Master Terms and Conditions - Banking Services
1. Application
1.1 These Terms and Conditions including the Schedules apply to all your accounts with and all services provided to you (the customer) by us (Industrial and Commercial Bank of China (Asia) Limited).
1.2 The Schedules form part of these Terms and Conditions. If there is inconsistency, the provisions for a particular service will prevail over general provisions.
1.3 In the terms or conditions applicable to a service, unless the context otherwise requires, "we" and all references to us include our successors and assigns. "You" includes your estates, heirs, successors and personal representatives. Words importing the singular include the plural and vice versa. Words importing a gender include every gender. "Business day" means a day on which we are open for business in Hong Kong excluding Saturday afternoon. "Including" is not a word of limitation. A "person" includes an individual, corporation, association, sole proprietorships, partnerships, clubs and societies. Headings are for ease of reference only and do not affect interpretation. Our terms and conditions are drafted in simple language, and are to be interpreted fairly and liberally. The rule of interpretation against the maker will not apply.
1.4 Please read these Terms and Conditions carefully, particularly Clause 2 (Information), Clauses 6 (Password), 8 (Charges and overdue interest), 10 (Limit of our liability), 11 (Your indemnity), and 13 (Set-off and lien).
2. Information
2.1 You confirm you have read our notice to customers (as amended from time to time) relating to the Personal Data (Privacy) Ordinance on display in our branches or otherwise made available to you. You authorize us to use your information for the purposes and to disclose them to the persons referred to in that notice (as from time to time amended).
2.2 Without prejudice to the generality of the foregoing, you authorise us (a) to use, store, disclose, share, transfer (whether within or outside Hong Kong) or exchange any information in connection with these Terms and Conditions or other information (other than personal data) in respect of you, your accounts, business, transactions and/or attempted transactions, your use of our products and/or services, credit facility and/or accommodation provided or to be provided by us to you (collectively, “Customer Information”) to our branches and offices and to any of our subsidiaries or associated companies or holding company or any subsidiary or associated company of that holding company, any financial institutions, debt collection agencies, agents, credit providing companies, charge or credit card issuing companies, credit reference agencies, service providers or contractors; and (b) to disclose, exchange or transfer any Customer Information to any local or foreign legal, governmental, supervisory, regulatory, law enforcement or other authorities, courts or tribunals, or self-regulatory or industry bodies or associations in any jurisdictions (collectively “Authorities”) or the Financial Intelligence Evaluation Sharing Tool (FINEST) and/or other fraud information-sharing initiatives or any other persons as we may consider necessary, if required by any law, rule, regulation, court order, codes or guidelines in any jurisdiction or for the purposes of detecting, reporting and preventing known or suspected fraud. You acknowledge and agree that Customer Information may be accessed and used by us, the Authorities and other financial institutions, for the purposes of detecting, reporting and preventing fraud, deciding whether or not to provide services to you and other lawful purposes. Subject to the aforesaid, we shall keep Customer Information confidential and shall not disclose the same to any third party without prior written consent from you.
2.3 You confirm and warrant that, in respect of any information provided to us that relates to a third party (including any of your authorized signatory(ies), authorized user(s), shareholder, director, associate or partner), you have obtained the consent of such third party to the provision of such information to us for the purposes set out in this Clause 2 and for disclosure to such persons as stipulated in this Clause 2.
2.4 You further authorize us to contact any of his/her/their employers (if applicable), other banks, referees or any other sources for the purpose of obtaining or exchanging any information and to compare the information provided by you with other information collected by us for checking purposes. We are entitled to use the result of such comparison to take any action which may be adverse to the interest of or against you or any of you (if you are more than one person).
2.5 You expressly authorize us to record by tape or other devices all communications between you and/or any of our authorized person(s) by telephone from time to time, including any communication through our telephone hotline, and further agree that if a dispute arises at any time in relation to the contents of any such communication, the recording of such communication, or a transcript thereof certified as a true transcript by our staff and officer, shall be conclusive evidence between you and us as to the contents and nature of such communication unless and until the contrary is established, and may be used as evidence in such dispute.
2.6 You shall immediately inform us in writing of any change in your personal particulars, address, telephone number, facsimile number or e-mail address, or any change in the name, identification number or address of any of your authorized signatory(ies), authorized user(s), shareholder(s) or director(s) (if you are a limited company) or partners (if you are a partnership firm).
2.7 You will provide any further materials or information, as may be reasonably requested by us from time to time, to enable us to perform our duties and obligations under these Terms and Conditions, or to ensure compliance with the applicable laws and regulations.
2.8 You confirm that all information you give to us at any time is true and complete in all material respects. You will promptly notify us of any material change to that information.
2.9 The ownership and all copyright and other intellectual property rights of any nature in or relating to our services, website, materials, software or documentation vest in us or, if provided by a third party, in that party. No right, licence or interest is granted to you except a licence to access solely for the purposes of our services.
2.10 You will not copy, disseminate, exploit or change any information (including software) provided by us or use them for any purposes other than for your own reference.
3. Our services
3.1 Before using a service or opening an account, you will comply with our reasonable requirements. Each service is only available during the times and subject to the procedure and conditions reasonably determined by us. We may refuse access without liability.
3.2 Each service and account is also subject to our terms and conditions applicable from time to time to such service or account. Those terms and conditions prevail, if they conflict with these Terms and Conditions.
3.3 Before and/or in giving instructions to us to make payments or effect transactions, you agree to take reasonably practicable steps to safeguard your own interest, money and assets from fraud or other illegal activities, including without limitation, to use the information or tool made available to the public by the law enforcement, governmental or regulatory authorities (for example, Scameter made available by the Hong Kong Police Force) (the “Third Party Tools”) to check whether the party receiving payment from or transacting with you is real and credible. You agree and acknowledge that we have no duty and obligation to provide the Third Party Tools and they are used at your own risks and own costs. In addition, you will do everything and take any actions reasonably required by us (before, at the time of and/or after accepting your instruction) in relation to your account, any services provided to you and/or your instructions. You will not operate an account or use a service until all such actions have been taken to the satisfaction of us.
3.4 We need not act until we have received all necessary instructions, funds, property and documents, but may do so. If we do so, we may charge reasonable interest and fees, and may terminate or close out any transaction (including a deposit) at your reasonable cost. We may on receipt of your instruction debit funds from your accounts, or put a “hold” in your accounts on funds and property, in the amounts reasonably estimated by us to be required to carry out your instruction. Our rights are not affected if we do not do so or by anything done or omitted by us in good faith.
3.5 You will only use our services for a lawful purpose.
4. Our role
4.1 We will use reasonable care in carrying out your instructions on your behalf. Our responsibilities are limited to those expressly set out in these Terms and Conditions and our terms and conditions (if any) for the relevant service. These Terms and Conditions apply, to the extent possible, to transactions on your behalf as well as with us.
4.2 You authorize us and any person appointed by us to do everything reasonably necessary or desirable for all purposes connected with our services.
4.3 We may do or refrain from doing anything in any circumstances (including without limitation, your instructions) without giving any reason and without any liability that we believe in good faith is required (including without limitation in order to comply with any law, regulation, rule or practice, including the rules, codes, guidelines and practices of regulatory authorities, the Hong Kong Association of Banks, exchanges and clearing houses). All such actions and omissions bind you.
4.4 We may use the services of agents, brokers, custodians, nominees, correspondents, networks, exchanges, clearing houses and other persons to hold your property or to perform any services. They may be our affiliates. Their terms and conditions of service will apply to your transactions. You will pay their charges, and indemnify us against their reasonable claims. We will use reasonable care in selecting an agent. We will only appoint custodians qualified to act as such under applicable law.
4.5 We do not provide legal or tax advice. You will obtain your own advice.
5. Your instructions
5.1 You will only give instructions to us through a means we have notified (acting reasonably), in accordance with the signing arrangement in your mandate (if applicable), and in accordance with our reasonable requirements. We may reject or act on an instruction not so given. Different services may use different means for giving instructions.
5.2 Your authorized signatories have the authority set out in your written authorization provided by you to us.
5.3 You may change your authorized signatories or signing arrangement by complying with our reasonable procedures.
5.4 An authority will not be revoked until we have received written notice revoking it, or written notice of your death or incapacity. It remains in force notwithstanding any change in your constitution.
5.5 We may (acting reasonably) regard your instructions as received by us as being what you intended to send. Any instruction that we reasonably believe is given by you or with your authority will be valid and binding on you, whether or not it is in fact authorized. We may require evidence of identity or authority. We may regard your instruction (which duplicates another instruction) as a separate instruction, unless we actually knew before execution that it was a duplicate.
5.6 You will ensure that your instructions are complete and correct. You authorize us to act in any way we consider reasonable if your instruction is ambiguous. We may without giving any reason and without liability, in our absolute discretion refuse to accept and/or comply with any instruction or request made by any person or entity (including without limitation, an attorney under a power of attorney) acting or purportedly acting on behalf of you. An instruction once accepted cannot be altered or cancelled, unless we agree (acting reasonably). If an instruction is not executed, reasonable charges and expenses may still be payable.
5.7 If an instruction is received outside our business hours for relevant transactions, your account may in accordance with market practice be debited on the same day, but the instruction may not be processed until our next business day.
5.8 An instruction may be partially executed if it cannot be fully executed. An instruction or part not executed by the day’s close of business (or, if earlier, close of trading) will lapse, unless otherwise agreed.
6. Password
6.1 "Password" refers to one or more means accepted by us to authenticate a user and to gain access to an account or service through one or more channels or means advised by us, and may include identification or number, letter, code, digital signature, debit card or other card, token, chop, seal, anything. Different passwords may be used by different users or for different channels.
6.2 Any instruction given with the use of your password is binding on you. This is so notwithstanding different requirements in your mandate or other arrangements. Changes in your authorized signatories or signing arrangement will not affect operation by your password. If the option is provided by us, a password for one channel may be used to apply for other services or channels, and any application is binding on you.
6.3 You will use all reasonable care to keep your password secret and secure. If not collected in person, your password will be sent to you at your risk. If permitted, you will immediately change a password assigned by us.
6.4 You will notify us as soon as reasonably practicable at the telephone number or by another method notified by us if you find or believe that your password has been compromised, lost or stolen or that any unauthorized transactions have occurred. We may without liability take any action following receipt of a report reasonably believed by us to be genuine.
6.5 You will be liable for all losses if you have acted fraudulently or with gross negligence, or allowed a third party to use your password, or failed to comply with your obligations under Clause 6.3 or 6.4. You would not otherwise be responsible for any direct loss suffered by you as a result of unauthorized transactions conducted through your account. This Clause does not apply (a) unless the unauthorized instruction was given electronically, (b) to you unless you are a private individual (excluding sole traders, partnerships, clubs and societies), or (c) to unauthorized transactions conducted through plastic cards which may be used to pay for goods and services or to withdraw cash.
7. Payment / delivery
7.1 Payments will in ordinary course be debited to the account designated by you for the purpose (including a sub account maintained under an account) which is denominated in the same currency. This also applies to “holds” on funds in your accounts. We will determine whether you have a sufficient balance or overdraft by reference to your designated account (or sub account) in the payment currency. However we may put a “hold” on amounts in other currencies. If necessary, we may (but are not obliged to) convert an amount received or to be paid from one currency into another at our spot rate. We may, for the purpose of a calculation, notionally convert an amount from one currency into another at our spot rate.
7.2 Payments will be made to you subject to applicable laws and regulations and any required deduction or withholding.
7.3 You will pay us in freely transferable and cleared funds and in the manner reasonably notified by us. Deliveries of any property by either party will be made in the manner reasonably notified by us.
7.4 If on any date amounts would be payable in the same currency under 2 or more transactions by each party, then on such date, each party’s obligation to pay such amounts will, at our option, be discharged, and the party by whom the larger amount would otherwise be payable will pay to the other party the excess of such amount over the smaller amount.
7.5 You will on demand repay to us all sums owing by you if no due date has been agreed.
7.6 Your payments will be made without condition and free of all taxes, withholdings or deductions. If any withholding or deduction is required by law, you will pay an increased amount so that we receive a net amount equal to what we would have received had there been no withholding or deduction. You will duly pay the tax authority and send us the evidence.
7.7 Your payments will be made in the currency of the liability. A sum received by us in another currency only constitutes a discharge to you to the extent of the net amount of the currency of your liability which we would be able to purchase with the amount received when it is practicable to do so. You will, as a separate obligation and notwithstanding any judgment, indemnify us against any reasonable loss and expense. It will be sufficient to show that we would have suffered a loss had an actual exchange or purchase been made.
7.8 We may apply any sum received to reduce your liability in the order we reasonably select, or place it in a suspense account to preserve our right to prove for your entire liability.
7.9 A sum or an item received for your account may not be drawn against or used and does not earn interest until we have unconditionally received cleared funds. We may debit your account with all reasonable losses and expenses, if the sum or item or part thereof is not actually received. You will bear the loss arising from any difference in exchange rates between the date of crediting your account and the date (if we act reasonably) of the subsequent debit.
7.10 If not collected in person, your property and documents will be sent to you at your risk.
7.11 We may recover from you any erroneous payment.
7.12 In accordance with market practice, we may retain interest on amounts to be paid to you pending credit to your account, and on amounts to be paid on your behalf pending payment.
7.13 Any payment, delivery or determination, which would otherwise fall to be made on a non-business day, will instead be made on our next business day, unless otherwise agreed.
7.14 Cash will be paid to you after rounding down to the nearest ten cents (or, for Japanese yen or other foreign currency, to the nearest yen or unit in accordance with market practice). This constitutes full payment.
7.15 Unless otherwise agreed, any amount or item to be paid or delivered by us will only be paid or delivered in Hong Kong at our office at which the account is kept.
8. Charges and overdue interest
8.1 We may levy reasonable fees and charges, and (acting reasonably) change them from time to time after reasonable notice to you. We may debit your account to settle such fees and charges payable by you on the payment date which may fall on a non-business day. The current list of our fees and charges is available on request.
8.2 You will, at the agreed time or on demand, pay our fees and charges, and all reasonable out-of-pocket expenses including sums payable in respect of your securities, amounts we paid on your behalf together with interest thereon at our interest rate for unarranged overdraft, our agents’ fees and expenses, the fees and levies of exchanges, clearing houses, registrars and regulatory authorities, and taxes.
8.3 Paid fees and charges are not refundable. However if you terminate a service as a result of a change of these Terms and Conditions, we will refund a prorated portion of any annual or periodic fee paid for the service unless the amount is minimal.
8.4 Interest accrues on all sums payable by you from the due date or, if earlier, the date we paid the sum on your behalf or to you to the date of actual repayment (before and after judgment) which may fall on a non-business day. Interest is payable on demand, and is calculated at our interest rate for unarranged overdraft, for the actual number of days divided by 360 or 365 according to our practice for the relevant currency, and will be compounded in the manner reasonably determined by us.
9. Statements of account / confirmations
9.1 We will provide you with monthly or other periodic statements of your account, if so agreed or if it is a securities account, unless a statement is not required under applicable regulation, such as, if there is no transaction in your account and the account balance is nil. You will notify us if you do not receive a statement.
9.2 You undertake to examine each statement of account or confirmation of a transaction carefully following receipt. If you discover any error or unauthorized transaction, you will notify us within 90 days of receipt of the statement or within the period agreed or reasonably specified in the confirmation. In the absence of your notification within that period, all entries in the statement or confirmation will become conclusive and binding on you, except for manifest error.
9.3 You will not however be liable as a result of non-notification within the 90-day period for unauthorized transactions arising from forgery or fraud (a) by any third party in relation to which we have failed to exercise reasonable care and skill, or (b) by our employee or agent, or other unauthorized transactions arising from our default or negligence. This Clause does not apply unless you are a private individual (excluding sole traders, partnerships, clubs and societies).
9.4 Any document may be sent to any of your last known addresses.
10. Limit of our liability
10.1 Unless caused by our negligence or wilful misconduct, we are not liable for:
(a) any delay or interruption in your having access to an account or service, or any inability to use an account or service;
(b) any loss, error, delay, misdirection, corruption or unauthorized alteration or interception of a message sent through the internet, telephone or any other means, or any unauthorized access to a service, account or information;
(c) any failure to execute or error in executing your instructions;
(d) any error, malfunctioning, interruption, suspension, inadequacy or failure of any software, equipment or system;
(e) anything including any computer virus which may impair the functions of computer hardware or software; or
(f) any loss or damage arising from termination of your account or any service provided to you.
10.2 We are not liable for any loss caused by a third party, government, market disruption or any event beyond our control. In respect of our act or omission, we are only liable for negligence or fraud. We are not obliged to account to you if our relevant office is prevented from acting.
10.3 Subject to clause 10.6 below, we are not liable for any indirect, special, incidental or consequential damages.
10.4 Any information provided by us is for your reference only. Unless otherwise expressly stated, it is not an offer. You acknowledge that we do not give any representation, guarantee or assurance as to any information or the outcome of any investment. Any price, rate or other quotation provided is only indicative, unless otherwise expressly stated, and may be changed without notice until we have confirmed acceptance of your offer. Unless otherwise expressly stated, the prices payable by you do not include, and you will in addition pay, applicable taxes, duties, levies, reasonable fees and expenses.
10.5 We need not verify the validity or genuineness of any documents which we reasonably believe to be genuine.
10.6 Clauses 10 and 11 operate to the extent permitted by applicable law. For example, in a case where the Control of Exemption Clauses Ordinance applies, Clauses 10 and 11 will apply only in so far as they satisfy the requirement of reasonableness within the meaning of that Ordinance.
11. Your indemnity
11.1 You will indemnify us and our directors and employees against any liability, reasonable loss or expense (including tax or levy) arising from your instructions, your account or the provision of a service to you, unless we are negligent or guilty of wilful misconduct.
11.2 You will indemnify us against any liability, reasonable loss or expense (including tax or levy) arising from any act or omission by you or your employees or agents including without limitation any breach of these Terms and Conditions or the terms or conditions applicable to an account, service or transaction. You will pay us all expenses (including without limitation legal fees and our administrative expenses) in reasonable amounts and reasonably incurred in the exercise or enforcement of our rights including in recovering any sum from you or in obtaining any advice we consider necessary in relation to your account.
11.3 We may at your reasonable costs employ third party agencies to collect overdue sums from you.
12. Your representations
12.1 You represent to us that:
(a) unless you have notified us otherwise in writing, you are the sole beneficial owner of your accounts, free from third party claims or interests and will enter into each transaction as principal and not as agent for any other person;
(b) all documents and information (including but not limited to identity documents proving your true and full identity) you deliver to us are valid, true, complete and accurate;
(c) you have made your own independent decision to enter into each transaction and as to whether the transaction is appropriate for you based upon your own judgment or upon advice from such third party adviser as you consider necessary; you understand and accept the terms and risks of the transaction and will not rely on our advice or recommendation;
(d) you have full capacity and authority to perform your obligations under these Terms and Conditions and each transaction;
(e) the performance and enforcement of your obligations will not violate any law or regulation; and
(f) your obligations are legal, valid and enforceable in accordance with their terms.
12.2 If you hold a client account, you represent and undertake to us that:
(a) you have put in place reliable systems to verify client identity;
(b) you have proper systems and controls to allocate funds in the pooled account to the individual underlying clients;
(c) we may make reasonable enquiries about transactions passing through the accounts; and
(d) you are satisfied as to the source of the funds used to open the account or passing through the account.
12.3 These representations are deemed repeated on the day each transaction is entered into and will survive termination of our services.
13. Set-off and lien
13.1 If any sum is payable by you but unpaid or if any claim is made by a third party, we may, without prior notice, combine all or any of your accounts anywhere with us whether held singly or jointly with others and all your liabilities (whether actual or contingent, primary or collateral, future or existing, alone or jointly with others, matured or not). For such purpose, we may convert any currency into another currency at our spot rate, treat future liabilities as presently due after a discount by us to present value in a commercially reasonable manner, and reasonably estimate the amounts of contingent or unquantified liabilities. This is not intended to create a security interest.
13.2 We may debit one or more of your accounts with any amounts (or part thereof) payable by you.
13.3 In addition and without prejudice to any other security or any general lien, right of set-off or similar right to which we may be entitled at law, we shall have the right and are hereby authorized (but not obliged to), to the fullest extent permitted by law and without notice to you or to any other person, to retain, set-off and apply in such manner and order in respect of your obligations and liabilities to us as we in our absolute discretion decide (i) any credit balance on any account (whether subject to notice or not and in whatever currency(ies)) of you or of any other person with us or any other company related to or associated with us to which you may be beneficially entitled and (ii) any other sum due or owing by us to you in whatever currency(ies) and (iii) any credit balance on any account opened by us in our name on behalf of you with any other financial institutions in Hong Kong or elsewhere, against or on account of your obligations and liabilities to us, whether actual or contingent, primary or collateral, future or existing, alone or jointly with others, matured or not.
13.4 Your property (of any nature, wherever situate, and whether held by us for safe custody or otherwise) is subject to a lien in our favour. If you do not perform any of your material obligations owed to us or any of our affiliates, we may sell any of your property or part thereof at such price, on such terms and by such method as we may reasonably determine. We may apply the net proceeds to reduce your liability (whether or not arising from these Terms and Conditions).
14. Changes
14.1 Subject to Clause 14.2, we may change our services, the manner of operation, any requirements, time limits or monetary amounts, or impose restrictions, or suspend or withdraw any services (for all or any account or accounts). We may vary the name of a service. We may change our business hours or the hours during which a service is available. Such changes may be made without notice or liability.
14.2 We may change any terms and conditions applicable to any service or account at any time by notice to you. The notice will take effect, if the changes affect fees, charges, or your rights or obligations, and where practicable, after 30 days.
14.3 When, in our view and in our absolute discretion, it is necessary (including without limitation we have notice that a petition has been presented for your bankruptcy or liquidation, or that a meeting has been called to consider a resolution for your liquidation, or that your partnership has been dissolved, or of any analogous process under any law, or of any third party claim or of your death or mental incapacity, or if there appears in our opinion in good faith to be any irregularity in connection with your account), we may without giving any reason, without liability and without any prior notice (but is not obliged to) suspend or freeze any accounts or services at any time as determined by us.
15. Evidence
15.1 Our accounts and records (in any form) are conclusive of the matters or facts therein stated and are binding on you, except for manifest error. You agree that they will be admissible in any court or tribunal as evidence of the facts and matters recorded in them. We may record conversations with you without warning.
15.2 We reserve the right to regard all calculations, estimates and determinations by us as conclusive and binding on you, except for manifest error.
15.3 We may destroy any document relating to your account after recording it in a manner reasonably determined by us. Records will only be retained for the period determined by us.
15.4 We may correct any error in any document or record without prior notice.
16. Communications
Without affecting other methods of communication, you agree to receive communications sent by one or more of the following means, and such communications are deemed to be received by you:
(a) on posting for 3 business days in one or more of our banking halls in Hong Kong,
(b) 3 business days after publication as an advertisement in a Hong Kong newspaper,
(c) when posted on our website,
(d) when left at any of your address on our record, or 48 hours after mailing to such address or 7 days if the address is overseas,
(e) when sent by electronic mail or message or facsimile to any of your email address or equipment or facsimile number on our record, or
(f) when communicated including by leaving a voice message, if by telephone to any number on our record or other oral communication, notwithstanding return through the post (in the case of a mailing), or your death or incapacity.
17. Termination
17.1 You may terminate an account or service after you have given 30 days’ prior written notice to us or a shorter notice accepted by us, and complied with our reasonable requirements and paid our reasonable fees.
17.2 We may close your account(s) by providing you no less than 30 days’ prior notice. Under circumstances as we consider, in our sole and absolute discretion, necessary (including but not limited to where the account(s) is/are being used or is/are suspected of being used for illegal activities), we may, without giving any reason, without liability whatsoever suspend any service and/or close your account(s) with immediate effect and in any manner as we in our absolute discretion consider appropriate without prior notice.
17.3 Within 14 days (or such longer period as we agree) after the termination of your account, you will give us instructions for the delivery (at your risk and subject to our rights) of your property (if any), and pay all reasonable fees and expenses. If you have not done so, we will continue to hold the property at your risk and subject to our rights, but without the obligations, under these Terms and Conditions. No interest will be payable on any credit balance as from the date of termination.
17.4 Termination of an account or a service will not affect accrued rights or subsisting transactions. We may cancel, close out or complete any outstanding instruction or contract. Clauses 2 (Information), 7 (Payments / delivery), 8.4 (overdue interest), 10 (Limit of our liability), 11 (Your indemnity), 13(Set-off and lien) and 15 (Evidence) will survive termination.
18. Miscellaneous
18.1 If you are 2 or more persons:
(a) your obligations are joint and several; references to you include any one of you;
(b) any of you has full authority to bind all of you in all matters, unless otherwise agreed. In the event of conflicting instructions, we may refuse to act. The signing arrangement may only be changed by all of you;
(c) payment or delivery of anything to any one of you discharges our obligations to all of you; sums payable to any one of you may be credited into your joint account;
(d) a communication to any one of you is effective communication to all of you;
(e) we may compromise, discharge or deal with one or more of you, without affecting the liability of the others;
(f) we may apply the balance in your joint account to reduce any liability of one or more of you;
(g) (unless you are a partnership or the account is held for a third party) upon the death of any of you, the cash or other property in the account will belong to the survivor;
(h)if any one of you become mentally incapacitated, we may freeze the account until there is a legally valid arrangement with respect to the interest of the affected account holder;
(i)any one of you may, by written notice to us freeze the account. You will notify the others of your decision. The account can only be reactivated by all of you and
(j) an account may only be closed in accordance with the signing arrangement in your mandate.
18.2 If you are a partnership:
(a) no restrictions in your partnership agreement will bind us, and your account will be governed by these Terms and Conditions; all partners, whether general, special or limited, will be jointly and severally responsible;
(b) unless otherwise agreed by us, you will give us a new mandate and open a new account on admission of any new partner;
(c) notwithstanding notice of any change in your constitution or dissolution, the remaining partners will have full powers to deal with your accounts in any way. We may open accounts for the new firm in the same name and collect for the new firm any payments designated for the old firm without enquiries; and
(d) upon the death of any of you, the firm continues to own the cash or other property in the account.
18.3 If you hold your account for another person, you accept joint and several, personal responsibility in relation to your account, in addition to the responsibility of that other person. You confirm that you are fully authorized to open, operate and close the account. You will indemnify us against any liability, reasonable loss or expense arising from any transaction involving the account.
18.4 Our rights are not affected by your death, incapacity, reorganization, change in constitution, insolvency, bankruptcy or liquidation.
18.5 The terms and conditions applicable to an account or a service apply to all outstanding and future transactions.
18.6 You will be responsible for filing tax and other returns and reports on the transactions we handle for you.
18.7 You will, where necessary, obtain and maintain at your own cost suitable equipment, facilities and connections (including computer, software and communications connections) to use a service. You are responsible for all telephone, internet service and other charges incurred.
18.8 You may not without our prior consent (acting reasonably) assign, transfer or encumber your account or any transaction with us. We may assign or transfer all or any of our rights and obligations.
18.9 Rights are cumulative, may be exercised many times and are not exclusive of the rights and remedies provided by law. If any provision or part thereof is invalid, all other provisions remain in full force and effect.
18.10 A failure or delay in exercising any right will not operate as a waiver, and a single or partial exercise of any right will not preclude any further exercise of that right or the exercise of any other right.
18.11 Our terms and conditions and all transactions with you are, unless otherwise agreed, governed by the laws of the Hong Kong Special Administrative Region. The parties submit to the non-exclusive jurisdiction of the Hong Kong courts.
19. No third party rights
19.1 Any person or entity that is not a party to these Terms and Conditions (or the relevant terms and conditions, as the case may be) shall have no rights under any applicable laws and regulations, including but not limited to the Contracts (Rights of Third Parties) Ordinance (Cap. 623, Laws of Hong Kong), giving rise to or conferring on third parties contractual or other rights to enforce any part of these Terms and Conditions (or the relevant terms and conditions, as the case may be).
Schedule 1 : Banking services
1. Collections / payments in
1.1 We may decline (without giving reason) or accept (subject to conditions) an item for collection. You will pay our reasonable collection expenses, including our charges and those of the paying bank and any correspondents. We may clarify any ambiguity before crediting your account. In the absence of negligence or wilful misconduct, we are not liable for any failure, delay, loss or damage in the process of collection. Unless specifically agreed, we will not arrange for protest or similar actions to be taken.
1.2 We may at our discretion decline to collect a cheque if the account name is different from the payee’s name even though the cheque bears an endorsement.
1.3 If not collected in person, we may return any document or item by post to you at your risk.
1.4 You confirm that you are the sole owner of all items you ask us to collect or discount for you. You authorize us (acting reasonably) to give any guarantees in respect of items collected for you. We may at our discretion select which items to purchase and which to collect.
1.5 Items including cash deposited after our daily cut-off time are treated as received on our following business day. On a cheque drawn on a bank in Hong Kong and deposited for collection before the cut-off time, interest will be credited on that day. If it is deposited after the cut-off time, interest will accrue on our next business day. If the cheque is dishonoured, the interest will be reversed, and reasonable charges will apply.
1.6 Interest will only accrue after the funds of an inward remittance are credited to your account. We will notify you within a reasonable time after receipt of the payment. For incoming cross-border payments, you may use the remitted funds only after receipt of the funds is confirmed and any necessary checking is completed. If we are unable to do so, we will notify you and provide an explanation, unless there are strong justifications not to do so.
1.7 Acting reasonably, we may, on request by our correspondent or the paying bank, and without liability, refund any amount collected that has not been paid out to you.
1.8 Our count of anything deposited by you is binding on you, except for manifest error.
2. Payments out / remittances
2.1 A payment instruction may only be acted on if there are sufficient cleared funds in the relevant currency in your account for a full payment, and if our requirements have been complied with. Such requirements may include amount limits, and restrictions on the office from which a withdrawal may be made. In particular, withdrawals in cash or by electronic means may be subject to limits.
2.2 If we make a payment to you or on your behalf including paying a cheque, without sufficient cleared funds in your account or beyond an overdraft limit, you will repay to us the resulting debit together with interest and our reasonable charges.
2.3 We are authorized to pay the bearer of a withdrawal instruction which we believe is signed by you, but may require your personal attendance.
2.4 A request to stop or alter a payment may be subject to satisfactory evidence, indemnity and, in the case of a draft issued by us, return of the original draft. We are not responsible if payment cannot be stopped or altered; charges will not be refunded. A refund may only be made after we have confirmed, for example, with a correspondent or the receiving bank that the payment order has been cancelled, and after receiving cleared funds and deducting all reasonable expenses and, if applicable, converting the payment currency into Hong Kong dollars at our spot rate. In the absence of negligence or wilful misconduct, we will not be responsible for any delay or loss (from exchange rate movements, of interest or otherwise).
2.5 In the absence of negligence or wilful misconduct, we are not responsible for any delay or failure in effecting a payment or remittance or delivering any item. We are not responsible as to when the receiving bank pays your payee or if it fails to do so, or to recover any payment from it. Our correspondents and we may do or refrain from doing anything that they or we believe is required in order to comply with any applicable foreign law, regulation or custom. All such actions and omissions bind you.
2.6 Funds sent out of Hong Kong may be subject to currency conversions in Hong Kong or at the destination. Unless otherwise agreed, a remittance will be made in the currency of the country in which the payment is to be made, and reasonable charges (including those of our correspondents) will be deducted before payment to the payee.
2.7 We are not responsible to advise you on the requirements of any local or foreign law, regulation or custom including exchange control. You are advised to make your own enquiries.
2.8 We may remit an amount to, or draw a draft payable at, a place different from that required by you if we reasonably believe that it is necessary to do so.
2.9 If a provisional exchange rate is used in your application for a remittance or draft, we may debit any deficit or credit any gain to your account without prior notice after we have reasonably determined the applicable exchange rate.
2.10 We will take reasonable steps to comply with your value date for a remittance, but do not guarantee that your request can be met. Local and overseas cut-off times and other procedures may apply before the payee or its banker will receive payment.
2.11 You authorize us to disclose your personal information and information relating to your remittances to the banks and other entities involved and to the authorities.
2.12 A service that permits payment to third party accounts involves risks, for example, an unauthorized person obtaining access to your account may pay funds to third party accounts.
3. Accounts
3.1 For certain accounts, we will pay interest on your credit balance. Interest will be calculated at the rate, and be credited to your account at the time, determined by us from time to time, which may fall on a non-business day. Different currencies may have different rates. Interest will be calculated for each day over a 360 or 365 day year according to our practice for the relevant currency. If an account is closed before a date for crediting interest, we may pay interest up to the preceding month or up to any date reasonably chosen by us in accordance with our practice.
3.2 If a passbook is issued for your account:
(a) the passbook should be presented for every counter transaction. You should examine the passbook after each transaction to ensure that proper entries have been made, and promptly inform us of any error;
(b) the passbook is for your reference only and may not show the correct balance, for example, a transaction may have been made without an entry in the passbook. The balance as shown in our records is the correct balance, except for manifest error.
3.3 If an account card is issued for your account, the card should be presented for every counter transaction.
3.4 Acting reasonably, we may without liability dispense with production of a passbook or account card.
3.5 You should keep your passbook and account card under lock. You should promptly report any loss to us. We are not responsible for any payment made before we have a reasonable time to act on your report. A new passbook, account card and account number may be issued subject to satisfactory indemnity, explanation, and payment of our reasonable charges.
3.6 Passbooks and account cards are our property. They are not transferable. You should not tamper with them in any way.
3.7 We may charge reasonable fees or the interest rate applicable may be zero if your account balance is less than the minimum required by us, or if your account is inactive for such time as we reasonably specify. Restrictions may apply to an inactive account.
3.8 In accordance with market practice, we may levy charges on credit balance. If an account is closed within 3 months, we may charge a reasonable fee.
Planned savings
3.9 You will make the agreed periodic deposits on the agreed dates into the specified account. If a deposit date falls on a Saturday or a non-business day, it will be deferred to the next business day. Early deposit may not earn interest until the agreed deposit date.
3.10 Principals and interests at the agreed rate will only be paid to you at the end of the agreed term. If you fail to deposit the agreed sum on any deposit date, no interest will be payable, and we may terminate the deposit and return the principals after deducting our reasonable charges and funding loss. If you request an early uplift, we reserve the right not to pay interest and to impose a reasonable charge.
4. Cheques
4.1 Cheques should only be drawn on the form provided by us, and should only be used for the accounts permitted by us.
4.2 You will be responsible for all losses and reasonable expenses if you fail to exercise reasonable care in drawing cheques or if you draw them by a means or in a manner that may facilitate alteration, fraud or forgery.
4.3 We may deliver a cheque book to you in person or, at your risk, to the bearer of your instruction or by ordinary mail or registered mail to your correspondence address and debit your account for the postage.
4.4 On receiving a new cheque book, you should check the serial numbers, account number, your printed name and the number of the cheques. You should promptly report any irregularities to us.
4.5 You will keep your cheque books under lock. You should promptly report the loss of any cheque to us. We are not responsible for any payment made before we have a reasonable time to act on your request to stop payment or on your report of lost cheque.
4.6 We may return a cheque unpaid if it is not signed in accordance with your specimen signature on our record, or is incorrectly completed, altered without your full signature, mutilated, post-dated or out-of-date. Reasonable charges will apply. Change of your specimen signature will become effective only after we have recorded it.
4.7 We are not responsible for any alteration of a cheque or instrument that cannot be detected with reasonable care.
4.8 If several cheques are presented for payment simultaneously, we may in good faith without liability determine the order for payment.
4.9 After closing your account we may without liability return unpaid any cheque subsequently presented.
4.10 You will return all unused cheques to us on closing your account.
4.11 Cheques drawn by you may, after payment and recording in electronic form, be retained by the collecting bank or Hong Kong Interbank Clearing Limited ("HKICL") for the period stated in the rules relating to the cheque clearing system operated by HKICL and after this, they may be destroyed. You authorize us to contract with collecting banks and HKICL accordingly.
4.12 Overdrafts are granted at our discretion. Interest and fees will be charged at the rate and in the manner we determine from time to time. We may at any time reduce, cancel, suspend or increase an overdraft facility, or demand immediate repayment of all outstanding amounts and interests.
4.13 A "cheque" includes, to the extent applicable, a bill, draft, order and other payment instrument.
5. Deposits
5.1 Fixed, call and other deposits may only be made in the currency and minimum amount, for the period and at the rate accepted by us and as stated in a deposit confirmation issued by us. Any other rates and information provided by us are not binding.
5.2 You should examine each deposit confirmation carefully, and notify us promptly of any error. We may require surrender of the original confirmation in good order to withdraw the deposit. A new deposit confirmation or an auto renewal notice will be issued on renewal.
5.3 Deposits may not be uplifted before maturity. For a call deposit, maturity refers to the expiry of your notice of the agreed period to us. We may permit an early uplift subject to payment of our losses, reasonable expenses and charges. We reserve the right not to pay interest on the deposit if an early uplift is permitted, and you may be required to repay any interest paid.
5.4 Interest on a deposit is only payable at maturity. Interest is calculated on the principal amount of the deposit at the agreed rate for the number of days from the effective date of the deposit up to but excluding the maturity date. For call deposits, interest will be calculated on a daily basis at the fluctuating rates quoted by us for deposits of comparable amount and term.
5.5 A deposit, which would otherwise mature on a non-business day, matures on our next business day.
5.6 We may (but are not obliged to) pay interest on a matured deposit that is not renewed or withdrawn at our savings account rate or any other rate determined by us or renew the deposit for the same period at the rate for similar deposits quoted by us at close of business on the renewal date. A deposit to be automatically renewed will carry interest at the rate for similar deposits quoted by us at close of business on the renewal date.
6. Foreign currencies
6.1 "Foreign currencies" means currencies other than Hong Kong dollars and accounting units accepted internationally as equivalent to currency, which we agree are available for the purposes of our services.
6.2 We may settle foreign currency transactions in Hong Kong dollars or the foreign currency, and may convert any currency into another currency at our spot rate.
6.3 Deposits of foreign currency into a foreign currency account may be subject to restrictions. If accepted, a reasonable commission for exchange and our reasonable charges will be payable.
6.4 We may pay withdrawals after deducting a reasonable commission in lieu of exchange and our reasonable charges, by one or more of the following methods, without liability for any loss thus incurred:
(a) by telegraphic or other transfer in the relevant currency;
(b) by issuing a draft in the relevant currency on such bank at such place as we reasonably determine;
(c) subject to availability at the relevant branch, in cash in the relevant currency;
(d) by payment in Hong Kong dollars at our T/T or bank notes rate (at our choice) for buying Hong Kong dollars.
6.5 We will transact as principal when we enter into any foreign currencies and/or foreign exchange transactions with you.
7. US Dollar/Euro clearing
It is an additional requirement of US dollar and Euro clearing in Hong Kong that:
7.1 You acknowledge that the operation of the US Dollar and Euro clearing systems in Hong Kong is subject to the US Dollar Clearing House Rules and the US Dollar Operating Procedures, and the Euro Clearing House Rules and the Euro Dollar Operating Procedures respectively (in each case as modified from time to time).
7.2 You agree that the Hong Kong Monetary Authority shall not be liable to any person in respect of any claim, loss, damage or expense (including, loss of business, loss of business opportunity, loss of profit, special, indirect or consequential loss) (even if Hong Kong Monetary Authority knew or ought reasonably to have known of their possible existence) of any kind or nature whatsoever arising in whatever manner directly or indirectly from or as a result of anything done or omitted to be done by Hong Kong Monetary Authority bona fide or by the settlement institution, Hong Kong Interbank Clearing Limited or any member of the US Dollar or Euro Clearing House, or any other person in the management, operation or use (including without limitation, the termination and/or suspension of the settlement institution, the Clearing Facilities or any member) of the Clearing House or the Clearing Facilities or any part of any of them.
7.3 You agree that, without prejudice to 7.2 in this Schedule, the Monetary Authority shall not owe any duty or incur any liability to you in respect of any claim, loss, damage or expense (including loss of business, loss of business opportunity, loss of profit, special, indirect or consequential loss) (even if the Monetary Authority knew or ought reasonably to have known of their possible existence) of any kind or nature whatsoever arising in whatever manner directly or indirectly by the giving of any notice, advice or approval in relation or pursuant to the US Dollar Clearing House Rules and the US Dollar Operating Procedures, and the Euro Clearing House Rules and the Euro Dollar Operating Procedures.
8. Debit Cards (ATM Cards)
8.1 A card and password may be issued (or in some cases, allow you to select the password) to you to access through such ATMs (automatic teller machines), point of sale terminals and other devices such accounts and services as are provided by us on the relevant channel from time to time.
8.2 Cheques and cash (but not coins) in the currency notified by us may be deposited into an ATM but are subject to our final verification, which will be binding on you, except for manifest error. If we are aware of a discrepancy, we reserve the right to debit the deposit account with the value of the deposited note(s) which is subsequently verified as invalid. Verification may not take place on the day of deposit. Cheque deposits are accepted for collection only and the proceeds will not be available for withdrawal until the cheques have been cleared.
8.3 Your card may only be used by you and is not transferable. Cards are our property. You will surrender your card to us on request. You will remain responsible for all transactions on your card before its return to us.
8.4 A replacement card may be issued subject to conditions and reasonable charges. A lost card that is subsequently found may not be used without our prior agreement.
8.5 You authorize us to debit your account with the amount of any transaction involving the use of your card or password or both. However, you will not be responsible for any amounts wrongly charged to your accounts and any interest thereon:
(a) in the event of misuse when the card has not been received by you;
(b) for all transactions not authorized by you after we have been given adequate notification that the card or PIN has been lost or stolen or that someone else knows the PIN (unless you have acted fraudulently or with gross negligence, or allowed a third party to use your password, or failed to comply with your obligations under Clause 6.3 or 6.4 of these Terms and Conditions relating to password);
(c) when faults have occurred in the terminals, or other systems used, which cause cardholders to suffer direct loss unless the fault was obvious or advised by a message or notice on display; and
(d) when transactions are made through the use of counterfeit cards.
8.6 A card does not entitle you to credit.
8.7 In the absence of negligence or wilful misconduct, we are not responsible if you are not able to use your card or password or for the malfunctioning of any card, ATM or other device. We are not responsible for any goods or services bought by you with the use of a card or password. You will make any claim only against the supplier of the goods or service.
8.8 Cancelling a card does not cancel the account.
8.9 If we are a party to a shared electronic system, we will not avoid liability to you in respect of any loss arising from the use of the card either caused or contributed by another party to the system.
9. Auto Sweeping Service (for Elite Club Account or e-Age Banking Account only)
9.1 You may utilize the Auto Sweeping Service to transfer funds automatically from a Savings Account to a Current Account of the same currency if the day end balance of such Current Account is overdrawn or the credit limit of any overdraft facility attached to such Current Account is exceeded. For the avoidance of doubt, this service does not extend to transfer of funds in Renminbi.
9.2 Any such transfer will be processed on the next business day subject to there being a sufficient balance on the applicable Savings Account. A transfer of funds from a Savings Account will not occur if the amount of the funds to be transferred does not cover the overdrawn amount of the Current Account or the amount by which the credit limit of any overdraft facility attached to the Current Account is exceeded (by reason of insufficient funds in the relevant Savings Account or the agreed overdraft limit has been or will be exceeded or otherwise).
9.3 The daily maximum limit of automatic transfer of funds from the Hong Kong Dollar Savings Account and from the US Dollar Savings Account shall be set by us and may be changed by us from time to time, as notified to you. Any transfer shall not exceed daily maximum limit and we will only implement the transfer of funds up to the daily maximum limit.
9.4 If we are unable to transfer funds or remit funds from or to the Current Account due to system failure or other reasons beyond our control, we shall not be required to transfer or remit such funds unless and until such time as it is reasonably able to do so. Our obligations under this service shall at all times be subject to our limitation of liabilities as set out in Clause 10 (Limit of our liability) of these Terms and Conditions.
9.5 Overdraft interest at our prevailing rates will be applied to the overdrawn amount of the Current Account or the amount by which the credit limit of any overdraft facility attached to the Current Account is exceeded, until it is settled.
9.6 We may charge such fees and charges for the Auto Sweeping Service as we shall, at our discretion from time to time determine. We are hereby authorized by you to debit the fees, charges, expenses and interest, if applicable, from your designated account as well as any other amount representing actual or contingent liabilities incurred by us as a consequence of performing your instruction.
10. No Bounced Cheques and Auto-Pay Protection Services (for Elite Club Account or e-Age Banking Account only)
10.1 Subject to our agreement, an eligible Account customer who satisfies certain criteria prescribed by us from time to time may elect to use the No Bounced Cheques and Auto-Pay Protection Services which are applicable to Hong Kong Dollar Current Account only.
10.2 By utilizing the No Bounced Cheques and Auto-Pay Protection Services, we will settle (a) any cheques to avoid any bounced cheques and/or (b) any auto-pay instructions if there are insufficient funds for such cheque and/or auto-payment(s) in your Hong Kong Dollar Current Account.
10.3 The maximum limit of amounts that can be transferred on each transfer shall be agreed by you with us from time to time.
10.4 We shall set the maximum amount applicable for settlement of cheques and/or auto-pay instructions under the No Bounced Cheques and Auto-Pay Protection Services.
10.5 Subject to our agreement, you may set the maximum limit for the No Bounced Cheques and Auto-Pay Protection Services, but this amount may not exceed the maximum amount for these services determined by us from time to time. If no maximum amount for the services is set by you, we shall at our discretion determine the maximum amount applicable.
10.6 Interest will be charged by us on the amounts paid by us in settlement of any cheques and/or auto-pay payments at the rates specified by us and notified to you from time to time.
10.7 If the maximum limit set by you or us in respect of the No Bounced Cheques and Auto-Pay Protection Services would be exceeded after payment to settle a cheque/auto-pay instruction, we reserve the right to return such cheque and/or not pay any part of the auto-pay instruction.
10.8 We may (acting reasonably) at any time by notice to you change these services and the requirements under these services.
10.9 Fees and charges for using the No Bounced Cheques and Auto-Pay Protection Services will be charged at the rates and in the manner we determine from time to time, of which we will notify you.
10.10 We may debit interest rate charges, other charges and fees payable by you for the No Bounced Cheques and Auto-Pay Protection Services from the Hong Kong Dollar Current Account applicable to which the No Bounced Cheques and Auto-Pay Protection Services are attached (or such other account as agreed between you and us) at any time.
Schedule 2 : Electronic services
1. Electronic services (on the Internet, telephone, or other electronic network or devices as advised by us) allow you to access such services as are provided by us on the relevant channel from time to time. Your instructions may be processed automatically by computers without oversight.
2. You understand and acknowledge that electronic services are provided as an additional service or channel to receive instructions from you, and shall not be considered as a substitute for other accepted methods of giving instructions. You will use other methods or channels to give instructions to us if electronic services are not available.
3. You acknowledge that if internet banking service is used to purchase securities, such service is offered only in jurisdictions where and when it may be lawfully offered. Such service and information relating to such service are not intended for access or use by persons in other jurisdictions. You are aware of and will observe any applicable laws and regulations.
4. By subscribing to an electronic service, you confirm that you have appropriate equipment and facilities to, and agree to, receive our electronic communications, which may be sent in lieu of paper or other communications.
5. You will not access our electronic services except with an equipment (and software) and in a communications format permitted by us, or for any purpose or in any way other than to access an available service in a reasonable manner. You will ensure that the contents of a message sent by or on your behalf are not inconsistent with applicable law.
6. As between the parties, a contract concluded by electronic messages is concluded in Hong Kong and at the time when our final confirmation of your instructions is dispatched. If you do not receive a confirmation, you must check with us.
7. Electronic messages are treated as a writing signed by the sender. Neither party will contest the validity of a contract concluded by electronic messages on the grounds that it was so concluded.
8. If a re-confirmation has been requested from you, your instructions are not effective unless re-confirmed within time.
9. If your instruction has not been accepted by our system for any reason (for example, after a cut-off time), you should try again. Our system will not reprocess your instruction automatically. Our system may process your instruction without checking even if it conflicts with other information.
10. Your statements of account may be sent to you by posting at a secure location on our website accessible by your password. You will read them without delay.
11. We may accept or reject an instruction received by our system that is not related to an available service on the relevant channel.
12. You will communicate with us in relation to a transaction through the same communication channel. You will, when required, quote the transaction number assigned by us. Acting reasonably, we may use any available channel.
13. You acknowledge that an accepted instruction may be rejected by reason of computer operations. You will check whether your instructions have been executed. We will not notify execution or non-execution.
14. You acknowledge that electronic instructions given by your password may be used to register any accounts for the purposes of an electronic service, so that such accounts may become accessible by electronic instructions.
15. You will not alter, circumvent or interfere with the operation of our services or website. You will not alter any form downloaded by you without our consent.
16. Transactions and messages shown on or printed out from your computer or other equipment are for your reference only.
17. We may download information including identification data to your computer or equipment.
18. You are regarded as having received a communication when it is dispatched by our system or posted on our website.
19. Records (including the statements of account) will only be retained in our system or website for the period reasonably determined by us.
20. Hyperlinks to other sites are provided for your convenience only. They are not our recommendation or endorsement of the other sites. We are not responsible for the contents of the other sites, and have not verified them.
21. Our website is hosted by us and is connected to the Internet via an independent service provider, who is not our agent. While we have selected a reputable service provider, we are not responsible for their act or omission.
22. To the extent applicable, this Schedule also applies to plastic cards issued by us.
23. You are obliged to observe in a timely manner the relevant security measures specified from time to time by us for the use of electronic services.
Schedule 2A: White Form eIPO Online Payment Services
Disclaimer
1. You (the customer), an applicant to subscribe for certain offer of securities, as defined in the Securities and Futures Ordinance (Cap. 571), which may or may not be listed on The Stock Exchange of Hong Kong Limited (the "Offer"), agree to assume the risks associated with conducting on-line bill payment transactions of white form application(s) for electronic initial public offering of securities ("eIPO"), through our electronic services from time to time as more particularly described below ("White Form eIPO Online Payment Services") on an internet website (the "Website") operated and/or maintained by or on behalf of us, Industrial and Commercial Bank of China (Asia) Limited ("ICBC (Asia)", "we", "us" or "our", as applicable, and through the internet, including (i) leakage of data (including but not limited to personal data), loss of data, incorrect data transmission, bugs and virus attack due to the public nature of the internet; and (ii) unauthorized use, system failure, unavailability of services, interception, interruption, transmission blackout or delayed transmission.
2. In providing the White Form eIPO Online Payment Services to you, we are not acting as your investment adviser and shall not be responsible for any loss which you may suffer as a result of your investment using the White Form eIPO Online Payment Services. You shall seek independent professional advice on legal, tax, and other issues in connection with the use of White Form eIPO Online Payment Services, these Terms and Conditions, the Master Terms and Conditions – Banking Services, the relevant information or any offering documentation issued by the issuer or offer or of the securities (the "Issuer") in relation to the applicable offer (the "Offer Documentation") and the online application instruction in respect of each Offer and any transactions and dealings which may affect you under all applicable law.
3. Subject to any applicable laws and regulations, unless caused by our negligence or wilful default, we shall not be liable for any loss, damage or expense suffered by you by virtue of any delay in acting on any instruction or any partial completion of or failure or inability to act on any of your instruction for whatever reason (including, without limitation, any failure or error of any computer or electronic system of equipment).
4. We are authorized, at our discretion, to take such steps as we may consider expedient to enable us to provide the White Form eIPO Online Payment Services including the right to comply with any law, regulation, order, directive, notice or request from any government or regulatory authority (whether or not having the force of law), or rules and regulations of any system providing central clearing and settlement facilities.
5. We shall not have any liability (i) in respect of, (ii) are not responsible for, (iii) have not authorized and (iv) shall not be deemed to have authorized the contents of the Offer Documentation and, where applicable, the application form(s) relating thereto unless we are also the Issuer.
1. White Form eIPO Online Payment Services
1.1 Subject to these Terms and Conditions and the Master Terms and Conditions – Banking Services, as revised from time to time, we provide the White Form eIPO Online Payment Services through the Website for you to make on-line payment for your eIPO application.
1.2 These Terms and Conditions form part of the Master Terms and Conditions – Banking Services. If there is inconsistency between the provisions of these Terms and Conditions and the general provisions of the Master Terms and Conditions – Banking Services, these Terms and Conditions shall prevail to the extent of inconsistency in relation to the provision of White Form eIPO Online Payment Services.
1.3 By accepting these Terms and Conditions, you appoint and authorize us to transfer fund from your designated account(s) with us to the relevant account(s) of the payee(s), from time to time, on behalf of you and in accordance with your instructions. We reserve the right to refuse acting on your instructions if there is insufficient funds in your designated account at the relevant time for settling the application money and related expenses or if, in our opinion, there are reasonable grounds for such refusal. We act as your agent for the purpose of White Form eIPO Online Payment Services and are not the agent of the parties involved in the eIPO.
1.4 You must satisfy the following requirements before the White Form eIPO Online Payment Services will be offered to you:
1.4.1 you are qualified to apply for the IPO securities on the terms and conditions set out in the Offer Documentation;
1.4.2 you are over 18 years of age; and
1.4.3 you have satisfied other requirements which are specified by the Issuer and/or us, if any.
1.5 We may, from time to time, at our absolute discretion and without prior notice, designate the maximum amount of payment that may be made through the White Form eIPO Online Payment Services, including but not limited to for each transaction or for each day or otherwise. Further, for the purpose of calculating such maximum amount of payment, we will take into account the other White Form eIPO Online Payment Services transaction(s) which you may have made on the relevant day.
1.6 Your payment instruction(s), once given under the White Form eIPO Online Payment Services, is irrevocable and may not be withdrawn by you without our prior consent.
1.7 We will assign a reference number, which will be displayed on screen, for the purpose of acknowledging receipt of an instruction to make on-line payment or transfer of funds to the payee through the White Form eIPO Online Payment Services (which for the avoidance of doubt does not constitute an acceptance by the Issuer of an offer by you to subscribe for such securities). You will be deemed to have received the reference number immediately upon such display on screen. We shall not be responsible for separately notifying you your assigned reference number and the amount payable by you for your White Form eIPO Online Payment Services.
1.8 All instructions which have been confirmed and acknowledged by or on behalf of us in the manner described in Clause 1.7 in this Schedule shall be irrevocable and binding on you, whether given by you or by any other person purporting to be you. We shall be under no duty to verify the authority or authenticity of any such instruction.
1.9 We are hereby authorized by you, as per your payment instruction, to:
1.9.1 at our discretion, debit or overdraw the amount of application money (together with any premium, if applicable) from your designated account as well as any other amount representing actual or contingent liabilities incurred by us as a consequence of performing your instruction;
1.9.2 convert any subscription money at our spot rate of exchange if its currency is different from that of the securities. You shall be liable for any exchange rate loss arising from such exchange.
1.10 You shall ensure that sufficient clear funds have been credited into the designated account to cover the payment instructions and the related expenses to be incurred in connection with your instruction when you deliver your payment instruction under the White Form eIPO Online Payment Services.
1.11 When using the White Form eIPO Online Payment Services, you will be required to confirm and verify certain information in respect of the intended payment instruction(s) and designate your account from which the subscription monies and related charges should be debited. You should key in or otherwise input such information and verify its accuracy carefully. We shall not be responsible for any wrongful payment which is caused by any errors or mistakes in the information given by you.
2. Your Responsibilities
You :
2.1 represent, warrant and agree to use the White Form eIPO Online Payment Services in strict compliance with these Terms and Conditions and all provisions set out in the Offer Documentation, the online application instruction, the instruction pages for payment and other instructions set out in the Website;
2.2 authorise us to disclose and transfer to any person in connection with the Offer, or any other person if required by any law, regulation, court order or any government or regulatory authority all information relating to you or if such disclosure and transfer is, in our opinion (acting reasonably), necessary for the provision of the White Form eIPO Online Payment Services or if such disclosure is requested or required in connection with the Offer;
2.3 authorise us to transmit information relating to you to or through and to store that information anywhere in each case as we reasonably think necessary or desirable for the provision of White Form eIPO Online Payment Services;
2.4 represent and undertake that you have all authorizations and consents necessary for the transfer, use, control or processing of personal data and other information furnished to or received by us in connection with or pursuant to the use of the White Form eIPO Online Payment Services;
2.5 shall indemnify us against any losses or liabilities arising out of or in connection with any claims against us that the transfer, use, control or processing of personal data and other information pursuant to our services under the White Form eIPO Online Payment Services infringes any individual's rights or violates any law or regulations.
3. Governing Conditions
3.1 The use of and all transactions and dealings effected by using the White Form eIPO Online Payment Services are subject to these Terms and Conditions, the Master Terms and Conditions – Banking Services, the Master Terms and Conditions – Investment Products, the terms and conditions of the Banking Services & Accounts Application Form, the terms and conditions of the Personal Internet Banking/Phone Banking Services Application/Amendment Form and the Privacy Statement & Disclaimer and other terms and conditions of ICBC (Asia) applicable from time to time including those set out in the online application instruction or elsewhere on the Website. Such disclaimer and other terms and conditions shall apply as if they were expressly extended to the use of the White Form eIPO Online Payment Services.
3.2 Each payment instruction shall also be subject to the terms and conditions of the relevant Offer which are contained in the Offer Documentation relating thereto.
3.3 These Terms and Conditions only set out the specific provisions governing the provision of White Form eIPO Online Payment Services, we shall not be of any concern or liability whatsoever arising from or in connection with the underlying transaction, including application of new shares, between you and the relevant payee to whose account you have effected, or intended to effect payment through the White Form eIPO Online Payment Services.
4. Miscellaneous
4.1 These Terms and Conditions may be amended, modified and varied from time to time. Any amendments to these Terms and Conditions shall become effective subject to our notice provided in any manner as we think appropriate. By continuing to maintain or use the White Form eIPO Banking Services on or after the effective date of amendments, you shall be deemed to have agreed to such amendments.
4.2 No failure to exercise, nor any delay in exercising, on our party, any right or remedy under these Terms and Conditions shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further exercise or the exercise of any other right or remedy. The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive any rights or remedies provided by law.
4.3 If, at any time, any provision of these Terms and Conditions is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
4.4 We will take reasonable precautions to maintain the confidentiality of information relating to you furnished by you to us in connection with the use of White Form eIPO Online Payment Services.
4.5 We shall determine from time to time the type of notice (whether written or any other form) and the mode of communication with respect to each type of notice to be given pursuant to these Terms and Conditions.
Schedule 3 : RMB Account
1. “Renminbi” or “RMB” means the lawful currency for the time being of the People’s Republic of China (“PRC”).
2. “RMB Account” means the RMB Savings Account or any RMB Time Deposit Account with us in your name opened, operated and maintained.
3.Unless otherwise agreed by us, you may only open one RMB Savings Account and/or one RMB Current Account with us (whether in your own name or jointly with another person) subject to the requirement that you hold a valid Hong Kong Identity Card and we may at any time, by 14 days’ prior notice to you, close any other RMB Savings Account(s) and/or RMB Current Account(s) maintained by you with us. The notice may, if necessary under the circumstances, take effect immediately.
4. You may, subject to our discretion, open any number of RMB Time Deposit Account(s) (in your own name or, if the RMB Savings Account is opened jointly with another person, jointly with that person) if you have already opened a RMB Savings Account with us.
5. Deposit into the RMB Savings Account may only be made by depositing Renminbi in cash (in a denomination acceptable to us), by converting HK Dollars (whether in cash or being HK Dollars in a HK Dollar account maintained by you with us) at the prevailing exchange rate determined by us at the time we process your instruction, by transfer from another Renminbi savings account with us maintained by another person in Hong Kong or by such other method as we may from time to time stipulate at our discretion. The method of deposit will be stated in the passbook or statement in respect of the RMB Savings Account against the relevant entry.
6.Except as provided in Clause 7, 8 and 9 in this Schedule and except where we stipulate otherwise, no transfer shall be made from or to the RMB Savings Account.
7. You may transfer funds from the RMB Savings Account to another RMB Savings Account with us maintained by another person in Hong Kong.
8. Transfer of funds may be made between your RMB Savings Account, your RMB Time Deposit Account(s) and your RMB Current Account (if any) as mentioned in Schedule 6 hereto, all under the same name.
9. You may transfer funds from the RMB Savings Account to an account of you under the same name with a financial institution in the PRC designated by you acceptable to us (the “PRC Account”). The aggregate amount of funds transferred by you from the RMB Savings Account under this clause and all other RMB accounts (including RMB Time Deposit Account and RMB Current Account) shall not exceed RMB80,000 (or such other amount as may be determined by regulatory institutions, for example, The People’s Bank of China, from time to time) in a day. You may, subject to applicable laws and regulations in the PRC and in accordance with withdrawal arrangements in the PRC, transfer from the PRC Account the funds transferred under this clause which have not been withdrawn from the PRC Account to the RMB Savings Account.
10. If we are unable to deposit funds into or transfer or remit funds from or to any RMB Account(s) due to system failure or other reasons beyond our control, we shall not be required to deposit, transfer or remit such funds unless and until such time as we are reasonably able to do so.
11. Except where we stipulate otherwise, no withdrawal may be made from, no deposit may be made into and no transfer shall be made from or to the RMB Time Deposit Account(s) unless by way of transfer to and from the RMB Savings Account as stipulated in Clause 6 in this Schedule.
12. Withdrawal from the RMB Savings Account may only be made by withdrawing Renminbi in cash, by withdrawing HK Dollars in cash (by converting RMB in the RMB Savings Account into HK Dollars at the prevailing exchange rate determined by us at the time we process your instruction) or by such other method as we may from time to time stipulate at our discretion.
13. Where you request a withdrawal in Renminbi from the RMB Savings Account, we shall be entitled to make payments, subject to the availability of bank notes in us, by cash payment in Renminbi or such other methods as we may decide at our discretion.
14. The method of withdrawal will be stated in the passbook or statement in respect of the RMB Savings Account against the relevant entry.
15. If payments are delayed or cannot be made in time due to system failure or other reasons beyond our control, we may at our discretion decide not to make such payments unless and until such time as we are reasonably able to do so.
16. Renminbi is currently not freely convertible and the conversion of Renminbi may be subject to certain policies, regulatory requirements and/or other restrictions (which may be subject to changes from time to time without notice) as determined by the relevant regulatory institutions, for example, The People’s Bank of China. The actual arrangements provided by us may depend on the policies, regulatory requirements and/or other restrictions prevailing at the relevant time.
17. We may levy a service charge on withdrawals from or deposits into the RMB Savings Account at such rate as we may from time to time reasonably determine. The charge shall be payable by you by such means as may be reasonably determined by us and we shall be entitled to deduct the charge from the RMB Savings Account.
18. We may (but are not obliged to) require you to provide such documents or information as we reasonably think fit to ensure that applicable laws and regulations in the PRC in relation to the RMB Account(s) (including those promulgated by State Administration of Foreign Exchange of the PRC) have been complied with.
19. All transactions in respect of the RMB Account(s) shall be completed at the counters at our principal place of business or our branches in Hong Kong or such other places or through other channels such as the telephone, the internet or an automated teller machine as we may from time to time stipulate at our discretion. Where we so stipulate, instructions given over the telephone, via the internet or at an automated teller machine shall be given in accordance with the respective terms and conditions in respect of those services.
20. Use of Renminbi cheques in Hong Kong should comply with the usual banking practices in Hong Kong.
21. You acknowledge and agree that the operation of the RMB Account(s) shall be subject to any restrictions which may from time to time be imposed on the Bank (which restrictions may have immediate effect if so required by any regulator or other authority in Hong Kong or mainland China or by the clearing institution for Renminbi clearing and settlement services in Hong Kong).
22. You shall comply with all laws of Hong Kong and mainland China, and all rules, conditions, regulations and other requirements from time to time of any regulator or other authority in Hong Kong or mainland China which are applicable to Renminbi services.
23.We may:
23.1 take any action, with or without notice to you, to comply with any requirements of the clearing institution for Renminbi clearing and settlement services in Hong Kong, any agent bank in mainland China through which we conduct Renminbi clearing and settlement services, or any regulator or other authority in Hong Kong or mainland China;
23.2 without prejudice to Sub-clause 23.1 above, provide any information about you, your accounts and transactions to any entity referred to in Sub-clause 23.1 above;
23.3 delay or decline, without giving reason and without liability, to execute any instructions from you or to accept any Renminbi deposit; and
23.4 at any time in any way vary, suspend, withdraw or terminate all or any part of the Renminbi services, or impose any conditions or restrictions, whether or not any such action applies to any of our other customers.
Schedule 4: Integrated Account
1. Eligible applicant may, subject to our discretion and such terms and conditions as specified from time to time, apply to open and maintain an Integrated Account which comprises several sub-accounts as listed in the Schedule of Integrated Account Services.
2. As an Integrated Account customer, you will be entitled to certain services and privileges offered by us and/or open any one or more accounts at any time by issuing an instruction in such form as may be acceptable to us.
3. Where services and privileges of Integrated Account are provided to you, you agree to be bound by these Terms and Conditions governing the Integrated Account and any specific terms and conditions for particular services and accounts. If there is any inconsistency, the provisions for particular services and/or account(s) will prevail over these provisions.
4. The use of and all transactions and dealings effected by using the Integrated Account are subject to these Terms and Conditions, the Master Terms and Conditions – Banking Services, the terms and conditions of the Banking Services & Accounts Application Form, the Circular to Customers and Other Individuals relating to the Personal Data (Privacy) Ordinance and all other terms and conditions of our Bank applicable from time to time. Such terms and conditions shall apply as if they were expressly extended to the Integrated Account.
5. A monthly fee shall be paid by all Integrated Account customers. We may adjust the Integrated Account services fee payable by Integrated Account customers periodically.
6. Unless we notify you to the contrary, if your average daily total liquid assets including all deposit balances, investment portfolio held with us (in the Integrated Account or other accounts you have with us) and any other assets as from time to time determined by us shall in the previous three consecutive months or other period specified by us reach HKD10,000 or above (or such amount as we determine), the monthly fee payable by you for the following month shall be waived.
7. We may debit any fees and charges payable by you for the Integrated Account services from your designated account held with us or any sub-accounts of the Integrated Account.
8. If your total liquid assets fall below limits as determined by us from time to time and you fail to pay the fees and charges referred to in Clause 6 above, or you have insufficient funds in the designated account or any sub-accounts to cover such fees and charges payable by you, then we may at our discretion, terminate or suspend any or all of the Integrated Account services and privileges which you are entitled to as an Integrated Account customer. We will give you prior written notification of such termination or suspension.
9. All debit cards and cheque books (if applicable) must be returned to us upon termination of the Integrated Account by you or us.
10. We may (acting reasonably) at any time by notice to you, add new banking services for Integrated Account customer, or replace, suspend, vary or terminate any services as appropriate.
11. Subject to any applicable laws and regulations, unless caused by our negligence or wilful default, we shall not be liable for any loss, damage or expense suffered by you by virtue of any delay in acting on any instruction or any partial completion of or failure or inability to act on any of your instructions for whatever reason (including, without limitation, any failure or error of any computer or electronic system or equipment).
12. A monthly consolidated statement shall be provided to you in respect of the various sub-accounts under the Integrated Account.
Schedule of Integrated Account Services
1. HKD Statement Savings Account (“Integrated Hong Kong Dollar Savings Account”)
2. HKD Current Account (“Integrated Hong Kong Dollar Current Account”)
3. Multi-currency Statement Savings Account
4. Time Deposit Account (“Integrated Time Deposit Account”)
5. USD Current Account
6. RMB Current Account (only available for holders of a Hong Kong Identity Card)
7. RMB Savings Account (only available for holders of a Hong Kong Identity Card)
8. ATM services
9. Electronic services
Unless we notify you otherwise, accounts referred to in items 1 to 7 above are collectively referred to as the “Integrated Sub-Accounts” and each an “Integrated Sub-Account”, accounts referred to in items 1, 3 and 7 above are collectively referred to as the “Integrated Savings Accounts” and each an “Integrated Savings Account” and the accounts referred to in items 2, 5 and 6 above are collectively referred to as the “Integrated Current Accounts” and each an “Integrated Current Account”.
Schedule 5 : RMB Company Account
1. “Renminbi” or “RMB” means the lawful currency for the time being of the People’s Republic of China (“PRC”).
2. “RMB Company Account” means the RMB Savings Account or any RMB Time Deposit Account opened by a customer with us who must be HK commercial establishments that provide retail, catering, accommodation, transportation services, communications services, medical services and educational services (or such other business as may be determined by us from time to time).
3. We shall at our discretion open and maintain a RMB Company Account for you and may (but are not obliged to) require you to provide such documents or information as we think fit to prove that you have been engaged in any of the services mentioned in Clause 2 in this Schedule.
4. Unless otherwise agreed by us, you may only open one RMB Savings Account with us and we may at any time, by 14 days’ prior notice to you, close any other RMB Savings Account(s) maintained by you with us. The notice may, if necessary under the circumstances, take effect immediately.
5. You may, subject to our discretion, open any number of RMB Time Deposit Account(s) if you have already opened a RMB Savings Account with us.
6. Deposit into the RMB Savings Account may only be made by depositing Renminbi in cash (in a denomination acceptable to us) or by such other method as we may from time to time stipulate at our discretion. The method of deposit will be stated in the passbook or statement in respect of the RMB Savings Account against the relevant entry.
7. Except as provided in Clause 8 in this Schedule and except where we stipulate otherwise, no transfer shall be made from or to the RMB Savings Account. Except where we stipulate otherwise, no cheque shall be deposited or drawn in respect of any RMB Account.
8. Transfer of funds may be made between your RMB Savings Account and your RMB Time Deposit Account(s) under the same name.
9. Except where we stipulate otherwise, no withdrawal may be made from, no deposit may be made into and no transfer shall be made from or to the RMB Time Deposit Account(s) unless by way of transfer to and from the RMB Savings Account as stipulated in Clause 8 in this Schedule.
10. Withdrawal from the RMB Savings Account may only be made by withdrawing Renminbi in cash, by withdrawing HK Dollars in cash (by converting RMB in the RMB Savings Account into HK Dollars at the prevailing exchange rate determined by us at the time we process your instruction) or by such other method as we may from time to time stipulate at our discretion.
11. Where you request a withdrawal in Renminbi from the RMB Savings Account, we shall be entitled to make payments, subject to the availability of bank notes in us, by cash payment in Renminbi or such other methods as we may decide at our discretion.
12. The method of withdrawal will be stated in the passbook or statement in respect of the RMB Savings Account against the relevant entry.
13. If payments are delayed or cannot be made in time due to system failure or other reasons beyond our control, we may at our discretion decide not to make such payments unless and until such time as we are reasonably able to do so.
14. We may levy a service charge on withdrawals from or deposits into the RMB Savings Account at such rate as we may from time to time reasonably determine. The charge shall be payable by you by such means as may be reasonably determined by us and we shall be entitled to deduct the charge from the RMB Savings Account.
15. We may (but are not obliged to) require you to provide such documents or information as we reasonably think fit to ensure that applicable laws and regulations in the PRC in relation to the RMB Account(s) (including those promulgated by State Administration of Foreign Exchange of the PRC) have been complied with.
16 All transactions in respect of the RMB Account(s) shall be completed at the counters at our principal place of business or our branches in Hong Kong or such other places or through other channels such as the telephone, the internet or an automated teller machine as we may from time to time stipulate at our discretion. Where we so stipulate, instructions given over the telephone, via the internet or at an automated teller machine shall be given in accordance with the respective terms and conditions in respect of those services.
Schedule 6 : RMB Current Account
1. “Renminbi” or “RMB” means the lawful currency for the time being of the People’s Republic of China (“PRC”).
2. “RMB Current Account” means the RMB Current Account with us in your name opened, operated and maintained.
3. “PBOC” means The People’s Bank of China.
4. Unless otherwise agreed by us, you may only open one RMB Current Account with us (whether in your own name or jointly with another person) subject to the requirement that you hold a valid Hong Kong Identity Card and we may at any time, by 14 days’ prior notice to you, close any other RMB Current Account(s) maintained by you with us (whether in your own name or jointly with another person). The notice may, if necessary under the circumstances, take effect immediately.
5. Deposit into the RMB Current Account may be made by depositing Renminbi in cash (in a denomination acceptable to us), by converting HK Dollars (whether in cash or being HK Dollars in a HK Dollar account maintained by you with us) at the prevailing exchange rate determined by us at the time we process your instruction, by transfer from any Renminbi savings account with us maintained by you or another person in Hong Kong or by such other method as we may from time to time stipulate at our discretion. The method of deposit will be stated in the statement in respect of the RMB Current Account against the relevant entry.
6. We may from time to time set restrictions that apply to RMB transactions in the RMB Current Account and may take all actions necessary to comply with the rules and regulations of the PBOC, the State Administration of Foreign Exchange of the PRC, the Hong Kong Monetary Authority, the clearing institution and any other authorities.
7. Without prejudice to Clause 6 in this Schedule and irrespective of whether the RMB Current Account has sufficient funds, we have the right to deal with the operation of the RMB Current Account and any cheque drawn on it in the manner as follows without liability:
(a) Any one cheque exceeding RMB 80,000 (or such other amount as may be determined by the regulatory institution, for example, PBOC, from time to time) drawn on the RMB Current Account shall be bounced.
(b) The aggregate payments in respect of cheques drawn on the RMB Current Account shall not exceed RMB 80,000 (or such other amount as may be determined by the regulatory institution, for example, PBOC, from time to time) per day. If the aggregate payments in respect of cheques drawn on the RMB Current Account in aggregate per day exceed RMB 80,000, we shall bounce any one or more of such cheques at our absolute discretion.
(c) We shall put in place a cap of RMB80,000 (or such other amount as may be determined by the regulatory institution, for example, PBOC, from time to time) on the day-end balance of the RMB Current Account. We are entitled to transfer any excess amount to another account under the same name which is designated by you and maintained with us. We are also entitled at our discretion not to process the deposit/transfer transaction or process such transaction on the next business day if the day-end balance of the RMB Current Account exceeds RMB80,000 (or such other amount as may be determined by the regulatory institution, for example, PBOC, from time to time).
(d) No overdraft of the RMB Current Account shall be allowed and you shall maintain sufficient balance in the RMB Current Account at all times. If there is insufficient balance in the RMB Current Account, we are entitled (but not obliged) to transfer funds from your other accounts with us to cover the shortfall subject to your prior consent and this fund transfer must be completed within the next business day. We are entitled to charge a handling fee for such fund transfer at such rate as we may stipulate from time to time. We may by 14 days’ prior notice to you close the RMB Current Account at our discretion in case such fund transfer arrangements are requested by you to cover the insufficient balance in the RMB Current Account in such frequency as we may determine to be excessive under the circumstances.
(e) Unless otherwise agreed by us, you are not allowed to effect any transfer of funds from or to the RMB Current Account.
(f) Renminbi is currently not freely convertible and the conversion of Renminbi may be subject to certain policies, regulatory requirements and/or other restrictions (which may be subject to changes from time to time without notice) as determined by the relevant regulatory institutions, for example, PBOC. The actual arrangements provided by us may depend on the policies, regulatory requirements and/or other restrictions prevailing at the relevant time. Exchange transactions shall only be effected through the methods as mentioned in Clause 13 of this Schedule.
(g) Subject to obtaining our prior consent, you may transfer funds from the RMB Current Account to an account of you under the same name with a financial institution in the PRC designated by you acceptable to us (the “PRC Account”). The aggregate amount of funds transferred by you from the RMB Current Account and all other RMB accounts (including RMB Savings Account and RMB Time Deposit Account) shall not exceed RMB80,000 (or such other amount as may be determined by the regulatory institution, for example, PBOC, from time to time) in a day. Such transaction for transfer of funds shall only be effected through the methods as mentioned in Clause 13 of this Schedule. You may, subject to applicable laws and regulations in the PRC and in accordance with the withdrawal arrangements in the PRC, transfer from the PRC Account the funds transferred under this clause which have not been withdrawn from the PRC Account to the RMB Current Account.
(h) Unless otherwise agreed by us, no cash withdrawal from the RMB Current Account is allowed. Where your request for a withdrawal of cash in Renminbi from the RMB Current Account is allowed by us, we shall be entitled to make payments, subject to the availability of bank notes in us, by cash payment in Renminbi or such other methods as we may decide at our discretion.
(i) The method of withdrawal will be stated in the statement in respect of the RMB Current Account against the relevant entry.
8. If we are unable to deposit funds into or transfer or remit funds from or to the RMB Current Account due to system failure or other reasons beyond our control, we shall not be required to deposit, transfer or remit such funds unless and until such time as we are reasonably able to do so.
9. Except where we stipulate otherwise in this Schedule, no withdrawal may be made from, no deposit may be made into and no transfer shall be made from or to the RMB Current Account.
10. If payments are delayed or cannot be made in time due to system failure or other reasons beyond our control, we may at our discretion decide not to make such payments unless and until such time as we are reasonably able to do so.
11. We may levy a service charge on any transactions through the RMB Current Account at such rate as we may from time to time reasonably determine. The charge shall be payable by you by such means as may be reasonably determined by us and we shall be entitled to deduct the charge from the RMB Current Account.
12. We may (but are not obliged to) require you to provide such documents or information as we reasonably think fit to ensure that applicable laws and regulations in the PRC in relation to the RMB Current Account (including those promulgated by State Administration of Foreign Exchange of the PRC) have been complied with.
13. All transactions for transfer of funds, exchange and remittances in respect of the RMB Current Account shall be completed at the counters at our principal place of business or our branches in Hong Kong or such other places or through other channels such as the telephone, the internet or an automated teller machine as we may from time to time stipulate at our discretion. Where we so stipulate, instructions given over the telephone, via the internet or at an automated teller machine shall be given in accordance with the respective terms and conditions in respect of those services.
14. Without prejudice to Clause 6 of this Schedule, cheques drawn on the RMB Current Account will be subject to the rules from time to time in force for the RMB Settlement System established by the Hong Kong Interbank Clearing Limited.
15. The terms and provisions relating to “Cheques” in Clause 4 of Schedule 1 to these Master Terms and Conditions shall apply to this Schedule for operation of the RMB Current Account, save and except Clause 4.11 thereof. If there is inconsistency, the provisions in this Schedule will prevail over those terms and provisions for “Cheques” as aforesaid.
Schedule 7: Elite Club Banking Services and e-Age Banking Account Services
1. Elite Club banking services and e-Age Banking Account services are integrated banking services provided by us to eligible customers on such terms and conditions as specified from time to time.
2. As an Elite Club banking services customer or e-Age Banking Account services customer, you will be entitled to certain services and privileges offered by us and/or open any one or more accounts at any time by issuing an instruction in such form as may be acceptable to us. Certain services and/or privileges are only available to Elite Club banking services customers who open an Elite Club Account or e-Age Banking Account customers respectively.
3. Where services and privileges of Elite Club banking services or e-Age Banking Account services are provided to you, you agree to be bound by these Terms and Conditions governing the Elite Club banking services or e-Age Banking Account services respectively and any specific terms and conditions for particular services and accounts. If there is any inconsistency, the provisions for particular services and/or account(s) will prevail over these provisions.
4. The use of and all transactions and dealings effected by using the Elite Club banking services or e-Age Banking Account services are subject to these Terms and Conditions, the Master Terms and Conditions – Banking Services, the terms and conditions of the Banking Services & Accounts Application Form, the Circular to Customers and Other Individuals relating to the Personal Data (Privacy) Ordinance and all other terms and conditions of our Bank applicable from time to time. Such terms and conditions shall apply as if they were expressly extended to the Elite Club banking services or e-Age Banking Account services.
5. Subject to these Terms and Conditions and compliance with the necessary procedures, you may enroll for Elite Club banking services or e-Age Banking Account services if you satisfy the following requirements:
5.1 You have satisfied the total liquid assets requirement and other requirements which are specified by us for Elite Club banking services and e-Age Banking Account services respectively, if any; and
5.2 (for Elite Club banking services only) You are an individual and not a trust. Subject to our approval, a company, a partnership, a sole proprietorship, an association or a union can only enroll for certain Elite Club banking services but is not eligible to open an Elite Club Account.
6. A monthly fee shall be paid by all Elite Club banking services customers and e-Age Banking Account customers. We may adjust the Elite Club banking services fee and e-Age Banking Account services fee payable by Elite Club banking services customers and e-Age Banking Account services customers periodically.
7. Unless we notify you to the contrary, (for Elite Club banking services) if your average daily total liquid assets including all deposit balances, investment portfolio held with us (in the Elite Club Account (if applicable) or other accounts you have with us) and any other assets as from time to time determined by us shall in the previous three consecutive months or other period specified by us reach HKD800,000 or above (or such amount as we determine), the monthly fee payable by you for the following month shall be waived; and (for e-Age Banking Account services) if your average daily total liquid assets including all deposit balances, investment portfolio held with us (in the e-Age Banking Account (if applicable) or other accounts you have with us) and any other assets as from time to time determined by us shall in the previous three consecutive months or other period specified by us reach HKD100,000 or above (or such amount as we determine), the monthly fee payable by you for the following month shall be waived.
8. We may debit any fees and charges payable by you for the Elite Club banking services and e-Age Banking Account services from your designated account held with us.
9. If your total liquid assets fall below limits as determined by us from time to time and you fail to pay the fees and charges referred to in Clause 7 in this Schedule, or you have insufficient funds in the designated account to cover such fees and charges payable by you, then we may at our discretion, terminate or suspend any or all of the Elite Club banking services or e-Age Banking Account services and privileges which you are entitled to as an Elite Club banking services customer or e-Age Banking Account services customer. We will give you prior written notification of such termination or suspension.
10. As an Elite Club banking services customer, you will be issued (a) an Elite Club VIP Card, which shall be used for identification purposes only, or (b) if you choose to open an Elite Club Account, an Elite Club Account Debit Card. As an e-Age Banking Account services customer, you will be issued an e-Age Banking Account Debit Card. Our records shall, except for manifest error, be conclusive evidence as to whether you are an Elite Club banking services customer or e-Age Banking Account services customer.
11. An Elite Club VIP Card and an Elite Club Account Debit Card may only be used by the applicable Elite Club banking services customer and is not transferable. An e-Age Banking Account Debit Card may only be used by the applicable e-Age Banking Account services customer and is not transferable. All card(s) issued to you must be returned to us upon termination of the Elite Club banking services or e-Age Banking Account services.
12. We may (acting reasonably) at any time by notice to you, add new banking services to the Elite Club banking services or e-Age Banking Account services, or replace, suspend, vary or terminate any Elite Club banking services or e-Age Banking Account services as appropriate.
13. Subject to any applicable laws and regulations, unless caused by our negligence or wilful default, we shall not be liable for any loss, damage or expense suffered by you by virtue of any delay in acting on any instruction or any partial completion of or failure or inability to act on any of your instructions for whatever reason (including, without limitation, any failure or error of any computer or electronic system or equipment).
Schedule 8: Elite Club Account and e-Age Banking Account
1. An individual applicant may, subject to our discretion, apply to open and maintain an Elite Club Account and/or e-Age Banking Account with us. A customer who has opened an Elite Club Account and/or e-Age Banking Account will become an Elite Club Account services customer and/or e-Age Banking Account services customer automatically. As an Elite Club Account customer and/or e-Age Banking Account customer, you will be issued with an Elite Club Account Debit Card and/or e-Age Banking Account Debit Card.
2. You agree that each of the core banking services as listed in the Schedule of Elite Club Account Services and e-Age Banking Account Services below and any other banking services which we may from time to time include under an Elite Club Account (the “Elite Club Account”) and e-Age Banking Account (the “e-Age Banking Account”) are made available by us subject to our terms and conditions applicable from time to time to such service or account (including the relevant account mandates and customer user guides) and you agree to be bound by such terms and conditions.
3. You shall be deemed to have (a) closed all sub-accounts under your Elite Club Account or e-Age Banking Account and (b) terminated your entitlement to the Elite Club Account services or e-Age Banking Account services upon the termination of your Elite Club Account or e-Age Banking Account.
4. Fund Sweeping Service
4.1 You may utilize the Fund Sweeping Service to give instructions for the purchasing of currencies selected by you by transferring funds from an Elite Club Sub-account to another Elite Club Sub-account or from an e-Age Banking Sub-Account to another e-Age Banking Sub-Account or vice versa, when certain pre-set criteria with us are met.
4.2 The criteria that can be pre-set are:
(a) Exchange Rate Criteria
Subject to our agreement, funds in a fixed or variable amount will be transferred at regular intervals if a target exchange rate set by you in respect of an approved currency matches that quoted by us.
(b) Balance Criteria
Subject to our agreement, a fixed or variable amount may be transferred at regular intervals, provided that a minimum amount (the “Minimum Balance”) is maintained in the account to be debited.
You must meet the Minimum Balance to utilize this service.
(c) Frequency Criteria
Funds may be transferred at regular intervals agreed by us.
4.3 We may prescribe or vary at our discretion from time to time (of which we shall notify you):
(a) the currencies available under the Fund Sweeping Service;
(b) the minimum and maximum transfer amounts of each currency;
(c) the timing and frequencies at which transfers may be made by you;
(d) the minimum or maximum number of transfer instructions which may be set up by you.
4.4 You may determine the maximum number of transfer instructions for the Exchange Rate Criteria and/or the Balance Criteria for a specific period. Once we have performed transfers up to the maximum number as instructed by you (a “Standing Instruction”), such Standing Instructions shall be deemed to be automatically terminated and thereafter we will only act on other transfer instructions from you.
4.5 Your instruction for any Fund Sweeping Service will not be effective until after we have processed such instruction. Such instruction shall constitute an application for transferring funds pursuant to these Terms and Conditions, any other applicable terms and conditions and all applicable laws and regulations. If there is any inconsistency, the provisions for particular services and/or account(s) will prevail over these general provisions.
4.6 The availability of this service will be determined by us from time to time and it may be suspended for market or other reasons at our discretion. The service may also not be available due to the volume of transactions or market or other conditions.
4.7 You shall ensure that sufficient funds are in the relevant accounts to allow your instructions to be processed (together with any fees, charges and interest, if applicable) and the related expenses to be paid in connection with your instructions under the Fund Sweeping Service.
4.8 Transfers will not be made if:
(a) there are insufficient funds in the relevant account to be debited; or
(b) there are any irregularities concerning the relevant account; or
(c) there are technical or other operation reasons for not making such transfers.
4.9 We will determine whether the amount of funds in an Elite Club Sub-Account or e-Age Banking Sub-Account as appropriate will be sufficient for the proposed transfer based on:
(a) the balance at the time of actual transfer on the execution date if the transfer involves exchange; or
(b) the day-end balance one business day before the execution date if the transfer does not involve any exchange.
4.10 We shall at our absolute discretion, determine from time to time, the timing and frequencies to monitor the Exchange Rate Criteria against our prevailing buying rate or selling rate. We shall be under no obligation to monitor the Exchange Rate Criteria elected by you against the rates prevailing in the relevant foreign market on a real time basis nor to effect any currency transfer at such rates.
4.11 If any date of transfer falls on a non-business day, we shall perform your instructions on the next business day.
4.12 If on any date, the criteria elected by you have been fulfilled more than once, we will only be obliged (unless you instruct us otherwise) to transfer funds only once per day.
4.13 You shall be liable for any fees, charges, expenses and interest, if any, resulting from an instruction when there are insufficient fund in your account to cover the transfer instruction or for whatever reason other than our negligence or wilful default. We are hereby authorized by you to debit the fees, charges, expenses and interest, if applicable, from your designated account as well as any other amount representing actual or contingent liabilities incurred by us as a consequence of performing your instruction.
5. Auto Pledged Overdraft Line (for Elite Club Account only)
A credit line (“Auto Pledged Overdraft Line”) is available under the Elite Club Account subject to such terms specified by us from time to time by notification and to these Terms and Conditions. You agree that:
(a) we reserve the right to grant, cancel, review and/or revise the Auto Pledged Overdraft Line at any time in our absolute discretion;
(b) the Auto Pledged Overdraft Line shall be made available under the Hong Kong Dollar Current Account under the Elite Club Account only;
(c) the pre-defined limit of the Auto Pledged Overdraft Line shall be subject to variation from time to time at our discretion. You may choose to reduce such limit;
(d) any of your assets held with us (as agreed between you and us) shall not be released whilst the Auto Pledged Overdraft Line is in debit balance;
(e) interest on the Auto Pledged Overdraft Line shall accrue at the rate or rates determined and be subject to variation from time to time by us in our absolute discretion for Elite Club Account customers. We will as soon as practicable, notify you of such variation to the interest rate(s). We may debit any interest payable under the Auto Pledged Overdraft Line from the Elite Club Hong Kong Dollar Current Account (or such other account as agreed between you and us) at any time;
(f) the consolidated statement on the Elite Club Account will detail the total amount outstanding on the Hong Kong Dollar Current Account on the statement date (the “Outstanding Debit Balance”). Payment of the Outstanding Debit Balance effected by cheque or other means will be accepted on and subject to these Terms and Conditions;
(g) we reserve the overriding right to suspend the Auto Pledged Overdraft Line or to demand immediate repayment of the Auto Pledged Overdraft Line outstanding together with interest accrued and fees and other amounts payable in respect of the Auto Pledged Overdraft Line outstanding at any time in our absolute discretion;
(h) you will notify us in writing of any change of address and employment.
6. Miscellaneous
6.1 A monthly consolidated statement shall be provided to you in respect of the various sub-accounts under the Elite Club Account or e-Age Banking Account.
6.2 We may debit any fees and charges payable by an Elite Club Account customer and e-Age Banking Account customer from any sub accounts of the Elite Club Account or e-Age Banking Account.
6.3 Subject to any applicable laws and regulations, unless caused by our negligence or wilful default, we shall not be liable for any loss, damage or expense suffered by you by virtue of any delay in acting on any instruction or any partial completion of or failure or inability to act on any of your instruction for whatever reason (including, without limitation, any failure or error of any computer or electronic system or equipment).
6.4 If the Elite Club Account customer or e-Age Banking Account customer has insufficient funds in your account or insufficient credit with us to cover fees and charges payable by you, we may terminate or suspend all privileges which you are entitled as an Elite Club Account customer or e-Age Banking Account customer.
6.5 All debit cards and cheque books must be returned to us upon termination of the Elite Club Account or e-Age Banking Account by you or us.
6.6 All privileges and benefits offered by us and any of our designated merchants to you and your subscribed services will cease automatically upon termination of the Elite Club Account or e-Age Banking Account.
Schedule of Elite Club Account Services
1. HKD Statement Savings Account (“Elite Club Hong Kong Dollar Savings Account”)
2. HKD Current Account (“Elite Club Hong Kong Dollar Current Account”)
3. Multi-currency Statement Savings Account
4. Time Deposit Account (“Elite Club Time Deposit Account”)
5. USD Current Account
6. RMB Current Account (only available for holders of a Hong Kong Identity Card)
7. RMB Savings Account (only available for holders of a Hong Kong Identity Card)
8. ATM services
9. Electronic services
Unless we notify you otherwise, accounts referred to in items 1 to 7 above are collectively referred to as the “Elite Club Sub-Accounts” and each an “Elite Club Sub-Account”, accounts referred to in items 1, 3 and 7 above are collectively referred to as the “Elite Club Savings Accounts” and each an “Elite Club Savings Account” and the accounts referred to in items 2, 5 and 6 above are collectively referred to as the “Elite Club Current Accounts” and each an “Elite Club Current Account”.
Schedule of e-Age Banking Services
1. HKD Statement Savings Account (“e-Age Banking Hong Kong Dollar Savings Account”)
2. HKD Current Account (“e-Age Banking Hong Kong Dollar Current Account”)
3. Multi-currency Statement Savings Account
4. Time Deposit Account (“e-Age Banking Time Deposit Account”)
5. USD Current Account
6. RMB Current Account (only available for holders of a Hong Kong Identity Card)
7. RMB Savings Account (only available for holders of a Hong Kong Identity Card)
8. ATM services
9. Electronic services
Unless we notify you otherwise, accounts referred to in items 1 to 7 above are collectively referred to as the “e-Age Banking Sub-Accounts” and each an “e-Age Banking Sub-Account”, accounts referred to in items 1, 3 and 7 above are collectively referred to as the “e-Age Banking Savings Accounts” and each an “e-Age Banking Savings Account” and the accounts referred to in items 2, 5 and 6 above are collectively referred to as the “e-Age Banking Current Accounts” and each an “e-Age Banking Current Account”.
Schedule 9: ICBC(Asia) Messaging
1. Definitions
“Communications Service” means a telecommunications, connections, network or other service used by you to receive ICBC(Asia) messaging.
“e-address” means a mobile telephone number, an email address or any other destination to which to send an ICBC(Asia) messaging to you.
“ICBC(Asia) messaging” means an electronic message, including in the form of a SMS or short text message, an email or another form of electronic message, as we may determine from time to time, to be used for the purposes of this Service.
“Equipment” means a mobile telephone, a computer of any type, a personal digital assistant or any device, media or equipment capable of and used to receive an ICBC(Asia) messaging.
“Service Provider” means a provider of Communications Service.
2. Scope of this Service
2.1 This Service consists of the despatch of ICBC(Asia) messaging to your e-address. Part of this Service may consist of notifications in relation to the operation of your account(s) with us, which you may, in the manner determined by us, select to use from time to time.
2.2 By subscribing for this Service, you will also agree to receive ICBC(Asia) messaging which promote our products or services, or those of a third party selected by us. You may notify us by an appropriate means if you do not wish to receive promotional ICBC(Asia) messaging.
2.3 We may from time to time set, vary, modify, expand or reduce any conditions, operations, requirements, availability, scope or features of this Service or any aspects thereof, or impose any restrictions, or suspend, withdraw or cancel this Service or any part of it, without notice and without liability.
2.4 This Service is not intended for use by persons located or resident in a place where the despatch of ICBC(Asia) messaging may be restricted or prohibited by law. You will observe any applicable restrictions and conditions in using this Service.
2.5 ICBC(Asia) messaging should not be regarded as an offer, solicitation or recommendation to buy, subscribe for or sell any product or service (including investment, deposit, insurance and loan).
2.6 Any ICBC(Asia) messaging is for your reference only. It is not evidence of any transaction to which it relates. You should verify the information in each ICBC(Asia) messaging before relying or acting on it.
3. Use of this Service
3.1 By subscribing to this Service, you confirm that you have and will, at your own cost, maintain appropriate Equipment and Communications Service (including sufficient capacity) to, and agree to, receive ICBC(Asia) messaging at all times.
3.2 We may specify the type or capacity of Equipment and Communications Service which may be used for the purposes of this Service.
3.3 For the purposes of this Service, you will register one or, if we request, more e-addresses with us. ICBC(Asia) messaging may be sent to your registered e-address, until we have received your effective notification of change. You will notify us without delay, if there is any change to any of your registered e-addresses, if your Equipment is lost or stolen, or if your Communications Service is changed, suspended or disconnected.
3.4 We will send you a welcome letter to your registered correspondence address and e-address to confirm your registration for this Service. You must contact your branch if you do not receive this letter.
3.5 All ICBC(Asia) messaging sent to your e-address registered with us will be deemed to be delivered to you at the time when the ICBC(Asia) messaging was sent by us. If in our opinion ICBC(Asia) messaging sent to your e-address registered with us might not reach you, we may at our discretion stop sending further ICBC(Asia) messaging to you.
3.6 An ICBC(Asia) messaging will only be sent once unless we determine otherwise. If you delete an ICBC(Asia) messaging, it will not be sent again. If for any reason, you do not receive an ICBC(Asia) messaging, we will not be responsible to re-send it to you.
3.7 All ICBC(Asia) messaging are one-way communications and you should not reply to them. If you are requested to reply to us, you should send your reply to our designated e-address.
3.8 If you do not suspend this Service when you are outside Hong Kong, ICBC(Asia) messaging will continue to be sent to you, and all related fees, charges and expenses will be borne by you (including those of your Service Provider).
4. Security
4.1 You will safeguard your Equipment and take all reasonable precautions to prevent unauthorised persons accessing ICBC(Asia) messaging.
4.2 You should never respond to a request purportedly from us to provide your personal, account or security details such as a password. Any such purported request or other irregularity must be reported to us immediately.
5. Limit of liability
5.1 You acknowledge that there are risks associated with sending of ICBC(Asia) messaging over open or third party networks or services, including the risks of ICBC(Asia) messaging being read, intercepted, altered, corrupted or misused by unauthorised persons, and malfunctioning, inadequacy, suspension or failure of software, equipment, system, network or service, and agree to accept all risks in connection with this Service.
5.2 We will not be responsible for any act or omission of your Service Provider, or for any fee, charge or other amount charged by them in connection with your use of this Service.
5.3 We will not be responsible for any loss or damage to your data, software, Equipment or other property resulting from your use of this Service unless such loss or damage is directly and solely caused by our negligence or wilful misconduct.
5.4 This Service is an additional service provided by us and if it is not available at any time for any reason, you will have no claim against us and will use other means to obtain the information which would otherwise be provided through this Service.
6. Charges
6.1 Certain type(s) of ICBC(Asia) messaging (“Chargeable e-messages”) will be provided subject to a charge at a rate determined by us from time to time. We may levy new charges and change any charge from time to time by not less than 30 days’ notice to you. The current list of our charges is available on request. Please check regularly for any new charges and changes.
6.2 You will nominate an account of yours to pay the charges and authorise us to debit the charges on a monthly basis from the account. You will ensure that there will be sufficient funds/credit in your account to cover all accrued charges.
6.3 All Chargeable e-messages sent to you will be charged whether or not you receive them, unless caused by our negligence or wilful misconduct.
6.4 Each Chargeable e-message will be charged. If the same e-message is received twice, this will count as two e-messages for the purpose of charging.
6.5 You are advised to enquire with your Service Provider whether any fee, charge or other amount will be charged for receiving ICBC(Asia) messaging. You are solely responsible for all such charges.
7. Suspension and termination
7.1 We may without notice suspend or terminate your use of this Service if you have not performed or observed any of these Terms and Conditions including failure to pay for any charges.
7.2 We may without notice and without liability suspend or terminate your use of this Service by reason of any breakdown, maintenance, modification or enhancement to any of our or our service provider’s facilities in connection with this Service.
Schedule 10: Foreign Law Requirements
1. Interpretation
1.1 Definitions
Terms defined in the Industrial and Commercial Bank of China (Asia) Limited Master Terms and Conditions - Banking Services (the “Terms and Conditions”) have the same meaning in this Schedule, unless otherwise defined.
In this Schedule:
“FATCA” means
(a) sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended) or any amended or successor version thereof;
(b) any intergovernmental agreement, memorandum of understanding, undertaking and other arrangement between governments and regulators in connection with (a) including as entered into by the government of Hong Kong;
(c) agreements between us and the IRS or other regulator or government agency pursuant to or in connection with (a); and
(d) any laws, rules, regulations, interpretations or practices adopted in the U.S., Hong Kong or elsewhere pursuant to any of the foregoing.
“Foreign Law Requirements” means any obligation imposed on us pursuant to any future or present:
(a) foreign laws (including foreign laws in respect of which we consider ourselves bound and including laws and regulations of the PRC);
(b) Hong Kong laws that implement Hong Kong’s obligations under an agreement with a foreign government (including the government of the PRC) or regulator;
(c) agreements entered into between us and a foreign government (including the government of the PRC) or regulator; or
(d) guidelines or guidance issued by any legal, regulatory, government, tax or law enforcement body within or outside of Hong Kong in respect of (a) to (c).
For the avoidance of doubt, this definition includes any obligation or requirement applying to us as amended or introduced from time to time, including pursuant to FATCA.
“Government Authority” means any government, government body, government agency or regulator, in or outside of Hong Kong, including the Inland Revenue Department of Hong Kong and the IRS.
“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.
“IRS” means the U.S. Internal Revenue Service.
“PRC” means the People’s Republic of China (excluding Hong Kong, Macau, and Taiwan).
“Relevant Information” means any information, document or certification given by or relating to you, any Ultimate Owner, any account with us or any transaction and shall include where the context permits identity information and personal data.
“Ultimate owner” means any ultimate beneficial owner of any account with us, the person ultimately responsible for giving of instructions of any transaction, any person who act on your behalf in receiving payment or any other person identified by us in its sole and absolute discretion as being connected with you.
“U.S.” means the United States of America.
1.2 Conflict between terms
In case of any conflict or inconsistency between the English and the Chinese versions of this Schedule, the English version shall prevail.
1.3 Interaction with the Terms and Conditions
This Schedule in no way seeks to limit any of our rights under the Terms and Conditions and should be interpreted accordingly.
2. UNDERTAKING TO PROVIDE INFORMATION
2.1 You agree that we may disclose Relevant Information to any person or Government Authority, whether or not established under Hong Kong law, as required under any Foreign Law Requirements as determined by us.
2.2 You undertake to provide us information, documents and certifications as reasonably required by us in order to meet our obligations under any Foreign Law Requirements. You acknowledge and agree that this may include information, documents or certifications in connection with you (or any of you), your authorized representatives, or the Ultimate Owner.
2.3 You will, from time to time, supply us with identity information and personal data in connection with the establishment or continuation of any account with us or provision of services. Failure to supply Relevant Information may result in us being unable to effect a transaction or operate or maintain any account with us. It may also result us having to withhold or deduct amounts as required under Foreign Law Requirements.
2.4 You must promptly notify us in writing of any change in any Relevant Information within 30 days.
3. INDEMNITY
Without limiting any other indemnity provided by you, you will indemnify us and our directors and employees against any liability, reasonable loss or expense (including tax or levy) arising from your instructions, your account or the provision of a service to you, including as a result of any failure by you to comply with the Terms and Conditions, including this Schedule, you or other agent of yours providing misleading or false information in respect of yourself or any other person or matter in connection with the Terms and Conditions, unless we are negligent or guilty of wilful misconduct.
4. CONSENT TO DEDUCT, WITHHOLD AND BLOCK
4.1 You acknowledge and agree that notwithstanding any other provisions of the Terms and Conditions:
(i) any payments by us under the Terms and Conditions will be subject to withholding and deduction as required under Foreign Law Requirements;
(ii) any amount withheld under (i) may be held in whatever account or in whatever manner determined by us; and
(iii) we are not liable for any gross up, loss or damage suffered as a result of the exercising of our rights under this Clause 4.1.
4.2 You acknowledge and agree that any transaction, payment or instruction under the Terms and Conditions may be delayed, blocked, transferred or terminated as required for us to meet its obligations including those under any Foreign Law Requirements as determined by us.
5. TERMINATION
Our right to close your account under the Terms and Conditions, includes a right to immediately close the account if you fail to comply with any requirement of this Schedule in respect of a Foreign Law Requirements, including failing to provide information, documents and supporting materials as required by us or closure is otherwise necessary or convenient for compliance with a Foreign Law Requirements.
Schedule 11: e-Cheques Deposit Services provisions
1. Applicability and interpretation
1.1 The provisions in this Schedule apply to our services relating to e-Cheques. The provisions of the Master Terms and Conditions – Banking Services (“Existing Terms”) which apply to paper cheques or generally to our services continue to apply to e-Cheques and our e-Cheques Deposit Services to the extent that they are relevant and not inconsistent with the provisions in this Schedule. The provisions of this Schedule prevail if there is any inconsistency between them and the provisions of the Existing Terms with respect to the e-Cheques Deposit Services.
1.2 Definitions
For the purpose of the e-Cheques Deposit Services, the following terms have the following meanings:
"Bills of Exchange Ordinance" means the Bills of Exchange Ordinance (Cap. 19, Laws of Hong Kong), as may be amended from time to time.
"Clearing House" means Hong Kong Interbank Clearing Limited and its successors and assigns.
"Deposit Channel" means any channel offered by us from time to time for presentment of e-Cheques for deposit.
"e-Cheque" means a cheque (including a cashier's order), issued in the form of an electronic record (as such term is defined in the Electronic Transactions Ordinance (Cap. 553, Laws of Hong Kong)) with an image of the front and back of the e-Cheque or e-cashier's order (as the case may be). e-Cheques may be issued in Hong Kong dollars, US dollars and Renminbi.
"e-Cheques Deposit Services" mean the services offered by us to customers from time to time for depositing e-Cheques.
"e-Cheque Drop Box" or "e-Cheque Drop Box Service" means an electronic drop box provided by the Clearing House that accepts presentment of e-Cheques in respect of which an e-Cheque Drop Box user must register an e-Cheque Drop Box Account with the Clearing House before presenting e-Cheques to a Payee Bank Account, as this term may be amended from time to time in accordance with the e-Cheque Drop Box Terms.
"e-Cheque Drop Box Account" means a user account for the e-Cheque Drop Box Service, and for which each user must register with the Clearing House before using the e-Cheque Drop Box for presenting e-Cheques for deposit into a Payee Bank Account, as this term may be amended from time to time in accordance with the e-Cheque Drop Box Terms.
"e-Cheque Drop Box Terms" means all the terms and conditions prescribed by the Clearing House from time to time for governing the e-Cheque Drop Box Service provided by the Clearing House and the use of the e-Cheque Drop Box Service.
"Industry Rules and Procedures" means the rules and operating procedures governing the handling of e-Cheques developed and/or adopted by the Clearing House and the banking industry from time to time.
"Payee Bank" means the bank at which a Payee Bank Account is held.
"Payee Bank Account" means, in respect of each e-Cheque presented for deposit using the e-Cheques Deposit Services, the bank account of the payee of the e-Cheque maintained with us into which the e-Cheque is to be deposited which may be a sole name or a joint name account of the payee.
"Payer Bank" means the bank which digitally signed an e-Cheque created by its customer.
"you" means each customer to whom we provide e-Cheques Deposit Services.
2. Nature and scope of e-Cheques Deposit Services
2.1 We may provide e-Cheques Deposit Services at our discretion. If we provide e-Cheques Deposit Services to you, you may deposit e-Cheques. In order to use the e-Cheques Deposit Services, you have to provide such information and documents and accept such terms and conditions which may be required or prescribed by us and the Clearing House respectively from time to time. You may also be required to sign forms and documents prescribed by us from time to time.
2.2 The e-Cheques Deposit Services allow you and other persons to present e-Cheques (whether payable to you and/or any other holder of the Payee Bank Account) for deposit with us (as Payee Bank), using the e-Cheque Drop Box Service offered by the Clearing House or using our Deposit Channels, in accordance with Clause 3 in this Schedule.
2.3 We may provide e-Cheques Deposit Services relating to e-Cheques that are issued in any currency specified by us from time to time, including Hong Kong dollars, US dollars or Renminbi.
2.4 The e-Cheques Deposit Services can only be used with savings accounts and current accounts, as determined by us. We may specify or vary from time to time the accounts which the e-Cheques Deposit Services can be used with.
2.5 We have the right to set or vary from time to time the conditions for using the e-Cheques Deposit Services. These conditions may include the following (or any of them):
(a) the service hours of the e-Cheques Deposit Services (including cut-off times for presenting e-Cheques); and
(b) any fees and charges payable by you for the e-Cheques Deposit Services.
3. e-Cheques Deposit Services
3.1 The e-Cheques Deposit Services may allow presentment of e-Cheques for deposit with us (as Payee Bank) using the e-Cheque Drop Box Service provided by the Clearing House or using our Deposit Channels.
3.2 e-Cheque Drop Box Service
(a) The e-Cheque Drop Box Service is provided by the Clearing House. You are bound by the e-Cheque Drop Box Terms in relation to your use of the e-Cheque Drop Box Service. You are solely responsible for performing your obligations under the e-Cheque Drop Box Terms.
(b) In order to use the e-Cheque Drop Box Service, you are required by the e-Cheque Drop Box Terms to register an e-Cheque Drop Box Account with one or more Payee Bank Account for presenting e-Cheques. You are allowed by the e-Cheque Drop Box Terms to register an e-Cheque Drop Box Account with a Payee Bank Account that is your same-name account or an account other than your same-name account. You are responsible for the presentment of all e-Cheques by you or any other person using your e-Cheque Drop Box Account (including presentment of any e-Cheques to a Payee Bank Account other than your same-name account).
(c) Any issue relating to the use of the e-Cheque Drop Box Service should be handled in accordance with the e-Cheque Drop Box Terms. We may (but have no obligation to) provide reasonable assistance to you. In particular, we do not have the electronic record or image of any e-Cheque deposited using the e-Cheque Drop Box Service. On your request, we may (but have no obligation to) provide the date, e-Cheque amount, e-Cheque number, payee name and any other information agreed by us relating to an e-Cheque deposited using your e-Cheque Drop Box Account.
(d) We give no representation or guarantee, whether express or implied, relating to the availability, quality, timeliness or any other aspect of the e-Cheque Drop Box Service provided by the Clearing House. Unless otherwise stated in the e-Cheque Drop Box Terms, you bear the responsibilities and risks relating to the use of the e-Cheque Drop Box Service. We are not liable for loss, damage or expense of any kind which you or any other person may incur or suffer arising from or in connection with the use of the e-Cheque Drop Box Service.
3.3 Our Deposit Channel(s)
(a) The Deposit Channel will be our internet banking service (as amended from time to time). We may specify or vary from time to time (i) the available Deposit Channel(s) without notice; and (ii) the terms governing the use of any Deposit Channel.
(b) You are bound by the terms governing the use of the relevant Deposit Channel(s) in relation to your use of the e-Cheques Deposit Services and you are solely responsible for performing your obligations under such terms.
(c) To use the relevant Deposit Channel(s), you may be required to provide us with such information and documents, to sign such forms and documents, and to accept such terms and conditions which may be required or prescribed by us from time to time.
4. Handling of e-Cheques
4.1 You understand that we and other banks have to follow the Industry Rules and Procedures in the handling, processing, presentment, payment, collection, clearance and settlement of e-Cheques payable to you. Accordingly, we are entitled to collect any e-Cheque payable to you by presenting that e-Cheque to the Payer Bank in accordance with the Industry Rules and Procedures even if the Bills of Exchange Ordinance may not expressly provide for presentment of e-Cheques or may specify other manner for presentment of cheques.
5. Restriction of our liability
5.1 Without reducing the effect of the provisions of the Existing Terms:
(a) we are not liable for loss, damage or expense of any kind which you or any other person may incur or suffer arising from or in connection with the use of the e-Cheques Deposit Services or the handling, processing, presentment, payment, collection, clearance or settlement of e-Cheques presented by you or any other person using the Deposit Channels provided by us to you, except to the extent that any loss, damage or expense incurred or suffered is direct and reasonably foreseeable arising directly and solely from our negligence or wilful default or that of our officers, employees or agents;
(b) in particular and for clarity, we are not liable for loss, damage or expense of any kind which you or any other person may incur or suffer arising from or in connection with the following (or any of them):
(i) use of the e-Cheque Drop Box Service by you or any other person, or the e-Cheque Drop Box Terms;
(ii) your failure to comply with your obligations relating to the e-Cheques Deposit Services;
(iii) presentment of any e-Cheque payable to you in accordance with the Industry Rules and Procedures despite the provisions of the Bills of Exchange Ordinance; and
(iv) any failure or delay in providing the e-Cheques Deposit Services, or any error or disruption relating to the e-Cheques Deposit Services, caused by or attributed to any circumstance beyond our reasonable control; and
(c) in no event will we be liable to you or any other person for any loss of profit or any special, indirect, consequential or punitive loss or damages.
6. Your confirmation and indemnity
6.1 You accept the restriction of liabilities and disclaimers imposed by us and the Clearing House in relation to the e-Cheques Deposit Services and the services provided by the Clearing House respectively. You accept and agree to bear the risks and the liabilities for depositing e-Cheques.
6.2 Without reducing the effect of any indemnity given by you under the Existing Terms or any other rights or remedies that we may have, you will indemnify us and our officers, employees and agents and hold each of them harmless against all liabilities, claims, demands, losses, damages, costs, charges and expenses of any kind (including legal fees on a full indemnity basis and other expenses reasonably incurred) which may be incurred or suffered by us or any of them and all actions or proceedings which may be brought by or against us or any of them as a result of or in connection with our provision of the e-Cheques Deposit Services or your use of the e-Cheques Deposit Services.
6.3 The above indemnity does not apply to the extent that it is proved that any liabilities, claims, demands, losses, damages, costs, charges, expenses, actions or proceedings are direct and reasonably foreseeable arising directly and solely from our negligence or wilful default or that of our officers, employees or agents.
6.4 The above indemnity shall continue to have effect after the termination of the e-Cheques Deposit Services.
Master Terms and Conditions - Investment Products
Master Terms and Conditions - Online Remittance Services
1. Industrial and Commercial Bank of China (Asia) Limited (hereinafter called the “Bank”) will send the telegraphic transfer in any understandable language, code or cipher as the Bank thinks appropriate. Unless caused by the Bank’s negligence or wilful misconduct and insofar as permitted by the applicable law, the Bank shall not be liable for mutilations, interruptions, omissions, errors, delays, transmittal failures, actions of our correspondents, sub-agent, or other agency, or censorship, civil commotion, declared or undeclared war or any act or decree of any government, or any circumstances beyond the control of the Bank.
2. Unless otherwise specifically instructed by the Applicant, the Bank may execute the remittance through any of its correspondents and agents.
3. All charges outside Hong Kong are for the account of the beneficiary unless specified, however, any charges or expenses in consequence of the remittance are to be borne by the Applicant.
4. Refund may only be made after the Bank has received notice of effective confirmation of cancellation and actual return of the remittance from the Bank’s correspondents and agents, and in the case of funds already converted, a refund is to be made calculated at the Bank’s buying rate on the day of refund is made, less the Bank’s expenses and that of this correspondents and agents. All commission and charges collected are not refundable.
5. The Applicant acknowledges and agrees that information provided by the Applicant to the Bank may be included in the remittance message and disclosed to third parties, including but not limited to beneficiary bank, other regulatory authorities and parties as stated in the Circular to Customers relating to the Personal Data (Privacy) Ordinance as amended from time to time, and where applicable outside Hong Kong to fulfil the Bank’s function under the applicable laws and Guidelines on Prevention of Money Laundering issued by the Hong Kong Monetary Authority. Other information may be sought by the Bank from the Applicant in processing or otherwise in connection with the telegraphic transfer service. If the Applicant fails to provide the information when requested, the Bank may not able to deliver the service required.
Terms and Conditions - Online Cashier’s Order application Services
1. Any amendment, cancellation or refund of the Cashier's Order or issue of replacement Cashier's Order may be subject to the handling charge imposed by the Bank.
2. If the Cashier's Order is lost, stolen or destroyed, you will provide the Bank with a letter of indemnity acceptable to the Bank, indemnifying the Bank against all possible loss and / or damage with respect of the lost, stolen or destroyed Cashier's Order before the refund or issue of a replacement Cashier's Order.
Terms and Conditions - Online Demand Draft application Services
1. The draft is issued subject to the condition that the Bank will not be liable for any loss or damage due to any law, decree, regulation, control, restriction or other act of government or governmental agents of the country in which or in the currency of which the draft is drawn, or any change thereof.
2. The Bank will not be liable for any loss or damage due to delay in payment or in giving advice of payment, loss of items in transit or otherwise, mutilation, error, omission, interruption or delay in transmission or delivery of any item, letter, telegram or cable or the action of the Bank's correspondents, agents, sub-agents or other agencies, or the acts, omissions or edicts of any government or governmental agency or body or other bodies or groups exercising or assuming governmental or regulatory powers, whether de jure or de facto, or any act omission or event beyond our absolute control.
3. You undertake to reimburse the Bank for any loss or expense incurred by the Bank, its correspondents or agents in issuing the draft.
4. Request for any amendment, cancellation or refund has to be made by you in person upon production of proper identity documents together with the related draft. Refund may only be made after the Bank has received notice of effective cancellation of the payment of funds, and in the case of funds already converted, a refund is to be made calculated at the Bank's buying rate on the day the refund is made, less the Bank's expenses and that of its correspondents and agents. All commissions and charges collected are not refundable.
5. In the event of the loss of a Demand Draft, you will provide the Bank with a letter of indemnity acceptable to the Bank, indemnifying the Bank against all possible loss with respect to the lost Demand Draft, before the refund or issue of a replacement draft.
6. Any amendment, cancellation or refund of the Demand Draft, or issue of replacement draft may be subject to the Bank's handling charge.
The definitions of the terms in relation to Connected Parties under Banking (Exposure Limits) Rules (“BELR”) and relevant
Supervisory Policy Manual CR-G-9 Exposures to Connected Parties
(1)Relevant Employee means the following –
(a)An employee of ICBC (Asia) who is responsible, either individually or as a member of a committee, for approving applications for financial facility, including but not limited to an advance, loan or credit facility (including a letter of credit), a financial guarantee and a liability;
(b)Senior management, including chief executive, of ICBC (Asia);
(c)Manager means any individual, other than a director or chief executive of ICBC (Asia), appointed by ICBC (Asia), or by a person acting for or on behalf of or by an arrangement with ICBC (Asia), to be principally responsible, either alone or with others, for the conduct of any one or more of the affairs or business of ICBC (Asia) specified in the Fourteenth Schedule of the Banking Ordinance but it does not include a person, or a person belonging to a class of persons, declared in a notice that it is not a manager, or a class of managers, as the case may be, for the purpose of the definition of manager.
(2)Relative, in relation to a natural person, means the following –
(a)a parent, grandparent or great grandparent;
(b)a step-parent or adoptive parent;
(c)a brother or sister;
(d)the spouse;
(e)if the person is party to a union of concubinage --- the other party of the union;
(f)a cohabitee;
(g)a parent, step-parent or adoptive parent of a spouse;
(h)a brother or sister of a spouse;
(i)a son, step-son, adopted son, daughter, step-daughter or adopted daughter;
(3)Controller, in relation to a company, means, in respect of all the provisions of the Banking Ordinance, any person who is an indirect controller or a majority shareholder controller as defined in section 2(1) of the Banking Ordinance, and includes, in respect of the provision of Part XIII, any person who is a minority shareholder controller of that company.
(a)“An indirect controller”, in relation to a company, means any person in accordance with whose directions or instructions the directors of the company or of another company of which it is a subsidiary are accustomed to act, but does not include a Manager or Advisor, or any person in accordance with whose directions or instructions those directors are accustomed to act by reason only that on advice given by him in his professional capacity.
(b)“A majority shareholder controller”, in relation to a company, means any person who, either alone or with any associate or associates, is entitled to exercise, or control the exercise of , more than 50% of the voting power at any general meeting of the company or of another company of which it is a subsidiary.
(c)“A minority shareholder controller”, in relation to a company, means any person who, either alone or with any associate or associates, is entitled to exercise, or control the exercise of, 10% or more, but not more than 50%, of the voting power at any general meeting of the company or of another company of which it is a subsidiary.
(4)For the purpose of BELR 94(2), a firm, partnership or non-listed company (controlled entity) is treated as being controlled by a natural person if –
(a)the person owns more than 50% of the voting rights in controlled entity;
(b)the person has control of a majority of the voting rights in the controlled entity under an agreement with other shareholders (or similar holders of voting rights);
(c)the person has the right to appoint or remove a majority of the members of the controlled entity’s board of directors (or similar governing body);
(d)a majority of the members of the controlled entity’s board of directors (or a similar governing body) have been appointed solely as a result of the person exercising his or her voting rights; or
(e)the person has the power, under a contract or otherwise, to exercise a controlling influence over the management or policies of the controlled entity.
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