned and/or operated by or on behalf of HDA;
(i) any action, inaction or insolvency of any broker, intermediary, sub-custodian, exchange, market or clearing house (including wrongful or unlawful action or inaction);
(j) the properties or functionality of any digital token or digital asset, and any flaws in any digital token or digital asset, including but not limited to technology flaws, design flaws, bugs, exploits or vulnerabilities in the code of any digital token, digital asset, blockchain or smart contract;
(k) HDA’s disclosure of Customer Data in accordance with this Agreement, HDA’s Personal Data Protection Policy, any applicable agreement or Applicable Laws; and/or
(l) any suspension of trading or change in trading conditions affecting the market, or any delays due to market conditions or changes in market conditions.
22.3 Without prejudice to the foregoing, none of HDA or any of its Officers or Nominees shall at any time be responsible or liable whether in tort, in contract or otherwise for any indirect or consequential Loss of any kind or special or punitive damages or any loss of business, loss of profits or loss of opportunity or any economic loss, market loss or trading loss, even if HDA has been advised of the possibility of such damages.
23. FORCE MAJEURE
23.1 HDA shall not be responsible or liable for any Loss, damage, costs or delay whatsoever suffered or incurred by the Customer (including any Loss or delay in the performance of any of HDA’s duties or obligations, or execution of any Instructions under this Agreement) caused by events beyond HDA’s control, including without limitation, fire, earthquake, tsunami, flood, lightning, riots, strikes, lockouts, government action, war, epidemic, pandemic, industrial action, act of terrorism, cyber-attack, technology attacks, malfunction on the blockchain network or protocol, telecommunications or internet disruption, computer failure, failure of hardware or software, failure of any relevant exchange, clearing house, settlement system or broker or similar or other events or events commonly known as “force majeure” (“Event Outside Its Control“).
23.2 HDA may determine that a situation or an exceptional market condition exists which constitutes an Event Outside Its Control and/or a Market Disruption Event. If HDA determines that an Event Outside Its Control or Market Disruption Event has occurred, it may take any of the steps referred to in Clause 23.3 with immediate effect. HDA will take reasonable steps to notify the Customer of any action it proposes to take before it takes any action to the extent practicable. If it is not practicable to give the Customer prior notice, HDA will notify the Customer at the time or promptly after taking any such action.
23.3 If HDA determines that an Event Outside Its Control and/or a Market Disruption Event has occurred, HDA may take one or more of the following steps:
(a) cease or suspend trading, and/or refuse to enter into any Transaction or accept any Instructions;
(b) alter HDA’s normal trading times for all or any markets;
(c) change the price for orders or Transactions and/or minimum or maximum quantity;
(d) close any open positions, cancel and/or fill any orders, and/or make adjustments to the price and/or quantity of any open positions and orders;
(e) change the margin requirements in relation to both open positions and new Transactions;
(f) change the margin close out/liquidation level applicable to any Account;
(g) immediately require payments of any amounts owed to HDA, including margin requirements;
(h) void or roll over any open positions; and/or
(i) take or omit to take all such other actions as HDA considers to be reasonable in the circumstances to protect itself and its customers as a whole.
23.4 In some cases HDA may be unable, after using reasonable efforts, to acquire, establish, re- establish, substitute, maintain, unwind or dispose of any hedge or protect its exposure to market and other risks arising from an open position. When this occurs HDA may close that open position at the prevailing price as determined and deemed fit.
23.5 HDA will not be liable to the Customer for any Loss or damage arising or referable to any Event Outside Its Control or a Market Disruption Event nor for any action or decision it takes under Clauses 23.3 and 23.4, provided HDA acted in good faith.
24. COMMUNICATIONS
24.1 Communications may be transmitted or sent by HDA to the Customer by telephone, electronic mail, electronic messaging (including but not limited to SMS, Whatsapp and/or such other modes of electronic communication) or to any mailing address of the Customer at such number(s) or address(es) last known to HDA. Any such communications shall be deemed received by the Customer (in the case of electronic mail and electronic messaging) immediately upon transmission by HDA, or (in the case of posted communications) one (1) Business Day after the communication was dispatched by HDA (in the case of a Customer who has a Singapore residential address) or five (5) Business Days after the communication was dispatched by HDA (in the case of a Customer who has a non-Singapore residential address). Communications served personally on or delivered personally to the Customer by HDA shall be deemed received upon service or delivery.
24.2 The risk of loss of or damage to, and the costs of delivery of, any articles or items sent to the Customer shall be borne by the Customer.
24.3 Any communications from the Customer to HDA, whether they be instructions relating to any of the Accounts or otherwise, shall be given in accordance with the general operating procedures of HDA as may be specified by HDA from time to time.
24.4 The Customer shall indemnify and hold harmless HDA from any Losses and/or liabilities arising from Customer’s Instruction(s) made through any modes of communication.
24.5 The Customer understands and accepts all risks associated with communications via electronic mediums, which includes without limitation any failure and/or delay to any receipt of any communication from HDA, and/or vice versa, due to mechanical, software, computer, telecommunications and/or any other electronic systems failure. The Customer agrees that such aforementioned failure and/or delay of transmission of communication shall not in any manner invalidate or prejudice such communication it relates to. HDA shall not be liable to the Customer for any Loss or damage arising from such aforementioned failure and/or delay of transmission of communication. The Customer further accepts the risk that any electronic communications sent by HDA to the Customer may not be encrypted and/or secure.
24.6 Where the Customer comprises more than one Person (including in the case of any Joint Account or Account opened in the name of a partnership), any notice, demand and/or other communications shall be deemed to be received by all of the Persons comprising the Customer if it is received (or deemed received) by any one of such Person (whether or not it is forwarded to or received by any other Person(s) comprising the Customer) in accordance with this Clause 24.
25. STATEMENTS AND CONTRACT NOTES
25.1 Whenever the Customer receives any statements of account, contract notes or any document in relation to any Account or provided pursuant to any of the Services from HDA, the Customer shall verify the same and shall inform HDA of any mistakes or omission or disagreements within five (5) days from the date the statement of account, contract note or document was despatched or transmitted. If the Customer fails to do this, he agrees that he no longer has the right to dispute the accuracy of the statement, note or document. Accordingly, HDA has the right to treat the Customer’s silence as the Customer’s representation that the statement, note or document is accurate. However, if HDA finds out at any time that any statement, note or document is inaccurate, it may at any time amend the statement, note or document accordingly and may demand immediate repayment from the Customer of any monies erroneously paid over to the Customer as a result of such inaccuracy. The Customer shall immediately notify HDA if any statement of account, contract note or document provided pursuant to the Account or Services is not received by the Customer in the ordinary course of business.
25.2 The Customer consents to the particulars in the Customer’s statement of account (as prescribed under the Securities and Futures (Licensing and Conduct of Business) Regulations) being made available to the Customer, on a real-time basis, in the form of electronic records stored on an electronic facility.
26. UNCLAIMED MONEYS AND ASSETS
If there are any monies, Products or other property standing to the credit of any Account (including a trust or custody account) or otherwise held by HDA or its Nominee or sub-custodian for and on behalf of the Customer which are unclaimed by the Customer six (6) years after the Customer’s last transaction with or through HDA and HDA determines in good faith that it is not able to trace the Customer, the Customer hereby irrevocably agrees that all such moneys, Products 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; and in the case of Products shall include all accretions and accruals thereon) shall be deemed to have been abandoned by the Customer in favour of HDA and may be appropriated by HDA to and for itself to utilise in any manner HDA so wishes for its own benefit. The Customer thereafter shall have no right to claim such moneys, Products or property, or their accretions and accruals with the Customer being deemed to have waived and abandoned all its rights to such moneys, Products or property (and any other property as may have accrued to it) in favour of HDA.
27. DISCLAIMERS
27.1 Other than statements of fact, any opinions, reports, summaries, analyses or other information of whatsoever nature and howsoever supplied to the Customer by or on behalf of HDA, are merely expressions of general views or opinions intended for no more than general circulation and information. The Customer acknowledges that:
(a) no guarantee is given by HDA as to the accuracy or completeness of any opinions, reports, summaries, analyses or other information provided;
(b) as such opinions, reports, summaries, analyses or other information may not be prepared with individual customers or classes of customers in mind, they are to be treated as general views and opinions only and are not suitable for use by individual customers or classes of customers without independent verification; and
(c) each such view or opinion is subject to change without notice.
27.2 The Customer acknowledges that while such opinions, reports, summaries, analyses or other information may be supplied to it by or on behalf of HDA, HDA provides to the Customer execution-only Services and on the basis that the Customer remains and the Customer accepts remaining solely responsible and liable for its own decision on the relevant matter. The Customer further agrees that HDA and its Officers shall not be responsible for any Loss that may be incurred by the Customer in reliance on any such opinion, report, summary, analysis or other information so provided by HDA or any of its Officers.
27.3 Products are issued by the respective issuers. HDA makes no warranties, express or implied, in respect of any Products. The Customer agrees and acknowledges that HDA shall not be responsible for or liable in respect of any Products, including but not limited to any terms, conditions, warranties, undertakings, inducements or representations made by or on behalf of an issuer of any Product (each, an “Issuer”) or in any materials issued by an Issuer. Without prejudice to the foregoing, HDA makes no representation, warranty or endorsement and has no liability or responsibility with respect to (a) the quality, safety, legality, validity, reliability, value, financial condition, structure or description of any Product, or the assets (if any) represented by any Product; (b) any rights granted by an Issuer in respect of any Product and the enforcement of such rights; (c) the authenticity, validity or accuracy of any document provided by or issued by an Issuer; (d) the existence of, the safekeeping of, and the authenticity of, the underlying assets (if any) of any Product; (e) the existence of, and the structure, legality, validity, enforceability or status of, any security (if any) given by an Issuer or any other person in relation to a Product; (f) the tax treatment and accounting treatment of any Product and any taxes in relation to any Product; (g) the legality, validity, legal status, financial condition, structure or tax status of any Issuer; and (h) any negligence, misconduct, fraud, wilful default or any other default, wrongdoing, breach of duty or anything else done or omitted to be done in relation to a Product, whether by the Issuer or any other person. HDA shall not be liable, whether in tort, contract or otherwise, for any Loss suffered or incurred by the Customer or any other person arising out of or in connection with any Product, or any act, omission, fraud, negligence, default or insolvency of any Issuer, including any breach or failure to comply with any Product documentation and terms.
27.4 HDA does not and is not willing to assume any advisory, fiduciary or similar duties to the Customer. HDA assumes, and relies on the assumption that the Customer has taken independent legal, tax, financial and other advice in relation to any Account or Transaction.
28. COLLECTION, PROCESSING, USE AND DISCLOSURE OF CUSTOMER DATA
28.1 HDA’s Privacy Policy (as may be amended from time to time) available at https://www.hydrax.io/privacy-policy/ is incorporated by reference into and forms part of this Agreement. HDA’s Personal Data Protection Policy shall apply to all Customer Data provided by the Customer or otherwise collected by HDA from any other sources or in the course of the Customer’s relationship with HDA or any of HDA’s Affiliates and the Customer hereby consents to the collection, processing, use and disclosure of Customer Data in accordance therewith. If the Customer provides HDA with Customer Data of another individual (including, where applicable, the Customer’s directors, partners, employees, Authorised Persons, shareholders and beneficial owners), the Customer undertakes, represents and warrants to HDA that the Customer has obtained such individual’s consent for, and hereby consents on behalf of such individual to, the collection, processing, use and disclosure of his/her Customer Data by HDA in accordance with HDA’s Personal Data Protection Policy. In the event of any conflict or inconsistency between this Agreement and HDA’s Personal Data Protection Policy, the former shall prevail.
28.2 Without prejudice to any provision in HDA’s Personal Data Protection Policy, the Customer expressly agrees and permits that HDA and/or HDA’s Officers may disclose any Customer Data to the following persons (whether in Singapore or elsewhere) for the purpose of establishing, maintaining and/or operating the Customer’s Account, providing any Service to the Customer, managing the Customer’s relationship with HDA and/or any of HDA’s Affiliates and any other purpose connected or relevant to HDA’s business (including operating internal controls and complying with Applicable Laws):
(a) any other office, representative office and HDA’s Affiliates, whether in Singapore or elsewhere;
(b) any agent, insurers, professional advisers (including auditors and legal advisers) or any other third party provider of services (including debt collection, printing or mailing of statements, reports, newsletters or other documents, professional, management, administrative, data management, electronic, telecommunications, computer, payment, collection, security, investigation, clearing and credit reference or checking services) or to any person to whom HDA has outsourced or sub-contracted any part of HDA’s operations;
(c) to the police or any public officer conducting an investigation in connection with any offence;
(d) to any of HDA’s Affiliates for risk management purposes, for purposes of centralisation of operations within HDA and its Affiliates, for purposes in connection with business planning, restructuring and strategy and for the purpose of promoting financial products and services to the Customer;
(e) any exchange, clearing house, trade repository or Intermediary in Singapore or elsewhere in connection with the Customer’s Transactions, Accounts and/or Services utilised by the Customer;
(f) any bank, financial institution or custodian with which HDA maintains any customer trust account(s);
(g) any issuer and where applicable, the manager and trustee of any of the Customer’s investments;
(h) any person with (or through whom) HDA enters into or may potentially enter into any transaction in connection with the purchase or sale of any credit insurance or any other contractual protection or hedging with respect to the Customer obligations under any of the Customer’s investments, Transactions, Accounts or the Services utilised by the Customer;
(i) any court or tribunal, government, quasi-government, regulatory, fiscal, monetary or other authority, agency, body or person, whether in Singapore or elsewhere, where such disclosure is required by Applicable Laws (including Applicable Laws on anti-money laundering or which impose any reporting and/or withholding obligations such as the United States Foreign Account Tax Compliance Act) or pursuant to the order of any court or tribunal or any code or guideline not having the force of law but with which HDA generally complies;
(j) any credit bureau approved by the relevant authorities and any member or subscriber of such credit bureau;
(k) any person who provides introducing or referral services to HDA or to whom HDA provides introductions or referrals;
(l) any person to whom any fee, commission or other amount may be payable, for the purpose of determining the quantum of such fee, commission or other amount;
(m) any insurer, guarantor and/or security provider in relation to any of the Customer’s investments, Transactions, Accounts or any of the Services utilised by the Customer;
(n) any actual or potential assignee or transferee of any of HDA’s rights and obligations or other actual or potential participant or sub-participant of any of HDA’s rights and/or obligations under or relating to any of the Customer’s investments, Transactions, Accounts or any of the Services utilised by the Customer;
(o) any person in connection with the marketing or promotion of any Services or products offered by HDA or investigating any complaint or dealing with any query relating to the marketing or promotion of any such Service or product;
(p) any person whom HDA believes in good faith to be the Customer, the Customer’s representatives and/or Authorised Person;
(q) any of the Customer’s auditors and where applicable, the Customer’s directors, shareholders and partners;
(r) where the Customer is acting as trustee of a trust, the beneficiaries of the trust;
(s) the other joint account holders of a joint account;
(t) any third party with whom HDA or its Affiliates has service arrangements, and any person to whom, in HDA’s opinion, disclosure is required for the proper administration and operation of the Customer’s Account or the execution of any Transaction or the provision of any Service;
(u) any person as the Customer or the Customer’s legal or personal representatives may, from time to time, expressly authorise HDA in writing and in such case, such authorisations shall remain valid and in effect until HDA receives written revocation of such authorisation from the Customer or the Customer’s legal or personal representatives; and
(v) any person to whom HDA is under a duty to disclose or HDA considers in good faith is in HDA’s interest to make such disclosure.
In the event the Customer instructs HDA to send funds by wire transfer to a bank or financial institution (the “Beneficiary Institution”), whether in Singapore or elsewhere, the Customer acknowledges that HDA may be required to disclose certain Customer Data to the Beneficiary Institution, and the Customer consents to such disclosure.
The Customer acknowledges and accepts that any Customer Data disclosed by HDA may be subject to further disclosure by the recipient to other parties whether in accordance with the laws of the country in which the recipient is located or otherwise. Such laws may be wider in scope and implemented under less restrictive terms that would otherwise be the case in Singapore. The Customer agrees that HDA shall not be liable for any Loss sustained or incurred by the Customer by reason of or in connection with such further disclosure by the recipient.
Any consent given by the Customer in relation to the collection, use, processing and disclosure of Customer Data shall continue notwithstanding the Customer’s death or incapacity, the termination of this Agreement or any applicable agreement, or the closure of any of the Customer’s Accounts, and the rights conferred on HDA in this Clause 28 and HDA’s Personal Data Protection Policy are in addition to, and shall not prejudice, any other rights that HDA may have under Applicable Laws or any other agreement.
29. FOREIGN ACCOUNT TAX COMPLIANCE ACT (“FATCA”) AND OTHER LAWS
29.1 The Customer authorises HDA to disclose any personal and account information where such disclosure is required by Applicable Laws (including applicable laws imposing any reporting and/or withholding obligations on HDA such as the United States FATCA and Income Tax Act 1947 of Singapore each as may be amended, superseded or replaced), regulations, orders, agreements, or treaties made by or between tax authorities and/or governments, and to:
(a) any of HDA’s Affiliates, wherever situated;
(b) any government, quasi-government, regulatory, monetary or other authority whether in Singapore or elsewhere, including the United States Internal Revenue Service, the United States Treasury Department, the Inland Revenue Authority of Singapore and the Monetary Authority of Singapore;
(c) any party to whom HDA is under a legal duty to disclose; and/or
(d) any party where HDA in its good faith and interest, deemed fit to make such disclosure.
29.2 The Customer agrees that the Customer shall be required to, upon demand by HDA and in a timely manner:
(a) provide any form, certification or other information, as may be requested by and in a form acceptable to HDA, that is necessary for HDA:
(i) to prevent withholding tax or qualify for a reduced rate of withholding tax or backup withholding tax in any jurisdiction from or through which HDA receives payments; or
(ii) to satisfy reporting or other obligations under the United States Tax Code and the United States Treasury regulations promulgated thereunder or the Income Tax Act 1947 of Singapore;
(b) update or replace such form, certification, or other information in accordance with its terms of subsequent amendments; and
(c) otherwise comply with any reporting obligations imposed by the United States or any other jurisdiction, including reporting obligations that may be imposed by future legislation.
29.3 The Customer acknowledges and agrees that any sum that may be payable by HDA shall be subject to all Applicable Laws, including any withholding tax requirement, foreign exchange restriction or control. The Customer agrees and acknowledges that pursuant to the foregoing, HDA may perform, or cause to be performed withholding of any monies payable to the Customer, deposit any such monies into a sundry or other account and/or retain such monies pending determination of the applicability of such withholding tax requirement, foreign exchange restriction or control. HDA shall not be liable for any Losses that may be incurred by reason of such withholding, retention or deposit. In addition, the Customer agrees to hold harmless, indemnify and to keep HDA fully indemnified from and against any amount of payment, withholding or deduction referred to in this Clause that is in excess of such amount as may be standing to credit of the Customer’s Account.
29.4 The Customer will promptly notify HDA in writing of any change(s) in: (a) particulars of the Customer, circumstances, status, including without limitation to any change in citizenship, residence, tax residency, status as Non PEP, address(es) on record, telephone and facsimile numbers and email address(es); and (b) (where applicable) constitution of the Customer, shareholders, partners, directors or company secretary, or the nature of the Customer’s business. In addition, the Customer shall be required to, upon demand by HDA and in a timely manner, provide any form, certification, representation, confirmation or other information, as may be requested by and in a form acceptable to HDA.
29.5 The Customer acknowledges and agrees that HDA may in its sole and absolute discretion terminate the Account with immediate or subsequent effect by written notice if the Customer fails to comply in a timely manner with the requirements in this Clause, whereupon HDA shall be entitled to receive all fees and other monies accrued up to the date of such termination.
29.6 Without prejudice to the specificity of Clause 29.3 above, the Customer acknowledges and agrees that HDA shall not be responsible for or liable for any Loss to the Customer arising as a result of any act or omission or any error of judgment not amounting to actual fraud in complying with HDA’s reporting or other obligations under Applicable Laws (including the US Tax Code and the United States Treasury regulations promulgated thereunder or under the Income Tax Act 1947 of Singapore).
29.7 The Customer will cooperate fully in respect of any enquiry that HDA may make for the purposes of compliance with any applicable law (including the United States FATCA or the Income Tax Act 1947 of Singapore as each may be amended, superseded or replaced) and/or any other reporting and/or withholding requirements of any government, including promptly providing all relevant information, details and/or documents as HDA may in good faith determine may be necessary or prudent to comply with the same.
29.8 Where, with respect to the United States FATCA, the Customer is or is reasonably determined by HDA to be a Customer with US Indicia, the Customer, in addition to the Customer’s obligations under the aforementioned Clauses 29.2 to 29.7, and HDA’s rights and authorisation above, acknowledges and agrees to the following:
(a) to provide all information or documentation with respect to the Customer’s default deemed FATCA status by virtue of the Customer having US Indicia no later than 90 days from the later of the opening of the Customer’s Account or the Customer having US Indicia, failing which the Customer may be regarded as recalcitrant and non-cooperative and HDA may need to report the Customer’s personal and Account information to the United States Internal Revenue Service; and
(b) the Customer understands and shall comply with all Applicable Laws and/or regulatory requirements in relation to FATCA.
For the purpose of this Clause, “US Indicia” means any or any combination of the following: US citizenship or permanent residency; US birthplace; a current US residence address or US mailing address (including a US post office box); a current US telephone number; standing instructions to transfer funds to an account maintained in the US; and a current general power of attorney granted to a person with a US address.
30. MARKET DATA
The Customer acknowledges and agrees that with respect to any market data or other information that HDA or any third party service provider provides to the Customer in connection with the use of the Electronic Broking Facilities or otherwise:
(a) HDA and any such provider are not responsible or liable if any such data or information is inaccurate or incomplete in any respect;
(b) HDA and any such provider are not responsible or liable for any actions that the Customer takes or does not take based on such data or information;
(c) such data or information is proprietary to HDA and any such provider and the Customer will not retransmit, redistribute, publish, disclose or display in whole or in part such data or information to any third party except as required by Applicable Laws;
(d) the Customer will use such data or information solely in compliance with the Applicable Laws, rules and regulations and/or conditions imposed by HDA;
(e) the Customer will receive and/or use such market data or information in compliance with all terms and conditions;
(f) the Customer will pay such market data costs (if applicable) and any applicable taxes associated with the Customer’s use of the Electronic Broking Facilities as notified by HDA from time to time;
(g) HDA may monitor the Customer’s use of such market data or information from time to time; and
(h) the Customer shall indemnify HDA in respect of any liabilities arising from its supply of such market data or information to the Customer.
31. INTRODUCTIONS, SHARING OF FEES, COMMISSIONS AND/OR OTHER CHARGES
31.1 The Customer acknowledges that the Customer may have been introduced or referred to HDA by a third party. If so, the Customer accepts that:
(a) no such third party shall in any way be regarded as an agent of HDA and that HDA accepts the Customer as a customer only on the basis that HDA does not accept and will accept no responsibility for any conduct, action, representation or statement of any such third party; and
(b) HDA may however share its fees, commissions and/or charges with such third party or any other third party or otherwise reward such third party for such introduction or any administrative service that the same may perform for HDA in relation to the Customer.
31.2 The Customer may from time to time request HDA to assist the Customer in transacting with HDA’s Affiliates, its business partners or other third parties, or HDA may of its own initiative inform the Customer of such opportunities or direct such parties to so offer such opportunities to the Customer or market such parties’ offers to the Customer. In such a case, the Customer agrees that he shall be solely responsible for deciding for himself whether, and if so, to actually contract to open, establish and maintain any such account(s), or enter into or effect any transaction directly with the relevant party and that:
(a) HDA shall not in any way be regarded as an agent of the relevant third party (even if an Affiliate of HDA) and that the Customer will establish and/or maintain its account or effect any transaction with the relevant party only on the basis that HDA will have no liability or responsibility for (i) such account or transaction; (ii) any representation or statements made to be relied on by the Customer in establishing and/or maintaining such account or effecting such transaction; or (iii) any wrongdoing, act, omission, insolvency, negligence, breach of duty, misconduct, fraud, wilful default or any other failure or default by or in respect of the relevant third party; and
(b) HDA may however receive one or more payments for it having referred the Customer to the relevant party for the Customer to open and/or maintain an account with such party or effect any transaction with such party. The Customer agrees and consents to the foregoing and HDA’s retention and appropriation wholly for its own account and benefit of such payments.
32. GOVERNING LAW AND JURISDICTION
32.1 This Agreement, any Account, and the relationship between the Parties, shall be governed by and construed in accordance with the laws of the Republic of Singapore.
32.2 In relation to any legal action or proceedings arising out of or in connection with any Account (including Transactions effected for the Account) or referable to any Service, the Customer hereby submits to the non-exclusive jurisdiction of the courts of the Republic of Singapore and the Customer waives any objection to the proceedings on the ground that the proceedings have been brought in an inconvenient forum. Nothing in this Agreement restricts the right of HDA to submit a dispute to any other court of competent jurisdiction and the Customer agrees to submit to the jurisdiction of such other court, whether concurrently or not.
33. AMENDMENT OF TERMS AND CONDITIONS
HDA shall be entitled, by notice to the Customer in the manner set out below, amend, supplement, vary and/or modify the terms of this Agreement at any time, and such amendment, supplement, variation or modification shall take effect from the date specified by HDA in the notice (which shall be binding upon receipt or deemed receipt by the Customer). Such notice may be given to the Customer as set out in Clause 24.1, or by publication of the amendment, supplement, variation and/or modification on HDA’s website. If the Customer continues to operate the Customer’s Account and/or utilise the Services provided by HDA after such written notification, the Customer is deemed to have agreed to such amendment, supplement, variation and/or modification without reservation.
34. MISCELLANEOUS
34.1 The rights and remedies of the Parties under this Agreement are cumulative and are without prejudice and in addition to any rights or remedies which the Parties may have at law or in equity, and no exercise by a Party of any one right or remedy under this Agreement, at law or in equity, shall (save to the extent, if any, provided expressly in this Agreement, or at law or in equity) operate to hinder or prevent the exercise of any other right or remedy by that Party.
34.2 Time shall be of essence in this Agreement in relation to any of the Customer’s obligations and duties hereunder.
34.3 The Parties agree and acknowledge that the Agreement and the language of all formal communication shall be in English, and the Customer will receive documents and other information in English. HDA may in its sole discretion provide other language support but on the express understanding and agreement that it is the Customer’s responsibility to ensure the Customer fully understands the terms of the Agreement and all formal communications from HDA that is in English. Therefore, if a document or communication is translated into another language this will be for information purposes only and the English version shall be binding and shall prevail in the event of any ambiguity, discrepancy or omission as between the English version and any translated text.
34.4 No delay or omission on the part of HDA in exercising any of its rights, powers or remedies provided by law or under this Agreement, or partial or defective exercise thereof, shall: (a) impair or prevent further or other exercise of such right, power or remedy; and/or (b) operate as a waiver of such right, power or remedy.
34.5 No waiver by HDA of any breach of the Customer’s obligations hereunder, shall (unless expressly agreed in writing by HDA) be construed as a waiver of a future breach of such similar obligation or as authorising a continuation of such particular breach by the Customer.
34.6 Unless expressly provided in the terms and conditions of this Agreement, a person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce any of the terms of this Agreement. Where a third party is conferred rights under this Agreement, those rights are not assignable or transferable.
34.7 This Agreement shall be binding on the Parties and their respective successors in title and assigns and shall continue to be binding on the Customer notwithstanding any change in HDA’s name or constitution or ownership structure, or the consolidation, amalgamation or merger of HDA into or with any other entity. The Customer may not without the prior written consent of HDA assign or transfer all or part of its rights, interests, powers or obligations hereunder or in connection with any Account or Transaction. HDA may at any time and from time to time, for any reason as it shall in its absolute discretion deem fit, assign any or all of its rights, benefit, title and interest under or in connection with this Agreement to any Affiliate, or successor of HDA (whether in Singapore or in any other jurisdiction). The Customer hereby agrees that such assignment or transfer may be effected by HDA delivering to the Customer a notice to that effect.
34.8 If any provision of this Agreement, including any of its Appendices, or Schedules is or becomes illegal, invalid or unenforceable, the same shall not affect the legality, validity or enforceability of any other provision of this Agreement nor the legality, validity or enforceability of such provisions under the law of any other jurisdiction. If any event occurs (including the introduction, implementation, operation or taking effect of, any Applicable Laws, or any change in Applicable Laws or in their interpretation or application by any governmental authority or agent) which makes or declares it unlawful or impracticable for either Party to exercise its rights or perform its obligations under this Agreement, HDA shall in good faith determine if this Agreement may be amended or the arrangements restructured in a manner which is lawful. If HDA determines in good faith that this is not reasonably practicable, HDA may terminate any Account(s) or any Transaction in accordance with Clause 16 and take all actions in accordance with Clause 14 as if a Default had occurred for the purpose of that Clause without any liability for any Loss incurred.
Part B - Section 1: Custodial Services
Definitions
In this Section 1, unless the context otherwise requires, the following words and expressions shall bear the following meanings:
“Bonus Related Assets” shall have the meaning given to it in Clause 5.2, Section 1 of Part B;
“Custodial Services” shall have the meaning given to it in Clause 1, Section 1 of Part B; and
“Related Assets” means dividends, interest and other moneys payable in respect of the Customer’s Products and all other rights, benefits and proceeds in respect of or derived from the same (whether by way of redemption, bonus, preference, option, substitution, conversion or otherwise).
1. Bare Custodial Services
1.1 Unless otherwise agreed, the Customer expressly authorises HDA as custodian to receive and hold all Products and other assets of the Customer for the benefit of the Customer, and HDA shall supply such custodial services (the “Custodial Services”) to the Customer on the terms set out in this Section 1.
1.2 The Customer acknowledges in any event that HDA, when acting as custodian, is not a fiduciary to the Customer or otherwise with respect to the Customer’s Products but shall be regarded generally only as a bare custodian and not trustee of the Products. There shall be no relationship of trustee and beneficiary between HDA and the Customer, or any further relationship in relation to HDA’s provision of Custodial Services other than as expressly contemplated in this Section 1.
1.3 HDA’s duties are strictly restricted to the duties expressly provided under this Section 1, including the following:
(a) to hold or procure to be held to HDA’s order all documents evidencing ownership of the Customer’s Products and identify in HDA’s books which Products belong to the Customer;
(b) to procure that all Products are registered in the name of the Customer or HDA or such other Nominee(s) or sub-custodian (or its nominees) (as the case may be) as HDA may appoint in accordance with Clause 2 of Section 1 of Part B;
(c) except to the extent permitted or not prohibited by the SFA or its regulations (including Regulation 26 of the Securities and Futures (Licensing and Conduct of Business) Regulations), to hold and/or procure that any sub-custodian holds Products, if registered in the same name as investments of HDA or the sub-custodian, in an account designated separately from that used for investments of HDA or the sub-custodian (as the case may be);
(d) on receipt of the Customer’s instructions or with the Customer’s authority to make or accept delivery of Products which have been sold, purchased, transferred or otherwise acquired or lent or disposed of by the Customer or its agent, such acceptance or delivery to be made in accordance with the normal practice for transactions of the type concerned;
(e) to use its reasonable endeavours to collect and receive all Related Assets, provided that the Customer acknowledges and accepts that HDA (whether directly or through any delegate or agent) shall have no duty or responsibility but is entitled, if it so chooses to:
(i) exercise or discharge any obligations conferred or imposed by reason of HDA’s holding of the Products or to investigate, participate or take any affirmative action in connection therewith or otherwise;
(ii) send or give notice of any proxy form or other document which HDA may receive in respect of the Products;
(iii) recognize any claim in the nature of a trust or equitable claim by anyone other than the Customer in respect of the Products or any part thereof; or
(iv) otherwise make any notification to the Customer in respect of the Products under custody, or take any other action in relation to the Products under custody;
(f) to credit to the Customer’s Account all income and other payments received by HDA under sub-Clause (e) of this Clause 1.3;
(g) to sign, execute and/or complete such documents, certificates or forms from time to time required for fiscal and taxation purposes in connection with the collection of income from the Products including bonds and note coupons; and
(h) to keep or (to the extent reasonably practicable) procure there to be kept by any sub- custodian or any Nominee appointed by HDA (as the case may be), such books records and statements, in retrievable form, as may be necessary to provide an adequate record of all Products held under custody and transactions carried out by or on behalf of the Customer,
on such terms and conditions, and subject to such fees and charges as determined by HDA for HDA to carry out such duties.
1.4 HDA may refuse to provide the Custodial Services in relation to any Products or assets which HDA deems unsuitable to be held hereunder without giving any reason therefor or being responsible or liable for any Loss thereby occasioned.
1.5 For the avoidance of doubt, in respect of any Products which have underlying assets, HDA does not provide any Custodial Services to the Customer for the underlying assets of such Products.
2. Nominees / Sub-Custodians
2.1 The Customer hereby expressly authorises HDA to utilise one or more Nominee(s) or sub- custodians for the purpose of providing the Custodial Services for the benefit of the Customer and HDA shall use reasonable care in the selection of any Nominee or sub-custodian. In the event that a Nominee is being used, the Customer is deemed to have contracted as principal with such Nominee.
2.2 HDA may utilise the services of a foreign custodian as Nominee or sub-custodian where it deems this to be necessary or appropriate and the Customer hereby expressly consents to such utilisation.
2.3 Where Products are held by a Nominee or sub-custodian, HDA shall separately agree in writing the requirements as may be required under Applicable Laws. Nothing shall, to the fullest extent permitted by law:
(a) prevent or preclude HDA, a Nominee or sub-custodian, each in their sole and absolute discretion, from time to time mutually agreeing to vary, amend or terminate the terms of their agreement with respect to such custody arrangements;
(b) prevent or preclude such variation, amendment or termination taking effect on or after notice to the Customer; and
(c) require that prior written consent of the Customer be obtained for any such variation, amendment or termination.
2.4 The Customer acknowledges and accepts that different settlement, legal and regulatory requirements and different practices relating to the segregation of Products held by a Nominee or sub-custodian may apply. In addition, HDA and any Nominee or sub-custodian may deposit Products with, and hold Products in, any securities depository or other depository on such terms as such systems customarily operate. The Customer agrees that where the context permits, any reference to HDA herein shall also include a reference to its Nominee, sub-custodian and/or any other person appointed by HDA in accordance with this Clause.
3. Custodial responsibilities and power
3.1 HDA shall be entitled to do, subject and on receipt of the Customer’s instructions to the contrary, any act or refrain from doing any act unless (as the case may be) prohibited or required by Applicable Laws, in relation to any Products custodised with HDA, which under the terms of the Customer’s agreement with HDA, HDA is not specifically (as the case may be) either specifically prohibited or required to do.
3.2 Without prejudice to the foregoing, the Customer hereby specifically instructs HDA that, until it receives written instructions to the contrary, whenever the Customer purchases or subscribes for Products through HDA, and the sums standing to the credit of the Customer’s Account are sufficient to satisfy the purchase price of the Products purchased, HDA is to withdraw from the Customer’s Account such sum as is equal to the purchase price and appropriate such sum to HDA in satisfaction of the Customer’s obligation to pay the purchase price, or where the shares are contra sold, to use such sums for any contra losses incurred (if any).
3.3 Also without prejudice to any of the foregoing, any amount payable by the Customer pursuant to the Custodial Services hereunder shall be payable to HDA or its Nominees, sub-custodians or agents, as the case may be, on demand and may be deducted from the Products or such Account as HDA deems appropriate.
4. Liability
4.1 HDA shall not be responsible for or liable to the Customer for any Loss suffered or incurred by the Customer, or profit or advantage of which the Customer may be deprived, which arises from or in connection with:-
(a) the manner in which HDA holds the Products hereunder or deals with monies or Related Assets received or intended to be received in connection herewith;
(b) the loss, theft or destruction of, or any damage to, any of the Products or certificates relating thereto;
(c) any act or omission of HDA, or the performance or non-performance of HDA’s duties hereunder, except insofar as the same arises as a result of the fraud or wilful default of HDA;
(d) any Corporate Action(s) which the Customer participates in; or
(e) any Corporate Action(s) which the Customer is unable to participate in.
4.2 While HDA will use reasonable care in the selection of any Nominee or sub-custodian, HDA shall not be responsible for or liable to the Customer for any Loss suffered or incurred by the Customer or profit or advantage of which the Customer may be deprived, which arises from or in connection with:
(a) the insolvency of any sub-custodian or Nominee; or
(b) any act or omission of any sub-custodian or Nominee.
4.3 HDA shall not be responsible or liable for any act, omission or insolvency of any entity providing central depository, clearing and/or settlement facilities.
4.4 The Customer acknowledges and agrees that HDA shall be under no duty to supervise compliance by the Customer with any restrictions on the investment powers of the Customer.
4.5 HDA shall not be liable or have any responsibility to the Customer for any Loss, damage, costs or delay whatsoever suffered or incurred by the Customer (including any Loss or delay in the performance of any of HDA’s duties or obligations, or execution of any Instructions) caused by any Event Outside its Control.
4.6 The Customer agrees and acknowledges that the rights generally available or accruing to the holder of any Products may under the laws of foreign jurisdictions, not be available to or accrue to the benefit of or be offered to the Customer and the Customer agrees that in such circumstances, HDA shall not be responsible to inform the Customer, inquire, investigate, take any action or make any demands in relation to such rights and the Customer shall have no recourse against HDA for any claims whatsoever arising out of or in connection with or in relation to such rights.
4.7 These limitation of liability provisions are in addition to all other limitation of liability provisions in this Agreement.
5. Comingling of Customer’s Products and Records
5.1 HDA shall keep records (or shall procure that such records will be kept) and hold all Products of the Customer held by or through HDA hereunder in a way that makes it clear that Products do not belong to HDA or any Nominee or sub-custodian. Where Products in HDA’s custody are held by a Nominee or sub-custodian, HDA will take reasonable steps to ensure that the records of the relevant entity make it clear that the investments are held by or on HDA’s behalf for the Customer and that they do not belong to HDA or any such Nominee or sub-custodian. The purpose of this is to make clear, in the event of the failure of any such entity that the assets are held on behalf of third parties and are not available to creditors of that entity if it fails. However, it cannot be guaranteed that there would be no loss of assets in the event of such a failure. Where the assets are held by a Nominee or sub-custodian outside Singapore, it may not be possible under the relevant law of that country for those assets to be separately identifiable from the assets of the Nominee or sub-custodian or from HDA’s assets and accordingly there may be a greater risk of loss in the event of a failure of any such Nominee or sub-custodian.
5.2 The Products held by or through HDA hereunder may also be registered collectively with other Products both of HDA and/or other customers of HDA in the same name and where so registered, the Customer’s entitlements may not be identifiable by separate certificates or other physical documents of title or equivalent electronic records (although HDA and/or its delegate will maintain records such that it will be readily apparent the degree of the Customer’s interest in the commingled Products so collectively held but on the express understanding and agreement of the Customer that where such commingling and aggregation of the Products of the Customer and other persons result in entitlements to Related Assets which otherwise without such commingling or aggregation would not have accrued to the Products (the “Bonus Related Assets”), HDA has full discretion as to the allotment of such Bonus Related Assets as amongst its customers, (including the Customer as it deems fit) and should HDA, any Nominee or sub- custodian default, any shortfall in the Products registered in that name may be shared pro rata among all customers of HDA or the sub-custodian or Nominee whose Products are so registered.
6. Customer’s Rights in respect of Customer’s Products and Corporate Actions
6.1 The Customer acknowledges and agrees that registration of the Customer’s Products in the name of HDA or such other Nominee(s) or any sub-custodian (as the case may be) as HDA may appoint in accordance with Clause 2 above may mean that the Customer will lose incentives and shareholder or Product holder benefits (in particular any voting rights, notices and rights of attendance at general meetings) attaching to the Products that the Customer would otherwise enjoy if the Products were registered in the name of the Customer.
6.2 Further, HDA accepts no duty to notify the Customer of any impending Corporate Action relating to any of the Products of the Customer and the Customer is to keep itself informed of the same. In particular, HDA will not notify the Customer of notices for general or other meetings of shareholders and will not seek the Customer’s instructions as to how to exercise voting rights (if any) attached to Products. Where HDA does receive voting instructions from the Customer in due time, HDA may use reasonable efforts to give effect to the same. However, where the Customer’s Products are commingled and pooled with those of other HDA customers, this may not be possible and HDA reserves the right to vote the entirety of the commingled Products consistently with the instructions of all affected customers giving HDA voting instructions in time in accordance with the majority amongst them in number of products held.
6.3 The Customer agrees to provide HDA with the Customer’s instructions in relation to a Corporate Action in due time before any relevant deadline set by the relevant company or the relevant issuer or their registrars for HDA to determine in good faith whether it is feasible to act on the same. Due time refers to reasonable time before the deadline set by the relevant company or the relevant issuer or their registrars to process instructions on a good faith basis only in relation to the Corporate Action. If HDA does not, for any reason, receive instructions from the Customer by the deadline above in relation to a Corporate Action, HDA will act or take no action as it deems fit with respect to such Corporate Action. Sometimes the terms of a Corporate Action will require an election to be made on behalf of HDA’s or its sub-custodian’s or its Nominee’s entire holding in a company or in the tokens on an ‘all or nothing’ basis. In these circumstances, HDA may not be able, even if it wishes to, to act in accordance with the instructions of the Customer even if received in due time. HDA reserves the right in these circumstances not to comply with the Customer’s instructions. Some Corporate Actions permit a registered holder to subscribe for additional shares in a company or additional tokens (as the case may be). In these cases, applications to subscribe may be made on behalf of HDA’s or its sub-custodian’s or its Nominee’s entire holding in that company or the tokens. The additional shares or tokens will be allocated to HDA, the sub-custodian or the Nominee on the basis of that holding. Where applicable, HDA will then allocate the shares or tokens received amongst all the customers involved on a pro-rata basis. The shares or tokens allocated to the Customer may be different to what the Customer would have received if the Products had been held by the Customer directly. It may be that on some occasions no shares or tokens are allocated to the Customer. The Customer acknowledges and accepts that this is a consequence of HDA holding the Customer’s Products on a commingled basis with other customers’ products.
6.4 Where the Customer’s Products are commingled and pooled with those of other HDA customers, the Customer acknowledges and agrees that the options available in relation to the Products during a Corporate Action may be different from what the Customer would have received if the Products were held directly. The Customer agrees that HDA reserves the right and discretion to apportion the total entitlement received in respect of the pooled Products between the Customer and the other customers involved. In the event that there is balance after apportionment resulting in a fractional entitlement, the Customer agrees to waive his right to such fractional entitlement and to abandon the same in favour of HDA and such fractional entitlement may be appropriated by HDA to and for itself.
7. Statements and Information
HDA shall provide or procure the provision to the Customer on a best efforts basis with such reports and statements concerning the Customer’s Products and at such intervals as agreed between them from time to time. HDA may (but is not obliged to), on the request of the Customer and subject to payment by the Customer of such fee as may be determined by HDA, furnish to the Customer such information in respect of the Customer’s Products as the Customer may reasonably request.
8. Return of Products Custodised
The Customer shall not have any right to specific Products custodised with or through HDA, but will be entitled, subject to this Section 1 and to any restrictions on delivery of the Product, to delivery by HDA of Products of the same class and denomination, and which rank pari passu with those accepted by HDA as being the Products so custodised, subject always to any capital reorganisation or share exchange or Product exchange which may have occurred. Subject to Applicable Laws, such delivery may be to the Customer or any third party specified by the Customer.
9. Authorisations
Without prejudice to Clauses 1, 3 and 10 of Section 1 of Part B, HDA is authorised (but not obliged), either by itself, through a Nominee or sub-custodian (if so, subject to Clause 2 above) or otherwise, and whether in Singapore or elsewhere to do any lawful act or thing which in the discretion of HDA is necessary to preserve the integrity of the Products custodised and/or any Account and/or to protect the reasonable interests of the Customer and/or HDA.
10. Customer Primarily Liable
Notwithstanding that the Customer may as between itself and a third party be effecting transactions on and/or in respect of any part or all of the Products custodised for and on behalf of such third party, as between the Customer and HDA, the Customer shall be deemed to be, and is, transacting as sole principal. The Customer acknowledges, undertakes and agrees to be always primarily liable for such transactions in all or part of the Products custodised.
11. Instructions
11.1 HDA need only act on Instructions (oral or otherwise) from the Customer in respect of any Account or any part or all of the Products custodised. HDA shall not be required to act in accordance with any Instruction from the Customer which purports to dispose of or deal with Products or other property which are in fact not held in any Account and/or which are not in fact Products custodised.
11.2 HDA shall only be required to act on or effect any Instruction from the Customer within a reasonable time. For the avoidance of doubt, subject to Clause 20 of Section 1 of Part B, in the event that the Customer wishes to withdraw any part or all of the Products custodised, the Customer shall give at least three (3) Business Days notice, or such other minimum notice period as HDA may otherwise specify, to HDA prior to such withdrawal.
12. Holding of Products on an Aggregate or Omnibus Basis
The Customer acknowledges and consents to the fact that any Products belonging to the Customer held with HDA, an Intermediary or Nominee for any reason whatsoever may (to the extent that the same has not been the subject of any permitted borrowing) be held with Products held by HDA for itself (where not prohibited or not otherwise required by law) or other customers of HDA, the Intermediary or Nominee on an aggregate or omnibus basis. This may in some instances result in prejudice to the Customer and the Customer accepts and consents to this. HDA shall not be responsible or liable for any Loss suffered or incurred by the Customer.
13. Instructions from Third Party
Any instructions (oral or otherwise) purported to be given by any person other than the Customer, need not be acted on by HDA but HDA is authorised to act on any and all such instructions which HDA in good faith has reason to believe is from the Customer as soon as such instructions have been received by HDA without requiring written confirmation thereof. HDA shall not be responsible for or liable for any Loss incurred by the Customer as a result of HDA so acting.
14. Representations, Warranties and Undertakings
The Customer represents, warrants and undertakes that:
(a) the Customer is the legal and beneficial owner of the Products custodised;
(b) the Products custodised are fully paid up and paid for, in the required or regular form and in good delivery order; and
(c) there is no defect in title, security interest or encumbrance affecting the Products custodised.
15. Security
15.1 In addition and without prejudice to the foregoing, all Products custodised and the Related Assets accruing in respect thereof are hereby charged by way of first fixed charge to HDA as continuing security for all of the Customer’s liabilities to HDA whether the same accrue under or pursuant to the Account or otherwise. Save for the charges mentioned in this Clause, the Customer shall not create nor shall the Customer allow to be created any security interest of whatsoever nature over any part or all of the Products custodised without the prior consent in writing of HDA.
15.2 If at any time there are Related Assets to the Products which have been charged or assigned to HDA hereunder, the Customer undertakes, as and when required by HDA, to further execute forthwith such documents and to give such Instructions as to effect the creation, in favour and at the option and discretion of HDA, of a security interest by way of mortgage, assignment, charge, pledge, encumbrance, lien or other security interest on such Related Assets.
15.3 The Customer agrees that section 21 of the Conveyancing and Law of Property Act 1886 of Singapore (“CLPA”) shall not apply to the security created under this Clause 15 and that HDA may exercise the power of sale conferred on mortgagees by the CLPA (as varied and extended by these Clauses) free from the restrictions imposed by section 25 of the CLPA. The security shall become immediately enforceable and the power of sale and other powers conferred by section 24 of the CLPA (as varied and extended by these Clauses) shall be immediately exercisable at any time after the Customer shall have failed to pay or satisfy when due and in the manner provided or on demand any part of the Outstanding Balance and at any time the Customer is in breach of any of the terms and conditions under this Agreement and the Application Form.
15.4 The Customer shall, when required by HDA, execute such other transfers or documents which HDA may from time to time require for perfecting its title to the same or enabling it to vest the same in itself or its Nominees or in any purchaser.
15.5 The Customer acknowledges and agrees that any Intermediary (including any sub-custodian) and any depository who holds the Customer’s assets may also have a security interest or lien over, or right of set-off in relation to such assets.
16. On-Lending and Creation of Further Security and Use Rights
16.1 Notwithstanding any provision to the contrary in this Agreement or the terms in the Application Form as may be revised from time to time as applicable to the Customer or the terms of any collateral or charge documentation with respect to the Customer’s Products and other property, the Customer agrees that with respect to all the Customer’s Products and other property that now or in the future is in HDA’s possession and/or control (whether posted as collateral to HDA or otherwise), HDA and/or its sub-custodians may: (a) on a title transfer basis borrow, on-lend and/or deliver the said Products and other property as principal as if it were the owner thereof to third parties; and/or (b) create over the said Products and other property any encumbrance in favour of a third party by way of security, re-security, charge, re-charge, pledge, re-pledge, hypothecation, re-hypothecation or otherwise.
16.2 The Customer agrees in connection with the foregoing that no compensation will be payable to the Customer in connection with the exercise of HDA’s rights under this Clause 16 and that HDA is the sole beneficiary of any fee or commission that HDA may earn from any exercise of HDA’s rights under this Clause 16.
17. Set-off rights
Without prejudice to any other right which HDA may have whether under law, this Agreement or otherwise, HDA is expressly conferred by the Customer a right to effect a set-off against the Customer’s obligations to HDA whether referable to the Customer’s Account or any money or credit balance in any account of the Customer with HDA or maintained by HDA for the Customer’s benefit (including the trust account HDA is obliged to maintain for the Customer pursuant to HDA’s obligations under the SFA) and including such money sum as HDA may otherwise be obliged to pay to the Customer.
18. Default
In the event that any of the events set out in Clause 14 of Part A occurs, then in addition to the rights set out in that Clause, HDA shall be further entitled to immediately enforce the security created pursuant to Clause 15 of Section 1 of Part B by way of disposing or otherwise dealing with any part or all of the Products custodised using or employing any and all powers granted hereunder or otherwise to a mortgagee or chargee under the laws of Singapore.
19. Fees and Expenses
19.1 In consideration of the Custodial Services provided by HDA hereunder, the Customer shall pay to HDA such fees (exclusive of goods and services or other relevant value added tax) as may be determined by HDA and notified by HDA to the Customer. The Customer shall, on demand, pay to or reimburse (or shall procure payment to or, reimbursement of) HDA for all expenses, including management or supervisory fees, agents’ and other advisers’ fees, disbursements and operating expenses incurred in connection with:
(a) the performance by HDA of its obligations hereunder; and
(b) the enforcement or preservation by HDA of its rights hereunder,
together with any applicable goods and services tax or other tax thereon.
19.2 The Customer hereby authorises HDA, without prior notice to the Customer, to debit the Customer’s Account with, and/or to set-off against any Related Assets, all amounts due or which may become owing by the Customer to HDA hereunder, together with any applicable goods and services or other value added tax, thereon.
20. Contra Losses
The Customer agrees that:
(a) no Products of the Customer custodised by HDA and/or its Nominee(s) or sub-custodians may be withdrawn by the Customer if there are any contra losses outstanding; and
(b) if any contra loss is not paid by the Customer within 10 days or such time as HDA may determine, HDA is entitled to sell such of the Customer’s Products in HDA’s custody as may be necessary to reimburse HDA of such contra loss.
21. Forks
In the event of any changes to the underlying blockchain protocol of any digital tokens or digital assets custodised by HDA resulting in a divergence in the blockchain protocol (a “Fork”), HDA may, in its sole discretion, decide whether or not to support (or whether to cease supporting) either branch of the forked protocol. The Customer acknowledges and agrees that HDA assumes absolutely no liability whatsoever arising from the occurrence of any Fork.
22. Terms Applicable to Customers of a Client Exchange
22.1 The terms in this Clause 22 shall apply to Customers which are customers of an exchange or trade matching platform (each a “Client Exchange”) which has appointed HDA to provide Custodial Services for Products which are listed and traded on the Client Exchange.
22.2 The Customer authorises, and consents for, the Client Exchange to transmit or give Instructions to HDA on the Customer’s behalf pertaining to the Assets Under Custody (the “Authorisation”), and to take such further steps or execute such necessary documents (including without limitation a Power of Attorney) upon request to provide such Authorisation to the Client Exchange.
22.3 HDA shall treat any Instructions transmitted or received from the Client Exchange on the Customer’s behalf as being: (a) authorised by the Customer, and (b) accurate and correct, unless HDA has received notice in writing from the Customer to the contrary prior to acting on such Instructions. HDA shall be fully entitled to rely on or act upon any Instructions given or transmitted to HDA by the Client Exchange on the Customer’s behalf, and shall have no liability to the Customer for any actions taken or omitted to be taken pursuant to any Instructions. HDA shall bear no responsibility for verifying the authenticity, accuracy or correctness of any Instructions transmitted or received from the Client Exchange.
22.4 The Customer authorises, and consents for, the Client Exchange to receive periodic and ad hoc reports, transaction advices and/or statements of account from HDA pertaining to the Assets Under Custody.
22.5 None of HDA, its Affiliates and their respective directors, officers, employees or agents shall be liable to the Customer for any claim, action, loss, damage, cost, or expense arising out of or relating to: (a) the handling of, (b) any action taken or omitted in connection with, or (c) any delay in performing or inability to perform any obligations associated with the Custodial Services.
22.6 None of HDA, its Affiliates and their respective directors, officers, employees or agents shall be liable to the Customer for any indirect, special, market, trading, economic or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused, whether arising under contract, tort (including negligence) or otherwise, including market losses, trading losses or loss of profit incurred by or in connection with the Custodial Services or acting in reliance on the Authorisation, even if advised of the possibility of such damages.
22.7 For the purposes of this Clause 22, “Assets Under Custody” means the Products which are listed and traded on the Client Exchange and the fiat assets which are held by the Custodian for the Customer in an Account.
(Version Date: February 2024)
