1. DEFINITION AND INTERPRETATION
“Bullion” means precious metals including Hong Kong and/or Loco London Bullion. “Business Day” means - (a) in respect of London Bullion means any day on which London Bullion Market is open for business; or (b) in respect of Hong Kong Bullion means any day on which the Chinese Gold & Silver Exchange Society is open for business. “Confirmation” means a written statement dispatched from time to time by China Gold (Hong Kong) Limited to the Client relating to trading and other adjustments relating to the Client’s account with China Gold (Hong Kong) Limited. “Contract” means a contract as may be agreed by the Parties from time to time in respect of the purchase and sale of Bullion pursuant to the terms and subject to the conditions of this Agreement. “China Gold (Hong Kong) Limited” means China Gold (Hong Kong) Limited and its successors in title and assigns who act as a principal in transactions with the Client. “Hong Kong Bullion” means gold or silver be suitable for trading in the Chinese Gold & Silver Exchange Society, unless otherwise agreed by the Parties and stated in the relevant Confirmation. “Loco London Bullion” means gold having a fineness of at least 0.995 and/or silver having a fineness of at least 0.999, both of which shall be valued in U.S. dollars per troy ounce. “Margin” means a deposit as collateral required by China Gold (Hong Kong) Limited to be placed by the Client as a guarantee of performance in trading. “Netting” means an agreement by the Parties to settle their respective delivery and payment obligations on a net basis after the complete or partial off-set of delivery and payment obligations to each other, on any given day, under the terms and subject to the conditions of this Agreement. “Netting Confirmation” means a Confirmation of the results of a Netting transaction. “Parties” means China Gold (Hong Kong) Limited and the Client and “Party” means either of them. “The Client” wherever used shall in the case where the client(s) is/are inpidual(s) include the client(s) and his/their respective executor(s) and administrator(s) and in the case where the client is a sole proprietorship firm include the sole proprietor and his executor(s) and administrator(s) and his or their successor(s) in the business and in the case of a partnership firm include the partners who are the partners of the firm at the time when the client’s said account or accounts are being maintained and their respective executor(s) and administrator(s) and any other person or persons who shall at any time hereafter be or have been a partner of and in the firm and his/their respective executor(s) and administrator(s) and the successor(s) to such partnership business and where the client is a company include such company and its successor(s). “Access Codes” means the Login ID and the User Name. “China Gold (Hong Kong) Limited Mail” means the secured messaging facility operated by China Gold (Hong Kong) Limited for the delivery and receipt of notices. “China Gold (Hong Kong) Limited Web Service” means the electronic trading service provided by China Gold (Hong Kong) Limited under this Agreement comprising the CG Trader, the China Gold (Hong Kong) Limited Mail, the Information contained in the China Gold (Hong Kong) Limited Website and the software comprised in them. “CG Trader” is the electronic trading platform provided by China Gold (Hong Kong) Limited which enables the Client to give electronic instructions to buy and sell bullion and to receive the Information, the China Gold (Hong Kong) Limited Mail and related services.
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“Information” means data, database, quotes, news, research, graphics, drawings, text and other information accessible through the CG Trader, including but not limited to bullion prices and information relating to the bullion market. “Information Providers” means the third parties who provide the Information. “Intellectual Property Rights” means any patents, designs (whether registered or not), trade mark , service mark, copyright, know-how, trade secret, goodwill and any associated or similar rights in each case and in any jurisdiction. “Login ID” means the Client’s personal password, used in conjunction with the User Name to gain access to the CG Trader, the Information, the China Gold (Hong Kong) Limited Mail and other services offered by China Gold (Hong Kong) Limited. “User Name” means the Client’s personal identification used in conjunction with the Login ID to gain access to the CG Trader, the Information, the China Gold (Hong Kong) Limited Mail and other services offered by China Gold (Hong Kong) Limited.
2. CAPACITY 2.1 The Client warrants that in the case of an inpidual, he is of full age and capacity and in the case of a firm or corporation, it is duly constituted and incorporated and has power to enter into this Agreement and such Contracts are and will constitute legal binding and enforceable obligations of the Client. 2.2 The Client hereby acknowledges that in respect of all and any Contracts, he shall be deemed to have entered into the same upon his own judgment and at his sole risk, notwithstanding that he may have been advised by China Gold (Hong Kong) Limited, its executive or staff, and he is further aware that none of the executives and staff of China Gold (Hong Kong) Limited is authorized on behalf of China Gold (Hong Kong) Limited to give any representation or advice. 2.3 The Client further declares and acknowledges that the Client understands the high degree of leverage that is often associated with the Contracts because of the small margin requirements and such high leverage can work against as well as for the Client. Such high leverage can led to large losses as well as gains and the Client is fully aware that under certain market conditions, the Client may find it difficult or impossible to close out a trading position in Bullion and therefore the losses of the Client may not be limited to the Margin which the Client has deposited with China Gold (Hong Kong) Limited.
3. ORDERS AND AGENT 3.1 All orders must be given by the Client to China Gold (Hong Kong) Limited in clear and unambiguous terms and all orders, transactions and instructions shall be subject to the constitution, rules, regulations, customs, usages, rulings and interpretations, from time to time extant or in force of the Chinese Gold & Silver Exchange Society or London Bullion Market Association or other markets concerned, where the orders, transactions and instructions are executed by China Gold (Hong Kong) Limited or the agents of China Gold (Hong Kong) Limited. All transactions under this Agreement shall also be subject to any law, rule or regulation then applicable thereto. 3.2 In the event that any order has been given otherwise than in accordance with clause 3.1, China Gold (Hong Kong) Limited is hereby authorized by the Client to elect without prior notice to the Client either to ignore the order or to execute the order with such modifications or charges as may be necessary to comply with the applicable rules. Orders to execute Contracts may be given in writing or orally (whether by telephone or actual meeting) or through CG Trader whether by Client or his authorized agent or agents, and once given may not be rescinded or withdraw without the written consent or confirmation of China Gold (Hong Kong) Limited. 3.3 The Client agrees and declares that he is fully aware of the risks involved in trading in Bullion, and is also aware that orders given to China Gold (Hong Kong) Limited may, depending on prevailing conditions, fail to be executed (in particular an order to settle any existing Contracts by entering into a matching Contract) and all losses incurred in any Contract shall be borne by the Client. The Client further agrees that China Gold (Hong Kong) Limited shall not be liable for any loss incurred in any Contract or by reason of the manner or timing of execution of any order given by the Client. 3.4 A statement by China Gold (Hong Kong) Limited confirming that an order has been received from the Client or a Contract has been executed for the account of the Client and any statement of account by China Gold (Hong Kong) Limited and signed by its authorized officer shall be conclusive evidence thereof. 3.5 China Gold (Hong Kong) Limited is under no obligation whatsoever at any time to accept any order or enter into any Contract, including but not limited to any matching Contract or any Contract to settle any existing Contract in whole or in part.
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4. MARGIN AND SET-OFF 4.1 The Client shall pay to China Gold (Hong Kong) Limited a deposit and maintain with China Gold (Hong Kong) Limited such money in such amount and in such form and within such time as may be required from time to time by China Gold (Hong Kong) Limited as Margin. 4.2 A minimum deposit prescribed by China Gold (Hong Kong) Limited shall be paid by the Client prior to opening all new accounts with China Gold (Hong Kong) Limited. The Client shall maintain a necessary Margin with China Gold (Hong Kong) Limited as required for all trading transactions in order to ensure performance on his Contracts commitments. No previous Margin requirement shall limit China Gold (Hong Kong) Limited’s right to vary Margin requirement (increase or decrease) for existing positions as well as new positions after the date of such change. Any failure by the Client to meet calls for Margin by China Gold (Hong Kong) Limited shall entitle China Gold (Hong Kong) Limited to cancel, close by off-set or any other form of liquidation or all open Contracts in any account of the Client. 4.3 All monies paid to China Gold (Hong Kong) Limited whether as deposit, Margin for any purpose whatsoever shall not be entitled to earn interest from China Gold (Hong Kong) Limited, except that China Gold (Hong Kong) Limited shall be entitled to all interest and other benefits derived from the Client's Margin deposit. 4.4 The issue of China Gold (Hong Kong) Limited’s Margin receipt shall be conclusive acknowledgment of the deposit of the specified amount of Margin in the Client’s account(s) with China Gold (Hong Kong) Limited and shall serve no other purpose whatsoever. 4.5 The Client agrees to maintain such margin as China Gold (Hong Kong) Limited may from time to time at the discretion of China Gold (Hong Kong) Limited require. The Client also agrees to pay immediately on demand any amount owing with respect to any of the Client’s account. Such demand shall be treated as conclusively and validly made with immediate effect even if the Client cannot be contacted personally or message has been left for the Client by telephone or in writing. Against a position in any Contracts, the Client will give China Gold (Hong Kong) Limited instructions to cover or furnish China Gold (Hong Kong) Limited with all necessary delivery documents, and in default thereof, China Gold (Hong Kong) Limited may without demand or notice cover the liability in the manner deemed most appropriate by China Gold (Hong Kong) Limited, or if an order to buy in or sell such Contracts cannot be executed under prevailing conditions, China Gold (Hong Kong) Limited may take any other action. China Gold (Hong Kong) Limited shall deem appropriate. The Client understands that the Client will be responsible for all the expenses of China Gold (Hong Kong) Limited in connection with the above and that China Gold (Hong Kong) Limited will not be liable for any loss that may thereby be incurred. 4.6 China Gold (Hong Kong) Limited shall have the right (i) whenever in China Gold (Hong Kong) Limited’s sole discretion, China Gold (Hong Kong) Limited shall consider it necessary for the protection of China Gold (Hong Kong) Limited, because of Margin requirements or otherwise, or (ii) in the event that a petition in bankruptcy, or a petition for the appointment of a receiver, is filed by or against the Client, or (iii) when an attachment is levied against the account(s) of the Client with China Gold (Hong Kong) Limited , or (iv) in the event of the death or judicial declaration of incompetence of the Client, to: (a) satisfy any obligation the Client may have to China Gold (Hong Kong) Limited (either directly or by way of guaranty or suretyship) out of any property belonging to the Client in the custody or control of China Gold (Hong Kong) Limited, (b) sell any or all existing long in the Client’s account(s), (c) buy any or all existing which may be short in such account(s), and (d) cancel any outstanding orders in order to close the account or account(s) of the Client, all without demand for Margin or additional Margin, notice to the Client, the Client’s heirs, executors, administrators, legatees, personal representatives or assigns, of sale or purchase or other notice or advertisement and whether or not the ownership interest shall be solely the Client’s or jointly with others. Any sale of existing long in an account or purchase of existing short in an account may be made according to the judgement of China Gold (Hong Kong) Limited and at the discretion of China Gold (Hong Kong) Limited either by direct sale or purchase in the same Contract or according to the judgement of China Gold (Hong Kong) Limited and at the discretion of China Gold (Hong Kong) Limited on any exchange or other market where such business is then usually transacted. It is understood that, in all cases, a prior demand or call, of prior notice of the time or place of sale or purchase shall not be considered a waiver of the right of China Gold (Hong Kong) Limited to sell or to buy without demand or notice as herein provided, that the Client shall at all times be liable for the payment of any debit balance owing in such account(s) with China Gold (Hong Kong) Limited upon demand, and that in all cases, the Client shall be liable for any deficiency remaining in such account(s) in the event the liquidation thereof in whole or in part by China Gold (Hong Kong) Limited or by the Client. When such combination, set-off or transfer requires the conversion of one currency to another, such conversion shall be at a rate of exchange determined conclusively by China Gold (Hong Kong) Limited on the basis of the then-prevailing market rates of exchange between the two currencies.
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4.7 Until any amount owed to China Gold (Hong Kong) Limited has been paid in full, China Gold (Hong Kong) Limited shall hold as security and subject to a general lien in China Gold (Hong Kong) Limited’s favor, all money of the Client held from time to time by China Gold (Hong Kong) Limited, whether held for safe-keeping or otherwise. 4.8 All money or other property received by China Gold (Hong Kong) Limited from the Client or from any other person for the account of the Client shall be held by China Gold (Hong Kong) Limited.
5. DEALINGS 5.1 China Gold (Hong Kong) Limited shall not be liable for any act, default, negligence, omission or neglect on the part of any broker, agent or correspondent. 5.2 The Client recognizes that Bullion trading spot prices may vary from institution to institution and from minute to minute and that it may prove impossible to effect trades even at advertised prices. Thus, the Client agrees to accept that such prices as China Gold (Hong Kong) Limited may offer him from time to time being the best price then available. 5.3 The Client acknowledges that such laws, regulations, practices and customs may require the disclosure of information relating to the Client’s accounts. The Client hereby irrevocably authorizes China Gold (Hong Kong) Limited, without further notice to or consent from the Client, to disclose to the relevant authorities all such information and to provide such authorities with all such documents or copies thereof in China Gold (Hong Kong) Limited’s possession as may be required for this purpose, including without limitation the name and the ultimate beneficial identity of the Client, and the financial position of the Client for the time being, as may be known to China Gold (Hong Kong) Limited. The Client shall not in any way hold China Gold (Hong Kong) Limited liable for any consequences arising out of such disclosure, and the Client shall reimburse China Gold (Hong Kong) Limited on demand for all costs and expenses, including legal costs, incurred by China Gold (Hong Kong) Limited in complying with requests for such disclosure. 5.4 This Agreement shall be continuous, and shall cover inpidually and collectively all accounts which the Client may open from time to time with China Gold (Hong Kong) Limited. Each Bullion Contract shall be governed by the terms and conditions of this Agreement and the relevant Confirmation, unless otherwise agreed by the Parties. 5.5 Each Confirmation shall supplement and form a part of this Agreement and all the terms are subject to the conditions of this Agreement and all Confirmations, and their amendments, constitute a single agreement between the Client and China Gold (Hong Kong) Limited.
6. MARGIN 6.1 China Gold (Hong Kong) Limited shall have a lien on the money carried by and/or with it in any account for the Client or otherwise in China Gold (Hong Kong) Limited’s possession for whatsoever purpose including safekeeping as security for all debit balances in any of his account(s) and as security for all his liabilities accrued due or contingent to China Gold (Hong Kong) Limited whether as principal, guarantor, surety or otherwise and as security against any other liability of the Client howsoever the same may arise. 6.2 China Gold (Hong Kong) Limited is specifically authorized to transfer such amount from the Margin deposited with it by the Client without call or notice as may be necessary to cover all debit balances which may arise in his account(s) with China Gold (Hong Kong) Limited. 6.3 China Gold (Hong Kong) Limited is specifically authorized to transfer excess funds available in the Client’s trading account(s) or any other accounts with China Gold (Hong Kong) Limited to the Client’s Margin account(s) without any call or notice and utilize the same as Margin thereafter.
7. ADVANCES 7.1 An interest shall be chargeable on any amount due to China Gold (Hong Kong) Limited and remaining outstanding at the prevailing interest rate quoted by major participants or bankers and selected by it in the market of spot gold bullion trading. 7.2 Anything herein shall not be construed as binding China Gold (Hong Kong) Limited to make any advance to the Client as aforesaid nor shall prejudice any of the rights and remedies of China Gold (Hong Kong) Limited against the Client or any other persons under this Agreement, the Contracts or otherwise conferred by law, equity or usage.
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8. QUOTING AND EXECUTION ERRORS If quoting and/or execution errors occur, which may include, but are not limited to, a dealer’s mistype of a quote, a quote or trade which is not respresentative of fair market prices, an erroneous price quote from a Client, such as but not limited to a wrong big figure quote or an erroneous quote due to failure of hardware, software or communication lines or systems and/or inaccurate external data feeds provided by third-party vendors, China Gold (Hong Kong) Limited will not liable for the resulting errors in account balances. In addition, orders must be placed allowing sufficient time to execute, as well as, sufficient time for the system to calculate necessary margin requirements. The execution or orders placed too close to prices, which would trigger other orders or a margin alert, resulting balance, and/or positions in the account due to the system not having been allowed sufficient time to execute and/or calculate accordingly. The foregoing list is not meant to be exhaustive and in the event of a quoting or execution errors, China Gold (Hong Kong) Limited reserves the right to make the necessary corrections or adjustments for the account involved. Any dispute arising from such quoting or execution errors will be resolved by China Gold (Hong Kong) Limited in its sole and absolute discretion. Client agrees to indemnify and hold China Gold (Hong Kong) Limited harmless from all damages or liablility as a result of the foregoing.
9. DEFAULT 9.1 For the purpose of this Agreement and for any Contract, any of the following events shall constitute an event of default: (a) Any delay or default by the Client hereunder or under the terms of any Contract. (b) In the case of an inpidual Client or a Client’s firm, the Client or any of its constituent partners: i) dies; ii) commits any act of bankruptcy, or a petition for bankruptcy having been filed against him; or iii) becoming insane or otherwise losing his full capacity to enter into agreements or Contracts in general. (c) In the case of a corporate Client, the winding-up or liquidation of the Client or any event, resolutions, meeting, petition or order which may lead to such winding-up or liquidation. (d) In the case of all Clients: i) the appointment of a receiver over any of the Client’s assets or the Client suffering any levy or execution thereon; ii) the Client shall for any reason fail or cease to pay any of his or its debts as and when they fall due or mature; iii) the Client has failed to pay any sum due to China Gold (Hong Kong) Limited under this Agreement and/or any Contract; iv) the Client has breached any terms or provisions of this Agreement and/or any Contract; v) China Gold (Hong Kong) Limited has received notice of dispute as to the validity of any order or instruction from the Client and/or any Contract; vi) the continued performance of any Contract or this Agreement shall become illegal or has been declared by any governmental authority to be illegal; vii) if at any time the prevailing rate of exchange applicable to the currency concerned under any Contract shall have moved adversely to the position of the Client and China Gold (Hong Kong) Limited determines, at its absolute discretion, that the Margin which the Client has deposited with China Gold (Hong Kong) Limited is inadequate; viii) a situation shall have arisen or continued which China Gold (Hong Kong) Limited, at its absolute discretion, determines may jeopardize the position of China Gold (Hong Kong) Limited in relation of any Contract and require China Gold (Hong Kong) Limited to take such action as may be necessary for the protection of China Gold (Hong Kong) Limited; or ix) there has been proposed or implemented any composition between the Client and his or its creditors. 9.2 Upon the happening of any event of default, all the rights and remedies of China Gold (Hong Kong) Limited shall automatically become exercisable without the need of any notice being given to the Client, including but not limited to all powers of set-off and consolidation of accounts and appropriation of spot Bullion from the Client’s account(s), or sale thereof. 9.3 In exercising any of its rights and remedies as aforesaid, China Gold (Hong Kong) Limited may take any position in respect of the Client’s account (including but not limited to the price of settlement) in such manner as China Gold (Hong Kong) Limited may determine at its absolute discretion and the Client irrevocably appoints China Gold (Hong Kong) Limited as its agent and attorney in respect of such exercise of such rights and remedies. China Gold (Hong Kong) Limited shall in no way be liable for any loss or damage arising from the exercise of any of its rights and remedies as aforesaid.
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10. FORM OF ORDERS AND INSTRUCTIONS 10.1 China Gold (Hong Kong) Limited shall be entitled to rely on any instructions, directions, notice or other communication which China Gold (Hong Kong) Limited believes to be from a person authorized to act on the Client’s behalf. 10.2 The Client may give instruction by telephone or in writing and must quote the Client’s account number and account name. 10.3 In the event that the Client fails to pay the necessary Margin or any part thereof, China Gold (Hong Kong) Limited reserves its full right to liquidate the position subject to the adverse market condition at the absolute discretion of China Gold (Hong Kong) Limited. The Client shall indemnify China Gold (Hong Kong) Limited and hold China Gold (Hong Kong) Limited harmless from and against losses, costs and expenses (including legal costs) suffered or incurred by China Gold (Hong Kong) Limited in respect of such liquidation; or (i) as a result of any closing out of the position of the Client and the exercise by China Gold (Hong Kong) Limited of any right as a result of thereof, (ii) China Gold (Hong Kong) Limited’s entering into and/or the performance of any Contract; and (iii) any instruction or order of the Client, any services rendered to the Client, or any actions taken pursuant to the instructions or directions of the Client.
11. CG TRADER 11.1 The Client agrees that he shall be the only authorized user of the CG Trader. The Client shall be wholly and solely responsible for the confidentiality, security and use of the Access Codes issued to him by China Gold (Hong Kong) Limited. 11.2 The Client acknowledges and agrees that he shall be wholly and solely responsible for all instructions entered through the CG Trader using the Access Codes (whether authorized by him or not). Neither China Gold (Hong Kong) Limited nor any of its officers, employees or agents shall incur any liability for the handling, mishandling or loss of any instruction. The Client shall indemnify China Gold (Hong Kong) Limited upon demand against any loss, damage, costs, disbursements and liabilities that China Gold (Hong Kong) Limited may incur or suffer of any instructions entered through the CG Trader. 11.3 The Client further acknowledges and agrees that, as a condition of using the CG Trader to give instructions, the Client shall immediately notify China Gold (Hong Kong) Limited if: (a) an instruction has been placed through the CG Trader and he has not received an order number or have not received an accurate acknowledgement of the instruction or of its execution (whether by hard copy, electronic or verbal means); (b) he has received acknowledgement (whether by hard copy, electronic or verbal means) of a transaction which he did not instruct or any similar conflict; (c) he becomes aware of any unauthorized use of his Access Code; or (d) he has difficulties with regard to the use of the CG Trader. 11.4 The Client agrees to pay all subscription and services fees, if any, that China Gold (Hong Kong) Limited may charge him for the CG Trader and agrees that such fees may be charged without notice. 11.5 The Client expressly agrees that subject to clause 11.6 below, China Gold (Hong Kong) Limited may communicate with or give notice to the Client through the CG Trader and that any such notice or communication delivered to the Client by China Gold (Hong Kong) Limited electronic devices through the China Gold (Hong Kong) Limited Mail or otherwise shall be deemed to have been received at the time of transmission of the message to him. 11.6 The Client acknowledges and agrees that although he may be able to access pro forma confirmation and statement of accounts through the CG Trader, only the daily and monthly statements of accounts issued by China Gold (Hong Kong) Limited shall be conclusive and binding. 11.7 The Client acknowledges and agrees that China Gold (Hong Kong) Limited may disclose the Client’s electronic communications to the same extent. China Gold (Hong Kong) Limited may disclose other information about him or relating to his account as provided elsewhere in the Client Agreement. 11.8 The Client understands and accepts that China Gold (Hong Kong) Limited may at time in its sole discretion and without prior notice to the Client, suspend, prohibit, restrict or terminate the Client’s access to the CG Trader and his ability to trade. The closing of the Client’s account by China Gold (Hong Kong) Limited will not affect the rights and/or obligations of either party incurred prior to the date the account is closed.
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11.9 Trade Instructions (a) The Client may enter trade instructions through the CG Trader. The giving of a trade instruction with China Gold (Hong Kong) Limited (whether by electronic means or otherwise) does not guarantee execution of an order. The Client understands that neither China Gold (Hong Kong) Limited nor any of its officers, employees or agents shall be responsible for any order that is not executed. (b) Each trade instruction given by the Client shall include the details and comply with the limitations as specified by China Gold (Hong Kong) Limited and notified to the Client from time to time through the Internet. China Gold (Hong Kong) Limited shall have no obligation to accept any trade instruction which does not comply with the limitations specified by China Gold (Hong Kong) Limited, but may do so in its discretion. Acceptance of any such nonconforming instruction shall not obligate China Gold (Hong Kong) Limited to accept any subsequent nonconforming instructions. (c) China Gold (Hong Kong) Limited may refuse to accept and/or carry out any trade instruction without being obliged to give any reason or reasons for such refusal. For the avoidance of doubt, China Gold (Hong Kong) Limited may reject a trade instruction for any reason whatsoever, including but not limited to the following:- i) The trade instruction does not comply with the limitations and requirements set forth in Clause 11.9 (b) above. ii) The price published in the China Gold (Hong Kong) Limited Website shall have expired or has been withdrawn. iii) The terms of the trade instruction cannot be determined with certainty by China Gold (Hong Kong) Limited. iv) There is lack of sufficient funds in the Client’s account to settle the transaction. (d) A trade instruction which for any reason, including failure of the CG Trader to transmit such instruction, is not received by China Gold (Hong Kong) Limited in a manner in which it can be processed shall be deemed rejected by China Gold (Hong Kong) Limited. (e) China Gold (Hong Kong) Limited shall not be deemed to have received the Client’s trade instructions unless and until the Client is in receipt of China Gold (Hong Kong) Limited’s message acknowledging receipt, either electronically or by hard copy. Receipt of the Client’s trade instructions, however, does not guarantee such trade instructions will be executed by China Gold (Hong Kong) Limited. (f) The Client agrees to review every order before entering it as it may not be possible to cancel his instructions once given. The Client may request to cancel or amend his instructions but China Gold (Hong Kong) Limited is not obliged to accept any such request. The Client acknowledges that instructions may be cancelled or amended only before execution. In the case of full or partial execution of the Client’s cancelled instruction, the Client accepts full responsibility for the executed transactions and China Gold (Hong Kong) Limited shall incur no liability in connection therewith. (g) The Client acknowledges and agrees that if the mode of communication used by him in the course of the CG Trader becomes temporarily unavailable, he can during such period continue to operate his account subject to China Gold (Hong Kong) Limited’s right to obtain such information regarding the verification of the Client’s identity as China Gold (Hong Kong) Limited may from time to time think fit. (h) The Client further acknowledges and agrees that none of the Information Providers shall be a party to, nor shall it have any obligations under or with respect to, any transaction (whether entered electronically or otherwise) between China Gold (Hong Kong) Limited and the Client. 11.10 No Warranty or Guarantee (a) The Client acknowledges and agrees that the CG Trader is provided to him on an “as is” basis and that the use of the CG Trader is at his sole risk. The Client accepts that neither China Gold (Hong Kong) Limited nor the Information Providers make any warranty of any kind whatsoever relating to the CG Trader (including any Information furnished through the CG Trader and whether those prices contained therein are reflective of the foreign exchange market generally), express or implied, including without limitation, non-infringement of third party rights or merchantability or fitness for any particular purpose or use. (b) The Client acknowledges that owing to market volatility and possible delay in the data transmission process, the data may not be real-time market quotes for the relevant currencies. The Client acknowledges that China Gold (Hong Kong) Limited has no independent basis to verify or contradict the accuracy or completeness of the Information provided. No recommendation or endorsement from China Gold (Hong Kong) Limited shall be inferred from the Information provided. (c) The Client understands that neither China Gold (Hong Kong) Limited nor any of its agents or the Information Providers guarantee the timeliness, sequence, accuracy, continuity, promptness or completeness of the Information.
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12. STATEMENT AND REPORTS 12.1 Each member of China Gold (Hong Kong) Limited’s staff whether employee or agent is hereby expressly authorized to communicate with the Client at his place of business or residence with reference to any of his account or accounts with China Gold (Hong Kong) Limited or any existing or future transaction with China Gold (Hong Kong) Limited for his account(s). 12.2 Reports, Confirmation, notices and any other communications may be transmitted to the Client (who, in the case of a joint account without nominating a person thereof will be deemed for these purposes to be the person whose first name first appears in the signature card) at the address, or telephone or fax number given herein, or at such other address of telephone or fax number as the Client hereafter shall notify China Gold (Hong Kong) Limited in writing, and all communications so transmitted, whether by mail, telephone, facsimile, messenger or otherwise, shall be deemed transmitted when telephone or when deposited in the mail, or when fax is transmitted, or when received by a transmitted agent, whether actually received by the Client or not. The Client accepted full responsibility or all consequences arising out of any failure to notify China Gold (Hong Kong) Limited of any necessary alternation on his particulars kept in the records of China Gold (Hong Kong) Limited. 12.3 Confirmations of the execution of the Client’s orders and statements of the Client’s account(s) shall be conclusive evidence and deemed to be accepted if not objected to in writing by the Client directed to the address of China Gold (Hong Kong) Limited stated therein (or such other address communicated in writing by China Gold (Hong Kong) Limited) within two working days after transmitted thereof to the Client, by mail or otherwise. 12.4 In the event of a dispute or difference arising between the two Parties, the Client accepts and agrees that copies of China Gold (Hong Kong) Limited’s trading records shall be conclusive proof of the truth of the contents thereof and shall be admissible in any court of law or arbitration without further or proper proof thereof. 12.5 China Gold (Hong Kong) Limited will not be liable to the Client for any loss or damage due to any delays in the transmission of orders due to breakdown or failure of transmission of communication facilities, or any other causes beyond the reasonable control or anticipation of China Gold (Hong Kong) Limited.
13. CHARGES AND COMMISSIONS 13.1 Debit balances in the Client’s account(s) shall be charged with such reasonable charges as China Gold (Hong Kong) Limited may make to its Clients generally to cover its facilities and extra services (including all account administration costs, costs of collection and reasonable legal fees). The Client shall promptly settle, upon demand, all liabilities outstanding to China Gold (Hong Kong) Limited. 13.2 China Gold (Hong Kong) Limited shall be entitled to charge or demand payment from Client and the Client agrees to pay upon demand at any time whether prior to or after execution of any order or orders commission at such rate or rates as China Gold (Hong Kong) Limited shall specify from time to time in respect of each Contract, and Custodian Fee, or the storage and miscellaneous charges and insurance for Bullion purchase or agreed to be purchase under any Contract, or any account administration costs or other costs at such rate or rates as China Gold (Hong Kong) Limited shall from time to time specify. 13.3 All transactions between the Clients and China Gold (Hong Kong) Limited are concluded on the understanding that China Gold (Hong Kong) Limited/broker concerned is entitled to receive commission and/or rebates in the transaction. 13.4 No activities and no holding positions for the past twelve consecutive months and with a cash balance is defined as an inactive account. According to the company policy, a monthly service and maintenance fee will be charged to HK$100.
14. MISCELLANEOUS 14.1 The Client hereby expressly appoints China Gold (Hong Kong) Limited and/or its authorized person in charge of its account or accounts with China Gold (Hong Kong) Limited as his attorney and in his name and on his behalf to sign Confirmation of orders for the sale and/or purchase of Bullion. China Gold (Hong Kong) Limited and/or its authorized person in charge of his account or accounts shall do or purport to do by virtue of this clause. 14.2 China Gold (Hong Kong) Limited is not liable for any failure or delay to meet its obligations due to any cause beyond its control which shall include but not limited to fires, storms, acts or God, riots, strikes, look-outs, wars, governmental control, restriction or prohibition whether local or international, technical failure of any equipment, power failure, black-outs or any other causes which results or is likely to result in the erratic behavior of the Bullion prices, the closure of international and local market or any other causes affecting the operation of China Gold (Hong Kong) Limited.
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14.3 The Client confirms that information contained in this Agreement or otherwise supplied by or on behalf of the Client to China Gold (Hong Kong) Limited from time to time is and shall be completed, true and accurate. The Client further confirms that China Gold (Hong Kong) Limited is entitled to rely on such information until it shall receive written notice from the Client of any changes to such information. The Client undertakes to notify China Gold (Hong Kong) Limited in writing immediately if there is any change to such information. 14.4 The Client warrants that the Client is the true owner and ultimate beneficiary of the Client’s account maintained with China Gold (Hong Kong) Limited and is trading on his own behalf and that the Client is not holding such account on behalf of or for the benefit of any person. Where the Client is not the true owner and ultimate beneficiary of such account and is trading on behalf of another person, the Client declares and agrees to immediately notify China Gold (Hong Kong) Limited in writing of the identity of all person ultimately beneficially interested in such account and any changes thereto and that this information may be disclosed in accordance with the provisions of this Agreement. 14.5 (a) The Client authorizes China Gold (Hong Kong) Limited to conduct credit enquiries on the Client to verify the information provided and to ascertain the financial position of the Client. (b) The Client agrees that China Gold (Hong Kong) Limited may disclose to any affiliate of China Gold (Hong Kong) Limited and (if so requested) to the regulators or any other regulatory or governmental authorities (whether in Hong Kong or elsewhere) all matters relating to the Client’s account with China Gold (Hong Kong) Limited including (but not limited to) the details of the account, dealings in relation to such account and the name of the ultimate beneficiary thereof. The Client confirms that China Gold (Hong Kong) Limited shall not be liable to the Client for providing such information. 14.6 (a) In connection with opening an account to speculate and/or purchase and/or transaction through the OTC gold/silver markets with China Gold (Hong Kong) Limited. The Client agrees that China Gold (Hong Kong) Limited may take the opposite position to the Client's orders. The Client further agrees that China Gold (Hong Kong) Limited shall not be liable to the account of the Client for any profits or other benefits whatsoever arising out of such transactions. (b) China Gold (Hong Kong) Limited shall make reference to the bid and offer prices from time to time disseminated to the public, or to subscribers, by any reputable financial information service provider selected by it in choosing the prices for the purposes of marking to market the Client's open positions or closing out of his accounts. (c) China Gold (Hong Kong) Limited shall determine the interest rates for calculation the Client's interest income and expenses by reference the prevailing interest rates quoted by major participants or bankers and selected by it in the market of spot gold bullion trading. (d) China Gold (Hong Kong) Limited shall determine the exchange rates for conversion of currency by reference to the prevailing exchange rates quoted by major participants or bankers and selected by it in the market of spot gold trading. 14.7 All provisions of this Agreement shall not in any respect be waived, altered, modified or amended unless such waiver, alternation, modification or amendment be committed to writing and signed by one of the authorized officers of China Gold (Hong Kong) Limited. This Agreement shall not be revoked by the Client except by writing delivered to China Gold (Hong Kong) Limited. Such revocation, however, shall not affect any transaction entered into by China Gold (Hong Kong) Limited pursuant to this Agreement before written notice of the revocation has been received by China Gold (Hong Kong) Limited. China Gold (Hong Kong) Limited may at its discretion at any time amend, delete or make any substitution or addition to this Agreement which shall be deemed to be incorporated herein unless objected to in writing by the Client within 48 hours from such notice and upon receipt by China Gold (Hong Kong) Limited and upon receipt by China Gold (Hong Kong) Limited of such written objection, China Gold (Hong Kong) Limited shall be entitled to treat the same as an event of default by the Client having happened. 14.8 This Agreement shall continue in full force and effect until receipt by China Gold (Hong Kong) Limited from the Client of written notice of its termination four working days prior to the effective date of the termination or receipt by the Client from China Gold (Hong Kong) Limited of any written notice of its termination in either event and at China Gold (Hong Kong) Limited’s election, China Gold (Hong Kong) Limited may liquidate the Client’s account(s) as herein before provided or transfer the Client’s account(s) to such broker or commission merchant as the Client shall designate. 14.9 If any provision hereof is or at any time should become inconsistent with any present or future law, rule or regulation of any market or of any sovereign, government or a regulatory body thereof, and of any of these bodies have jurisdiction over the subject matter of this Agreement, the said provision shall be deemed to be superseded or modified to conform to such law, rule or regulation, but in all other respects, this Agreement shall continue and remain in full force and effect.
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14.10 None of the rights or obligations of the Client under this Agreement and/or any Contracts shall be assignable in any manner without the prior written consent of China Gold (Hong Kong) Limited. However, China Gold (Hong Kong) Limited may assign or transfer all or any part of its rights and/or obligations under this Agreement and/or any Contracts subject only to the Client being given prior written notice of the same. 14.11 Time shall be of the essence in relation to all matters arising under this Agreement.
15. LIMITATIONS OF LIABILITY 15.1 The Client agrees that neither China Gold (Hong Kong) Limited nor any of its officers, employees, agents or the Information Providers shall be liable for any loss or have any responsibility: (a) for damages of any kind, whether direct, indirect, special, consequential or incidental, resulting from access or use of, or inability to access or use, of the CG Trader, including without limitation damages resulting from the act, omission, mistake, delay or interruption of the Information Providers, even if China Gold (Hong Kong) Limited, its officers, employees, agents or the Information Providers have been advised of the possibility of such damages or losses; or (b) for damages resulting from a cause over which China Gold (Hong Kong) Limited, its officers, employees, agents or the Information Providers do not have control, including but not limited to any government restriction, suspension of trading, failure of electronic or mechanical equipment or communication lines; telephone or other interconnection problems; incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to the Client’s computer; power failure; problems with data transmission facilities; unauthorized access, theft, fire, war, strikes, civil disorder, acts or threatened acts of terrorism, natural disasters or labour disputes. 15.2 The Client agrees that China Gold (Hong Kong) Limited shall not be responsible for any damage to the Client’s computer, software, modem, telephone or other property resulting from his use of the CG Trader.
16. RISK DISCLOSURE The Client acknowledges and accepts that: (a) access to the CG Trader may be limited or unavailable during periods of peak demand, market volatility, systems upgrades or maintenance or for other reasons; (b) due to unpredictable traffic congestion and other reasons, electronic transmission may not be a reliable medium of communication and that such unreliability is beyond China Gold (Hong Kong) Limited’s control; (c) transactions conducted via electronic means may be subject to interruption, transmission blackout, delayed transmission due to Internet traffic or incorrect data transmission due to the public nature of the Internet. (d) instructions may not be executed or may be delayed so that they may be executed at price different from those prevailing at the time the Client’s instructions were given. (e) communications and personal data may be accessed by unauthorized third parties; (f) the Client’s instructions may be executed without being subject to human review; (g) it is usually not possible to cancel an instruction after it has been given; and (h) there may be system failure, including the failure of hardware and software or breakdown of communication facilities, which may result in the Client’s instruction not being executed according to his instruction or is not executed at all.
17. INTELLECTUAL PROPERTY RIGHTS 17.1 The Client acknowledges and agrees that China Gold (Hong Kong) Limited is the proprietor or the authorised licensee of all Intellectual Property Rights subsisting in the Information, software programmes relating to the China Gold (Hong Kong) Limited Web Service and the source code thereof. The Client shall not attempt to, tamper with, modify, dissemble, decompile, reverse engineer, damage, destroy or otherwise alter in any way or sub-license, and shall not attempt to gain unauthorized access to, the Information, the source code of any software contained in the Information or any part of the China Gold (Hong Kong) Limited Web Service. The Client undertakes to notify China Gold (Hong Kong) Limited immediately if he becomes aware that any of the actions described above in this paragraph is being perpetrated by any other person.
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17.2 The Client acknowledges that China Gold (Hong Kong) Limited obtains the Information from the Information Providers. The Client agrees to comply with all conditions and restrictions imposed by the Information Providers in relation to the supply and use of the Information. In particular, the Client agrees: (a) that the Information is provided to him is for his inpidual use only and that he shall not use the Information or any part thereof other than in the ordinary course of his own business (which shall not include any dissemination to third parties); (b) not to reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate or commercially exploit the Information in any manner to any other person without the express written consent of China Gold (Hong Kong) Limited and the Information Providers; and (c) not to use or permit the use of any Information for any illegal purpose, 17.3 The Client agrees that he shall not assign, transfer or sub-license all or any part of his rights under the provisions of this Agreement. 17.4 The Client shall allow China Gold (Hong Kong) Limited or any person authorized by China Gold (Hong Kong) Limited in writing to, upon receiving its written request, inspect promptly thereafter the premises and records of the Client for any lawful purpose in connection with the provisions of this Agreement including but not limited to the purpose of satisfying that the Client is not using the Information or the software comprised in it contrary to any provision contained herein.
18. INTERPRETATION 18.1 This Agreement unless inconsistent with the context word denoting person include corporation and firm, word denoting masculine gender include feminine gender, and words denoting singular number include plural number and vice versa. 18.2 The Clause headings herein are inserted for convenience only and for reference, and in no way define, limit or describe the scope of this Agreement or the intent of any provision thereof.
19. JURISDICTION & LAW The validity, construction, interpretation and enforcement of this Agreement shall be governed by the laws of Hong Kong SAR and the Parties consent to the non-exclusive jurisdiction of the Hong Kong SAR courts in connection with any suit, action or proceeding arising out of or in connection with this Agreement, provided that nothing contained in this clause shall preclude the taking of proceedings in any other court of competent jurisdiction.
20. THE CLIENT DECLARES THAT: 20.1 The Content of this Agreement have been fully explained to the Client in a language the Client understands; 20.2 The Client information statement given by the Client is true and complete the Client Initial.
