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Part A: Common Terms and Conditions
1.Definitions and Interpretation
1.1 Unless the context otherwise requires:
"Agreed Signing Arrangement" means the signing arrangement
of a particular set of Authorized Signatory(ies) stipulated
by the Customer and accepted by the Bank for or in connection
with the operations of Bank Account with the Bank or (as
the case may be) the provision of a Service by the Bank,
subject to such changes as may be agreed by the Bank from
time to time.
"Terms" means this General Terms and Conditions
for Banking Service.
"Authorised Signatory(ies)" means the authorised signatory(ies)
appointed by the Customer and accepted by the Bank for
or in connection with the operations of any Bank Account(s)
with the Bank or (as the case may be) provision of any
Service provided by the Bank, subject to such changes
as may be agreed by the Bank from time to time. For the
avoidance of doubt, in case where the Customer is an individual
or consists of two or more individuals, such Authorized
Signatory(ies) may include such individual or (as the
case may be) any one or more of such individuals; and
unless the context does not allow, the term "Authorized
Signatory(ies)" shall mean the Authorized Signatory(ies)
concerned together with his/her/their related specimen
signature(s) on record with the Bank.
"Bank" means Bank of China (Hong Kong) Ltd.,
Nanyang Commercial Bank Ltd. or Chiyu Banking Corporation
Ltd..
"Bank Account" and "Service" means respectively any bank
account and any service (general or investment) opened
or set up or continued to be maintained or provided by
the Bank for the Customer under or pursuant to the Terms
and/or any bank account and any service as referred to
in the Terms.
"Business Day" means any day on which banks
in the PRC are open for business.
"Customer" means the person who applies the Bank Account
and the Service with the bank and accepts the Terms.
"PRC" means the People's Republic of China, which, for
the purposes of this "General Terms and Conditions for
Banking Services", shall exclude Hong Kong Special Administrative
Region, Macao Special Administrative Region and Taiwan.
"Renminbi" or RMB means the lawful currency in the PRC.
"Hong Kong Dollars" means the lawful currency in HKSAR
at the relevant time.
"Relevant Terms and Conditions" means the terms and conditions
governing the operations of the relevant Bank Account
with the Bank or (as the case may be) the provision of
the relevant Service by the Bank. For the avoidance of
doubt, such Relevant Terms and Conditions include (but
without limitation) provisions contained in the Terms
whereby the relevant Bank Account or (as the case may
be) the relevant Service is set up or continued to be
provided or maintained for the Customer.
"Signature Number" means the signature number or code
from time to time designated by the Bank and accepted
by the Customer for representing a particular set of Authorized
Signatory(ies) together with the relevant Agreed Signing
Arrangement.
1.2 Headings are inserted in the Relevant Terms and Conditions
(including this Part A) for convenience of reference only
and shall not affect the construction of the provisions
of the Relevant Terms and Conditions (including this Part
A).
1.3 Unless the context otherwise requires:
a.words denoting the singular include the
plural and vice versa;
b.words importing a gender include every gender;
c.the word "person" includes any individual, individual
business operator, sole proprietorship, partnership, company,
foreign investment enterprise, representative office of
foreign institution in China or other incorporated or
unincorporated entity.
2.Joint, Sole Proprietorship, Partnership, etc.
2.1 If the Customer consists of two or more persons,
the following provisions shall apply:
a.the obligations and liabilities of such persons under
the Terms and/or the Relevant Terms and Conditions or
in connection with any transaction or contract made under
the Terms and/or the Relevant Terms and Conditions shall
be joint and several and any demand made by the Bank to
any one or more of the Customer so jointly and severally
liable shall be deemed to be demand made to all such persons
constituting the Customer;
b.the Bank is at liberty to release or discharge any
one or more of the persons constituting the Customer from
liability under the Terms and/or the Relevant Terms and
Conditions or to compound with, accept compositions from
or make any other arrangements with any of such persons
without in consequence releasing or discharging one or
more person(s) constituting the Customer from the Terms
and/or the Relevant Terms and Conditions or otherwise
prejudicing or affecting the Bank's rights and remedies
against the other person(s);
c.all instructions and transactions relating to any Bank
Account or (as the case may be) any Service in the event
of the death of any one or more of the persons constituting
the Customer shall be subject to any claim or objection
of any governmental authority and shall be without prejudice
to any right which the Bank may have arising out of any
lien, charge, pledge, set-off, claim, counterclaim or
otherwise whatsoever or any step or legal proceedings
which the Bank may in its absolute discretion deems desirable
to take in view of any claim by any person other than
the survivor(s) of them or the executors or administrators
of the deceased;
d.subject to paragraph 2.1.c above, the Bank shall hold
on the death of any of the persons constituting the Customer
all credit balance or balances, securities and property(ies)
in all the accounts and all moneys due by the Bank to
the Customer under any transactions and services to the
order of the survivor(s) of the Customer or (in the case
of death of all the persons constituting the Customer,
the executor(s) or administrator(s) of the last survivor
of the Customer) and any payment by the Bank as above
shall be an absolute full and conclusive discharge to
the Bank as against the Customer (including the deceased
and his/her estate and successor) provided that the Bank
may require the production of documentary proof of the
death and/or the relevant legal grant to the estate of
the deceased; and
e.the Bank's set off right hereunder may be exercised
against any one or more of such persons such that money,
property or proceeds otherwise payable to the Customer
may be applied by the Bank in or towards the satisfaction
of any obligations or liabilities owing to the Bank by
any one or more (albeit not all) of the persons comprising
the Customer.
2.2 If the Customer is a firm (whether sole proprietorship
or partnership firm), the following provisions shall apply
in addition to Clause 2.1:
a.the Customer and the proprietor/partners and persons
carrying on business in the name of the firm concerned
now or at any time hereafter shall be jointly and severally
liable under the Terms and/or the Relevant Terms and Conditions;
b.the Customer shall immediately advise the Bank of any
change (i) in the constitution or membership of the firm
(whether by retirement, death, or admission of new parties);
or (ii) in the name of the firm. Unless expressly released,
the Customer and all persons signing the Terms and/or
the Relevant Terms and Conditions as the proprietor or
partners of the Customer shall continue to be liable under
the Terms and/or the Relevant Terms and Conditions irrespective
of any such change;
c.unless the Bank shall have actually received written
notice from the Customer of any change in the membership
or constitution of the firm, whether as a result of death
or otherwise, irrespective of whether such change has
been reported to or filed on public records with the State
Administration for Industry and Commerce or its local
branch or any other relevant government department or
authority, the proprietor or the partners (as the case
may be) of the firm on record with the Bank shall remain
liable to the Bank as such and be deemed to have represented
at all times to the Bank that the constitution and name
of the firm have remained unchanged and the Bank shall
be entitled to act accordingly and all the terms and conditions
under the Terms and/or the Relevant Terms and Conditions
and authorities given to the Bank Account(s) and/or the
relevant Service(s) shall continue to be binding and of
full effect;
d.for the avoidance of doubt, the word "Customer" in
Article 2 of the Terms shall include the firm and its
sole proprietor or partners (as the case may be) for the
time being and all the terms and conditions hereof shall
be so construed accordingly;
e.in case of a partnership firm (the "Firm"), if any
one or more of the partners cease to be a partner of the
Firm by death, retirement or otherwise, the Bank shall
be entitled and is authorized:
i.to treat the surviving or continuing partners or partner
for the time being as having full power to carry on the
business of the Firm and to deal with any matter whatsoever
concerning or arising from the Bank Account or (as the
case may be) the Service and any transactions relating
thereto as if there had been no change in the Firm and
all transactions effected pursuant to the request or instruction
of such surviving or continuing partners or partner shall
be conclusively binding on all the partners or their respective
estates, including the one or more of the partners who
shall have ceased to be a partner or partners; and/or
ii.in the absence of written instructions to the contrary
signed by all partners of the Firm immediately before
such cessation, to close or suspend the Bank Account or
(as the case may be) to terminate or suspend the Service
without any prior notice or reference to the Customer.
The securities, property(ies) or proceeds held in any
account of the Customer (subject to any of rights or claims
of the Bank thereon) shall be held by the Bank to the
order of all partners of the Firm immediately before such
cessation; and/or
iii.at the request of the surviving or continuing partner(s)
for the time being, to open a new Bank Account or (as
the case may be) to set up new Service with them in the
same name as that of the Firm (hereinafter referred to
as the "New Firm") and to carry on business with them
and to collect and pay thereto any or all cheques, bills,
drafts, notes and/or other instruments with the name of
the firm as the named payee (whether they are in fact
payable to the Firm or the New Firm) without enquiry and
such collection and payment shall be a valid discharge
to the Bank and conclusively binding on all of the partners
of the Firm and their respective estates, including the
one or more of the partners who shall have so ceased to
be partner or partners, irrespective whether or not such
payment or collection will in fact result in reduction,
payment or satisfaction of any or all of the debts or
liabilities of the New Firm to the Bank and/or otherwise
be used only for the benefit or business of the New Firm
or the partners of the New Firm to the Bank's knowledge.
For the avoidance of doubt, it is hereby expressly declared
that this Sub-clause 2.2.e shall continue to apply and
have effect irrespective of whether or not any notice
of change in the constitution or name of the Firm has
in fact been sent to and received by the Bank and whether
or not the partnership of the Firm be deemed in law or
in fact to have been dissolved or ceased to exist.
2.3 If the Customer is an association, committee or other
unincorporated body, the Terms and/or the Relevant Terms
and Conditions shall remain in full force and effect and
shall be binding on the Customer, notwithstanding any
change in membership or constitution of the Customer.
2.4 The Customer hereby warrants and represents that:
a.if the Customer is a limited company or other incorporated
or unincorporated body, the Customer has been duly established
in accordance with all applicable laws, rules and regulations;
b.all acts, conditions, things required to be done, performed
and observed in order that the Terms and/or the Relevant
Terms and Conditions shall constitute the legal, valid
and binding obligations of the Customer enforceable in
accordance with its terms have been done, performed and
observed in strict compliance with all applicable laws,
rules and regulations and the constitutional documents
of the Customer.
3. Instruction
3.1 Any instruction from the Customer or any Authorized
Signatory(ies) on behalf of the Customer (when they signed
as per the relevant Agreed Signing Arrangement) shall
be given in the manner or pursuant to the arrangement(s)
as from time to time agreed and accepted by the Bank.
Without prejudice to the Bank's right to refuse to accept
the instruction under the Terms and/or the Relevant Terms
and Conditions, the Bank shall be entitled not to accept
the instruction not so given, except where the Bank otherwise
agrees.
4.Authorized Signatory(ies), Agreed Signing Arrangement and Signature Number
4.1 The Authorized Signatory(ies) (when they signed as
per the relevant Agreed Signing Arrangement) shall have
full authority on behalf of the Customer to deal with
the Bank in respect of any matter whatsoever concerning
or arising from the relevant Bank Account or (as the case
may be) the relevant Service or to give to the Bank any
directions, orders or instructions of whatever nature
(in the form of standing instruction or otherwise) relating
thereto and/or enter into all types of agreements with
the Bank in connection with the aforesaid matters, including
but not limited to:
a.the closing of the relevant Bank Account of whatever
type with the Bank or the termination of the relevant
Service; and
b.any change of correspondence address and contact number
of the Customer;
But excluding:
(i)the application for opening of new Bank Account or
(as the case may be) setting up of new Service, save as
otherwise provided in the Terms; and
(ii)any change of the Authorized Signatory(ies) and/or
his/her/their specimen signature(s) and/or the relevant
Agreed Signing Arrangement.
4.2 Unless otherwise agreed to by the Bank or save as
otherwise provided in the Terms, any change in the Authorized
Signatory(ies) and/or his/her/their specimen signature(s)
and/or Agreed Signing Arrangement and/or application for
any new Bank Account or (as the case may be) new Service
shall only be effected as and when:
a.the Bank shall have received duly authorized written
instruction from the Customer in the form and substance
satisfactory to the Bank, requesting the Bank for such
change or application; and
b.the Bank shall agree to give effect to such change
or application.
4.3 The Bank and the Customer may from time to time agree
to set up a specific Signature Number to represent a specifically
agreed set of Authorized Signatory(ies) and Agreed Signing
Arrangement (the "Agreed Set of Signing Arrangement").
To set up a Signature Number, the Bank and the Customer
may, for the purpose of determining the related Agreed
Set of Signing Arrangement, refer to a new set of Authorized
Signatory(ies) and Agreed Signing Arrangement or to any
set of Authorized Signatories and Agreed Signing Arrangement
of any existing Bank Account or Service. In the latter
case, the Customer shall be deemed to have adopted the
relevant Signature Number for the existing Bank Account
or Service.
4.4 The Customer may designate the Authorized Signatory(ies)
and Agreed Signing Arrangement of any Bank Account or
Service by adopting a Signature Number therefore. In such
event, the Authorized Signatory(ies) and Agreed Signing
Arrangement applicable to the relevant Bank Account or
Service shall be deemed to be the Agreed Set of Signing
Arrangement as represented by the relevant Signature Number.
4.5 Any effective change in the Agreed Set of Signing
Arrangement of a Signature Number shall apply to all Bank
Accounts and Services using the same Signature Number.
For the avoidance of doubt, all other Bank Accounts and
Services using other Signature Numbers shall not be affected
thereby, and the closure or termination of any Bank Account
or Service using a Signature Number shall not affect the
other Bank Accounts and Services using the same Signature
Number.
4.6 Notwithstanding that more than one Bank Account and/or
Service may be established under the same document or
Terms, the Customer may adopt a different Signature Number
for each such Bank Account and/or Service.
4.7 In case the set of Authorized Signatory(ies) and
the relevant Agreed Signing Arrangement of a Bank Account
or Service (the "Relevant Bank Account and/or Service")
are described as "the same as" those of another Bank Account
or Service (the "Reference Account"), if there is any
change in the Authorized Signatory(ies) and/or his/her/their
specimen signature(s) and/or the relevant Agreed Signing
Arrangement of the Reference Account, the corresponding
Authorized Signatory(ies) his/her/their respective specimen
signature(s) and/or the relevant Agreed Signing Arrangement
of the Relevant Bank Account and/or Service shall be deemed
to change accordingly without the necessity of any reference
to the Customer, provided that the closure of the Reference
Account shall not affect the continuity or effectiveness
of the Authorized Signatory(ies) and Agreed Signing Arrangement
of the Relevant Bank Account(s) and/or Service(s).
4.8 In respect of any of the Services, if the Agreed
Signing Arrangement thereof shall consist of two or more
levels of authorization, all and any of such levels of
authorization shall be equally effective as the Agreed
Signing Arrangement of such Service.
4.9 Notwithstanding that the Bank Account(s) and Service(s)
may be established simultaneously under one single document
or Terms, the Authorized Signatory(ies) and the Agreed
Signing Arrangement of each and every Bank Account and
Service will be treated as independent by the Bank so
that any change in the Authorized Signatory(ies) and/or
his/her/their specimen signature(s) and/or the Agreed
Signing Arrangement for any Bank Account or Service will
not affect the others.
4.10 The Customer agrees to ratify at all times all acts,
deeds, directions, orders or instructions given by any
or all of the Authorized Signatory(ies) in accordance
with Clause 4.1 above and acknowledges that the same shall
at all time be binding on the Customer.
4.11 The Authorized Signatory(ies) shall have continuous
authority and powers to deal with the Bank in accordance
with Clause 4.1 above until and unless the Bank shall
have actually received written notice to the contrary
in the prescribed form and duly signed by the Customer
in accordance with Clause 4.2 above and the Bank shall
have notified the Customer of the Bank's acceptance of,
or have actually accepted and acted upon, such contrary
notice.
4.12 Notwithstanding anything contained herein, the Customer
agrees and acknowledges that the Bank shall have the absolute
right at any time, without prior notice or giving any
reason therefore, not to accept any order, request or
instruction from all or any of the Authorized Signatory(ies).
4.13 In the event of the death of the Customer or any
one or more or all of the Customer (in case more than
one), any payment, act, thing or matter made or done by
the Bank pursuant to the request instruction or direction
of the Authorized Signatories or any of them after such
death but prior to the actual receipt of notice in writing
thereof by the Bank shall be absolutely and conclusively
binding on the Customer, the respective estate(s) and
any party/parties claiming through or under the Customer
or any one or more of them.
5. Notice
5.1 Any notice or other communication to the Customer
in connection with any Bank Account or (as the case may
be) any Service may be given by the Bank to the Customer
orally, or in writing. Written notice to the Customer
may be by letter, by way of advertisement in the newspaper
or posting notices in banking halls or through such other
means as the Bank deems fit.
5.2 Oral notice or communication shall be deemed to have
duly given to and received by the Customer when any officer
or agent acting for the Bank verbally notifies, whether
in person or through the telephone, the Customer or, as
the case may be, any individual comprising the Customer
or any one of his Authorized Signatory(ies).
5.3 Subject to the provisions in Clause 5.5 below, written
notice or communication shall be deemed to have been duly
sent to and received by the Customer: (a) if delivered
personally, at the time of such delivery; (b) if sent
by letter postage prepaid, forty-eight hours after posting
(for Customer with an address outside the PRC, 7 days
after posting); (c) if sent by facsimile, at the time
of despatch; (d) if sent by cable, twenty-four hours after
despatch; and (e) if sent by any other telecommunication
means, at the time of despatch.
5.4 Subject to the provisions in Clause 5.5 below, any
written notice or communication from the Bank to the Customer
shall be deemed duly sent to the Customer at the address
or facsimile number or e-mail address of the Customer
stated in the Terms and/or such other address or facsimile
number or e-mail address from time to time notified by
the Customer to the Bank in accordance with Clause 5.7
below.
5.5 All written notices and announcements by the Bank
shall be deemed duly made and effectively communicated
to the Customer:
a.if published on newspaper, on the third Business Day
after such publishing; and
b. if displayed at banking hall of the Bank, when it
has been so displayed for three (3) consecutive Business
Days.
5.6 If the Customer shall consist of more than one person,
any written notice or other written communication to be
sent to the correspondent address set out in the Terms
or to any one person comprising the Customer at the last
known address, facsimile number or e-mail address of such
individual from time to time or to such other address,
facsimile number or e-mail address as may have been notified
in writing by the Customer to the Bank in accordance with
Clause 5.7 below shall be deemed effectively sent to the
Customer.
5.7 Any notice or communication from the Customer to
the Bank shall be in writing. Such notice shall be addressed
and delivered to the Bank at its principal place of business
or other contact addresses selected by the Bank and notified
to the Customer and shall be deemed to have been received
only upon actual receipt by the Bank.
6. Records Conclusive
6.1 The books and records of the Bank (including but
not limited to any tape recording and any handwritten
information recorded by the Bank's staff in the course
of their dealing with the Customer) shall be conclusive
and binding on the Customer, save for manifest error,
for all purposes and in all courts of law.
7. Advice, Statement, Confirmation and Certificate Conclusive
7.1 The Customer shall have a duty to examine and verify
the correctness of each and every entry in any advice,
statement, confirmation or certificate issued by the Bank
to the Customer regarding any transactions and/or other
incidental matters thereto and to notify the Bank immediately
in writing of any entry which the Customer considers wrongful,
irregular and/or unauthorized. Unless the Bank shall have
received such notice within 90 days of the date of issuance
of the advice, statement, confirmation or certificate
containing the entry concerned, the Customer shall not
be entitled to dispute any transaction and/or entry recorded
in the advice, statement, confirmation and/or certificate
on whatever grounds (in particular, but without limitation,
on the ground of the transaction and/or entry being carried
out or made without the authorization of the Customer)
provided always that the Bank shall have the absolute
right (but not bound) at any time to rectify any erroneous
entry.
7.2 Nothing in Clause 7.1 or contained herein or in any
Relevant Terms and Conditions shall affect the Customer's
right of recourse in relation to:
a.unauthorized transactions arising from forgery or fraud
by any third party including any employee, agent or servant
of the Customer and in relation to which the Bank has
failed to exercise reasonable care and skill;
b.unauthorized transactions arising from forgery or fraud
by any employee, agent or servant of the Bank; or
c.other unauthorized transactions arising from the wilful
default or negligence on the part of the Bank or any its
employees, agents or servants.
8.Clauses Severable
8.1 Each of the clauses and provisions of the Terms and/or
the Relevant Terms and Conditions is severable and distinct
from the others and if at any time one or more of such
clauses or provisions is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions hereof shall not in any way
be affected or impaired thereby.
9.Force Majeure
9.1 Neither the Bank nor the Customer shall be liable
for any loss sustained by the other, directly or indirectly,
if either is prevented from acting as a direct or indirect
result of governmental restrictions, the imposition of
emergency procedures or suspension of trading by any relevant
market, civil disorder, act or threatened act of terrorism,
natural disaster, war, strike or other circumstances beyond
the party's control.
10.Personal Data
10.1The Customer acknowledges and agrees that he has
noted and will note the content of a notice relating to
using the personal data issued by the Bank (the "Notice",
including the same as from time to time may be updated
or varied by the Bank) and on display in the Bank's banking
halls or otherwise made available to the Customer) and
agrees that it is necessary to supply the Bank with data
in connection with the opening or continuation of the
Bank Account(s) or the Service(s). The Customer further
authorizes the Bank to use his data for the purposes set
out in the Notice and such other purposes directly or
indirectly relating to any transaction and other matter
in connection with any Bank Account or (as the case may
be) any Service. The Customer notes that data held by
the Bank will be kept confidential but permits the Bank
to provide such information to the persons listed in the
Notice or any other person(s) (including debt collecting
agent(s)) for the purposes set out in the Notice or in
compliance with any laws, regulations or directions affecting
or binding on the Bank or its branches/offices.
10.2 In addition to Clause 10.1, the Bank is hereby further
authorized to and may, at its discretions, provide and
divulge information in respect of the Customer or in connection
with any Bank Account or (as the case may be) any Service
or any transaction made thereunder in writing or otherwise,
to (a) any other banks, financial institutions, agents,
charge or credit card issuing companies, credit reference
agencies, service providers or contractors; (b) any regulatory
body, or any government department or agency; (c) any
Member of Bank of China (Hong Kong) Ltd., Nanyang Commercial
Bank Ltd. or Chiyu Banking Corporation Ltd. or any actual
or proposed participant or sub-participant in, or transferee,
assignee or successor of, all or any part of the assets
or business of any such member; and (d) any persons who
are engaged by the Bank to provide services to the Bank
for maintaining or operating the Bank Account(s) and/or
Service(s) for the Customer. For the purpose of this Clause,
the term "Member" shall, in relation to Bank of China
(Hong Kong) Ltd., Nanyang Commercial Bank Ltd. or Chiyu
Banking Corporation Ltd., mean any of the branches, subsidiaries,
holding company, associated companies or affiliates of
or companies controlled by any of them.
10.3 The Customer further authorizes the Bank to contact
any of his/their employers (if applicable), banks, referees
or any other sources for the purpose of obtaining or exchanging
any information and to compare the information provided
by the Customer with other information collected by the
Bank for checking purposes. The Bank is entitled to use
the result of such comparison to take any action which
may be adverse to the interest of or against any of the
Customer. The Customer consents to his/her/their data
being transferred to another jurisdiction outside the
PRC and to any matching procedures being carried out in
respect of such data. The Customer may withdraw his consent
for all or any of the above by giving to the Bank 30 days'
prior written notice of such withdrawal of consent.
10.4 The Customer shall immediately inform the Bank in
writing of any change in his personal particulars, address,
telephone, facsimile number or e-mail address.
11. Indemnity from the Customer
11.1The Customer shall indemnify and keep the Bank indemnified
from and against all reasonable costs, loss, damage, expenses
(legal or otherwise), actions, demands, claims, proceedings
whatsoever which the Bank may suffer, incur or sustain,
whether actual or contingent, as a result of or arising
from any transactions, contracts or services entered into
and/or provided by the Bank under the any Bank Account
or (as the case may be) any Service or as a result of
maintaining or continuing any Bank Account or Service.
The Customer shall pay to the Bank on demand all reasonable
sums (whether actual or contingent) so suffered, incurred
or sustained by the Bank (whose determination shall be
conclusive and binding on the Customer) together with
interest accrued thereon from the date when the same were
first paid or incurred by the Bank until actual payment
in full by the Customer at the rate for unarranged overdraft
as specified in the relevant schedule of charges and/or
interest published by the Bank from time to time and to
be made available to the Customer upon request.
12. Set-off and Lien
12.1 In addition and without prejudice to any general
or banker's lien, right of set-off or similar right to
which the Bank is entitled by law, the Bank shall have
the right and is hereby authorized at any time and from
time to time hereafter when any sum is due and unpaid
by the Customer or when the Customer has breached any
provision whether under these Terms and Conditions or
any other Terms with the Bank, without notice to the Customer
(any such notice being expressly waived) to:
a.apply any credit balance on any account (whether in
the name of the Customer or jointly with other(s)) at
any branch or sub-branch of the Bank whether in or outside
the PRC; and/or
b.set-off any of the liability of the Bank to the Customer
including but not limited to such of the liability (whether
actual or contingent) arising from any transaction in
or towards satisfaction of the Customer's obligations
and liabilities, whether actual or contingent, future
or existing, due or owing to the Bank alone or jointly
with other(s), whether under or pursuant to the Terms
and/or the Relevant Terms and Conditions or otherwise.
Where such set off and/or application of credit balance
requires the conversion of one currency into another,
such conversion shall be calculated at the then prevailing
spot rate of exchange as determined by the Bank in its
absolute discretion.
12.2 Further, the Bank may be entitled to retain all
or any securities, valuable or any other property whatever
and wherever situate which may be deposited with or otherwise
held by the Bank or in the name of the Customer or any
one or more of them whether for safe custody or otherwise
and to sell the same or any part thereof at such price
as the Bank shall determine whether by converting into
cash, public auction, selling off, tender or any other
means and the Bank may engage such agent or broker therefore
and apply the proceeds thereof to set off any or all sums
owing from the Customer to the Bank under and/or arising
out of any transaction entered into under the Terms and/or
the Relevant Terms and Conditions after first deducting
all costs and expenses.
13. Time, Rights Cumulative, Waivers, etc
13.1 Time shall be of essence as regards any obligation
of the Customer under the Terms and/or the Relevant Terms
and Conditions or under any transaction in connection
with any Bank Account or (as the case may be) any Service.
But no delay or omission on the Bank's part in exercising
any right, power, privilege or remedy under the Terms
and/or the Relevant Terms and Conditions shall impair
such right, power, privilege or remedy, or be construed
as a waiver of it, nor shall any single or partial exercise
of any such right, power, privilege or remedy preclude
any further exercise of it or the exercise of any other
right, power, privilege or remedy. The rights, powers,
privileges and remedies under the Terms and/or the Relevant
Terms and Conditions are cumulative and not exclusive
of any rights, powers, privileges or remedies provided
by law.
14. Payment not subject to Deduction
14.1 All sums payable by the Customer under the Terms
and/or the Relevant Terms and Conditions shall be paid
to the Bank in the PRC and in Hong Kong Dollars or otherwise
as the Bank may from time to time direct in full, free
and clear of any present or future taxes, levies, imposts,
duties, charges, fees or withholding and without set off
or counterclaim or any restriction, condition or deduction
whatsoever. If the Customer is compelled by law to make
any deduction or withholding, the Customer shall promptly
pay to the Bank such additional amount as will result
in the net amount received by the Bank being equal to
the full amount which would have been receivable had there
been no deduction or withholding. Any additional amount
paid under this Clause 14.1 shall not be treated as interest
but as agreed compensation.
15. Transactions in Cash
15.1 The minimum settlement unit of all transactions
in cash between the Bank and the Customer or any other
person dealing with the Bank shall be settled by rounding
the amount down to the extent necessary to the nearest
integral multiple of one ten cents determined by the regulatory
authorities or the prevailing practice of the Bank. The
Bank or, as the case may be, the Customer or such other
person shall receive a full discharge by payment in cash
of the minimum settlement unit for the amount of the obligation
sought to be discharged including any odd cents which
are not paid. This shall not affect transactions by cheque
or other means of payment which may still include amounts
in odd cents.
16. Fees and Charges
16.1 The Bank may impose such fees, charges and/or commissions
for the operation or maintenance of any Bank Account with
the Bank or for the provision or maintenance of any Bank
Account or Service by the Bank at such standard rate as
specified in any schedule of fees published by the Bank
from time to time, provided that the Bank may vary the
amount of fees or their basis of calculation upon 30 days'
prior notice to the Customer displayed or posted on the
Bank's banking halls. Such schedule of fees shall be made
available to the Customer at any time upon requests. Any
fees, charges and/or commissions so imposed by the Bank
shall be payable by the Customer on demand.
16.2 The Customer hereby authorizes the Bank (without
prior notice or reference to the Customer) to deduct such
fees, charges and/or commission from any one or more of
the Bank Accounts.
17. Debt Collection
17.1 The Bank shall be entitled to employ debt collecting
agent(s) to collect any sum due but unpaid by the Customer
under the Terms and/or the Relevant Terms and Conditions.
The Customer hereby agrees, and acknowledges that the
Customer has been warned, that the Customer shall indemnify
and keep the Bank indemnified on a full indemnity basis
against all reasonable costs and expenses which the Bank
may reasonably incur in employing debt collecting agent(s).
18. Amendments to the Terms and/or the Relevant Terms and Conditions
18.1 The provisions or schedules contained in the Terms
and/or Relevant Terms and Conditions can be amended at
any time in such manner and to such extent as the Bank
may from time to time in its absolute discretion think
fit. Notice of such amendment shall be deemed duly and
effectively given to the Customer in accordance with Clause
5 above. Any amendments to such terms and conditions made
by the Bank shall take effect and be binding on the Customer
immediately upon notice to the Customer provided always
that the amendments which affect fees and charges and
the liabilities or obligations of the Customer shall be
notified to the Customer in accordance with Clause 16.1
and shall not take effect until 30 days prior notice has
been given to the Customer.
18.2 Where the Customer refuses to accept the amendment
and chooses to terminate the relevant Bank Account(s)
or (as the case may be) the relevant Service(s) to which
the amendment relates within a reasonable period, the
Bank shall, on application of the Customer, repay any
annual or other periodic fee (if any), which can be separately
distinguished, paid in advance in relation to such Bank
Account(s) or (as the case may be) Service(s) on a pro
rata basis unless the amount involved is minimal.
19. Liability of the Bank
19.1 Unless caused by our wilful misconduct or negligence, the Bank shall not be liable for any loss or
damage (direct or otherwise) suffered by the Customer
or any other person as a result of :
a.the cancellation of all or any Bank Account or (as
the case may be) any Service; and/or
b.the withdrawal or suspension of any transaction of
the Customer or for any failure to effect or execute any
of the order or instruction from the Customer whether
it is attributable, either directly or indirectly, to
any circumstances or events outside the control of the
Bank; and/or
c. any mechanical, electronic or other failure, malfunction,
interruption, inaccuracy or inadequacy of the Bank's
telecommunication and computer system or other equipment
or its installation or operation; any incomplete or
erroneous transmission of any instruction or order
of the Customer or any error in the execution of any
such instruction or order nor for any delay, loss (including loss of profit
or any economic loss), expenses or damages whatsoever
incurred or suffered by the Customer as a result thereof;
and/or
d.any delay, interruption or suspension howsoever caused
by any third party, including but not limited to service
providers or equipment suppliers, which interferes with,
affects or disrupts the performance of the Bank hereunder.
20. Termination of Bank Account and Service
20.1 The Bank may terminate any one or more of the Bank
Account(s) and/or Service(s) with or without cause, without
prejudice to the continuance of any one or more of the
other Bank Account(s) and/or Service(s) which shall continue
to be governed by the Terms and/or the Relevant Terms
and Conditions, provided that not less than 30 days prior
notice has been given to the Customer.
20.2 The Customer may terminate any Bank Account or Service
upon such prior written notice and in such manner and
conditions as may be prescribed by the Bank from time
to time and subject to payment of any handling fee which
the Bank may at its discretion impose, provided always
that the remaining Bank Account(s) and Service(s) shall
continue to be governed by the Terms and/or the Relevant
Terms and Conditions notwithstanding such termination.
20.3 For the avoidance of doubt, all liabilities and
obligations of the Customer incurred or existing under
the Terms and/or the Relevant Terms and Conditions or
in connection with the transaction under or in connection
with the relevant Bank Account or Service shall survive
its termination for whatsoever cause.
21. Governing Law and Jurisdiction
21.1 The validity, construction, interpretation and
enforcement of the Terms and/or the Relevant Terms and
Conditions shall be governed by the laws of the PRC and
the parties consent to the non-exclusive jurisdiction
of the courts of the PRC in connection with any suit,
action or proceeding arising out of or in connection with
the Terms and/or the Relevant Terms and Conditions.
22. Successors
22.1 The Terms and the Relevant Terms and Conditions
shall be binding on the heirs, successors and assigns
of the Customer.
23. Non-Assignment
23.1 The Customer should not assign, transfer, create,
attempt to create or permit to arise any mortgage, pledge,
lien or other form of encumbrances whatsoever on or over
any of its right and interest under the Terms and/or the
Relevant Terms and Conditions or any contracts or transaction
effected or concluded pursuant to the Terms and/or the
Relevant Terms and Conditions without the prior written
consent of the Bank.
24.Language
24.1 The English version of the Relevant Terms and Conditions
(including this Part A) is for reference only and if there
is any conflict between the English and Chinese versions,
the Chinese version shall prevail.
Part B : Specific Terms and Conditions
Schedule I
Terms and Conditions For Bank Accounts
1.Incorporation of the Common Terms of Part A
1.1 The Common Terms and Conditions set out above in
Part A of this "General Terms and Conditions for Banking
Services" (the "Common Terms") shall be incorporated as
an integral part of this Schedule, as if the Common Terms
are written in full herein. In case of conflict between
the Common Terms and the terms and conditions expressly
set out in this Schedule, the latter shall prevail.
1.2 The term "these terms and conditions" whenever used
in this Schedule I shall mean the terms and conditions
expressly set out in this Schedule I together with the
Common Terms which are incorporated herein as aforesaid.
1.3 These terms and conditions shall apply to regulate
the opening, continuance and operation of any of the Bank
Accounts.
2.Operation Arrangement
2.1 The Bank shall be entitled and is authorized by the
Customer:
a.to honour and to act on all instructions and/or orders
for transfer of funds, remittance, withdrawal and/or payment
and to debit the same to the Bank Account specified; and
b.to act on all requests, instructions, orders and/or
directions relating to the Bank Accounts, their operation
and/or closing Provided That they are (i) signed as per
the Agreed Signing Arrangement for the time being agreed
and in force for the Bank Account concerned; or (ii) given
in such other manner or pursuant to such other arrangement
as the Customer and the Bank may from time to time agree.
Any change of such arrangement(s) shall be agreed between
the Bank and the Customer.
2.2 Notwithstanding Clause 2.1 of this Schedule, save
as otherwise expressly agreed by the Bank, no instruction
for withdrawal, transfer or payment out of any Bank Account
will be accepted unless (a) there are sufficient funds
in the currency concerned available in the Bank Account
specified when the relevant instruction is being processed
by the Bank and (b) the rules and regulations of the Bank
applicable are complied with, provided however that despite
an instruction for withdrawal, transfer or payment out
of any Bank Account has been accepted by the Bank, the
Bank shall be entitled to reject such instruction if subsequently
there are somehow insufficient funds in the currency concerned
available in the relevant Bank Account when the Bank intends
to carry out the accepted instruction. For the avoidance
of doubt, after the Bank has accepted any instruction
for withdrawal, transfer or payment out of any Bank Account,
the Bank is in no way under any obligation whatsoever
to withhold any funds available in the relevant Bank Account
pending the carrying out of the accepted instruction and
the Bank shall be entitled to disburse all or any funds
in the Bank Account pursuant to any subsequent instructions
given to or accepted by the Bank.
2.3 All operations of the Bank Accounts at the counter
can only be made within such business hours determined
absolutely by the Bank.
2.4 If the Customer wishes to give instructions to the
Bank to countermand payment of a cheque or other instruments,
the Customer shall notify the Bank in writing, duly signed
in compliance with the Agreed Signing Arrangement currently
in force for the Bank Account concerned, which will only
be effective upon actual receipt by the Bank at the branch
or office at which the Bank Account concerned is maintained.
The Bank shall be entitled and without any liability to
the Customer not to act on any request, instruction or
order for countermanding payment of cheques or other instruments
not so given in the above mentioned manner (such request,
instruction or order is called an "Irregular Stop Payment
Instruction"), and the Bank does not have any duty to
make enquiry or further enquiry with the Customer on any
Irregular Stop Payment Instruction. However, notwithstanding
the foregoing, in cases of receipt of any Irregular Stop
Payment Instruction, the Bank shall have the discretion
(but not under any duty), if it deems fit so to do, to
act on such Irregular Stop Payment Instructions without
verification and/or duly signed written confirmation from
or on behalf of the Customer and not to make payment for
such items concerned until the Bank shall have actually
received duly signed instructions specifically directing
the Bank to resume payment. The Bank shall not be liable
to the Customer howsoever for its so doing, whether for
wrongful dishonour or otherwise.
2.5 The Customer authorizes the Bank to collect inward
remittances for account of the Customer from time to time
as the Bank may think fit. If the Bank elects to collect
an inward remittance for account of the Customer, the
Customer shall be bound by the following terms and such
other terms and conditions as the Bank may impose:
a.The remittance proceeds shall, after deduction of all
costs, charges and expenses, be paid to the Bank account
of the Customer nominated in the remittance instruction
or such other Bank Account as the bank may determine according
to prevailing banking practice (the "Collection Account"),
and for the purpose, the Bank may convert the currency
of the remittance proceeds into the relevant currency
of the Collection Account at the then prevailing spot
rate of exchange quoted by the Bank (as conclusively determined
by the bank);
b.The Bank shall not in any way be liable to account
to the Customer for any interest or benefit which the
Bank may receive from or derive out of the remittance
proceeds or any part thereof prior to the Bank's credit
of the same into the Collection Account and such interest
and benefit (if any) shall be received and held by the
Bank to its own use and benefit absolutely;
c.For the avoidance of doubt, nothing contained in this
Clause 2.5 shall prejudice or affect any of the Bank's
rights of appropriation or set-off.
3.Authorized Signatory(ies)
3.1 In addition and without prejudice to Clause 4 in
the Common Terms, the Authorized Signatory(ies) of a Bank
Account shall have the following powers and authorities
(to be exercised by such Authorized Signatory(ies) in
accordance with the relevant Agreed Signing Arrangement)
and the Bank shall be entitled to act thereon accordingly:
a. to withdraw, draw on and/or make payment transfer
and/or remittance from the Bank Account concerned whether
it is in credit or overdrawn or as a result thereof be
overdrawn and for so doing, to sign and/or endorse all
documents (including but not limited to cheques, bills,
drafts, promissory notes, withdrawals, requests, directions,
instructions, standing instructions and/or orders for
payment, transfer and/or remittance of all kinds and/or
receipts of all types) and to enter into with the Bank
all agreements (including but not limited to agreements
to sell or purchase currency or currencies) therefore
and/or in connection therewith notwithstanding that:
i.the above is for payment, transfer and/or remittance
to and/or for the purpose(s), use and/or benefit of the
Authorized Signatory(ies) or any one or more of them;
and/or
ii.the above will result in the reduction, satisfaction
and/or discharge of any or all of the debts and/or liabilities
of the Authorized Signatory(ies) or any one or more of
them to the Bank; and
b.to give all types of instructions to and/or to sign
all types of documents and/or to enter into all types
of agreements with the Bank in connection with and/or
for the operation of the Bank Account concerned, including
but not limited to the countermanding of payment, suspension
and/or closing of the Bank Account, earmarking of funds
in and/or facilities available on the Bank Account and/or
application for cheques but excluding any change in the
Agreed Signing Arrangement; and
c.to give all types of instructions to and/or to sign
all types of documents (including but not limited to the
endorsement and/or signing on any or all items for collection)
and/or to enter into all types of agreements (including
but not limited to indemnities, agreements to sell or
purchase currency/currencies and/or agreements for the
discounting/purchase of and/or advance/drawing against
any or all items for collection) with the Bank in connection
with and/or for (i) the collection of cheques, drafts,
bills, promissory notes, orders and/or any other items
of whatsoever nature; and/or (ii) the placing, redeposit
and/or renewal of deposits of all types with the Bank;
and
d.to receive, sign and/or verify (including certification
of) the correctness of all documents, statements of account
and/or information in relation to the Bank Account concerned.
4.Collection and Discounting of Payment
Orders
4.1 The Bank reserves the right not to accept for collection
and deposit into the Bank Accounts any cheques, bills,
drafts, promissory notes, orders and/or other instruments
(collectively, the "Payment Orders"). All Payment Orders
accepted for collection are credited subject to final
payment (i.e. the Bank's actual receipt of freely remittable
and immediately available and disposable funds therefore)
and unless otherwise agreed by the Bank are not available
for withdrawal until then. Further, whether or not the
Bank permitted withdrawal prior to final payment, the
Bank shall be entitled to charge or debit the Bank Account
concerned with Payment Orders which are subsequently returned
unpaid together with (a) interest thereon; and (b) any
cost and expenses incurred.
4.2 All collection for Payment Orders payable outside
the PRC shall be (a) subject to and on the terms of the
Uniform Rules for Collection published by the International
Chamber of Commerce and its amendments and/or replacement
currently in force at the material time save and except
that collection orders in writing may be dispensed with
unless required by the Bank; and (b) subject to the legal
requirements and/or banking practice of the place of payment
of the item concerned. The Bank has absolute and unfettered
discretion to appoint one or more correspondent banks
in presenting such Payment Orders for payment or acceptance
(as the case may be) and in relation to any other matter
arising out of the process of collection. The Bank will
not be responsible for any error, neglect, default, omission,
insolvency or failure in business of such correspondent
banks. Further, protest on such Payment Orders will not
be made by the Bank unless specifically instructed by
the Customer in writing.
4.3 Only items in the same currency or currencies at
which the Bank Account concerned is maintained shall be
payable thereinto.
4.4 All Payment Orders payable in the PRC received for
collection after the normal clearing time on any date
will be treated as received for the Bank Account concerned
on the following Business Day.
4.5 Notwithstanding any Payment Orders for collection
and payment into a Bank Account has not been endorsed
by the payee(s) thereof and whether such items bear an
"Account Payee" or "Account Payee Only" crossing, the
Bank shall be entitled and is authorized (but shall not
be obliged): (a) in case of joint account, to collect
and pay into the Bank Account concerned any Payment Order
payable to any one or more but not all of the account
holders; and (b) in case of a Bank Account in the name
of a sole proprietorship or partnership firm, to collect
and pay into the Bank Account concerned any Payment Order
payable to the sole proprietor personally or payable to
any one or more but not all of the partners (as the case
may be).
4.6 The Bank may, at the request of the Customer and
on the terms and conditions acceptable to the Bank, purchase
or discount the Payment Orders from the Customer, provided
that the Bank shall have absolute discretion to refuse
to purchase or discount the Payment Order without giving
any reason therefore. If the Bank elects to purchase or
discount any Payment Orders, the Customer shall be bound
by the following terms and such other terms and conditions
as the Bank may impose:
a.The Bank shall not be responsible for any delay in
the presentation of the Payment Orders for payment or
acceptance (as the case may be), or for any failure or
delay in the giving of notice of any claim which may be
raised by the drawers of the Payment Orders or their drawee
banks and any such duty imposed on the Bank by law to
give any such notice of claim (if any) is hereby waived
by the Customer absolutely.
b.It is expressly agreed that the Bank will have the
full and unfettered authority and discretion to deal with
those Payment Orders in the case of dishonour or non-payment
upon presentation, including without limitation whether
or not to have any such Payment Orders protested or noted
and when to do so, and that nothing done or omitted to
be done by the Bank in respect of such Payment Orders
shall in any way prejudice the Bank's right of full recourse
to the Customer.
c.If, for whatever reason, the original Payment Order
is not available, a photocopy of the Payment Order together
with supporting documents (if any) will be accepted by
the Customer as conclusive evidence for the unpaid/returned
Payment Order. The Customer shall not require the Bank
to produce and return to the Customer the original Payment
Order.
4.7 In addition and without prejudice to Clause 4.5 above,
the Bank has full recourse against the Customer in respect
of any or all of the Payment Orders purchased or discounted
by the Bank from the Customer and the Customer shall refund
to the Bank on demand at any time, whether prior to the
maturity of the Payment Order or otherwise, the sum paid
to the Customer by way of the purchase or discount of
the Payment Order together interest thereon from the date
of the Bank's payment to the Customer up to the refund
by the Customer in full at the interest rate of unarranged
overdraft mentioned in Clause 16.1 below or at such other
rate as the Bank may determine.
4.8 The proceeds of collection and any sum payable by
the Bank in purchasing and/or discounting the Payment
Orders shall, after deduction of all costs, charges, interest
and expenses (including those to be incurred by the Bank
in carrying out the payment instructions), be paid to
the Bank Account nominated by the Customer. If the Customer
fails to nominate such account, the Bank will have the
absolute and unfettered discretion to pay the above proceeds
either to any of the accounts maintained by the Customer
with the Bank or to a suspense account bearing no interest
pending further instructions from the Customer.
4.9 The Customer acknowledges that foreign exchange transactions
are settled by Hong Kong Dollars, US Dollars or such other
currencies as agreed between the Bank and the Customer
("Settlement Currency") and converted at the then prevailing
spot rate of exchange quoted by the Bank (as conclusively
determined by the Bank) for purchasing the Settlement
Currency with the currency of the relevant Payment Order.
4.10 For the Payment Orders presented by the Customer
to the Bank for collection or otherwise for discount or
purchase, the Customer warrants that he has a good title
to the Payment Orders and that the Payment Orders are
within the Customer's own disposition and control.
4.11 The Customer further agrees to indemnify and keep
the Bank indemnified on a full indemnity basis from and
against all actions, suits, proceedings, claims, demands,
losses, damages, costs, fees, commissions, charges, expenses
and/or liabilities of whatever nature whether in contract,
tort or otherwise which the Bank may suffer, incur or
sustain, whether actual or contingent, by reason, arising
out of or in connection with each and every collection,
purchase and/or negotiation made for the account of the
Customer from time to time or in connection with defending
by the Bank of any claim or proceedings made or taken
out, or threatened to be made or taken out against the
Bank in relation to such collection, purchase and/or negotiation
including all legal and other costs, charges and expenses
the Bank may incur in connection with enforcement or attempted
enforcement of the Bank's rights in respect thereof.
4.12 The Bank shall be entitled to charge the Customer
fees and/or charges for and/or relating to any Payment
Orders accepted for collection, purchase and/or negotiation
(as the case may be) as specified in any schedule of fees/charges
published by the Bank from time to time. Such schedule
of fees/charges shall be made available to the Customer
at any time upon request. Further and in addition to the
above, the Customer shall indemnify and reimburse the
Bank on demand for all fees, charges, claims, liabilities,
payment, costs and expenses for any such Payment Orders.
5.Rules and Regulations
5.1 The rules and regulations (the "Rules and Regulations")
of the Bank applicable to accounts of the same type as
that of the Bank Account concerned for the time being
currently in force from time to time shall be absolutely
binding on and have contractual effect against the Customer
Provided Always That:
a.the Bank shall be entitled to add, delete and/or amend
the Rules and Regulations from time to time in accordance
with Clause 18 of the Common Terms; and
b.if there is any conflict between any of the Rules and
Regulations (including its addition deletion and/or amendment
currently in force) on the one hand and these terms and
conditions on the other hand, the latter shall prevail.
6.Rules of the China banking supervisory
authorities
6.1 All Bank Accounts shall be subject to the Rules of
China or/and Hong Kong banking supervisory authorities
(including those regarding fees and charges on accounts)
which are binding on the Bank from time to time. In case
of conflict between the Rules of China or/and Hong Kong
banking supervisory authorities and the terms and conditions
of the Bank Accounts, the Rules of China or/and Hong Kong
banking supervisory authorities shall prevail.
7.Current Accounts
7.1 The following provisions shall only be applicable
to Bank Account(s) which is/are current account(s):
a.instructions for withdrawals may be given in writing
by cheques or withdrawal slips, but unless otherwise agreed
by the Bank, forms supplied by the Bank must be used;
b.cheque books may only be issued on application by the
Customer in compliance with the procedure prescribed and
determined absolutely by the Bank from time to time and
upon payment of fees as specified in any fee schedule
published by the Bank from time to time. The Bank reserves
the absolute right in determining the form and content
of the cheques and the quantity of cheques to be issued
to the Customer at any one time or use in relation to
any of the Bank Accounts concerned. Cheque books may be
delivered to the Customer in person or to such person(s)
duly authorized by the Customer or by post to the Customer
at the Customer's address on record with the Bank at the
cost and expense of the Customer. The Bank assumes no
responsibility for delay or loss or mis-delivery so long
as cheque books are sent in accordance with Clause 5 of
the Common Terms;
c.if the Bank agrees in its sole and absolute discretion
to pay interest on the balance standing to the credit
of a current account, the following provisions shall apply:
i.subject to the sub-paragraphs below, interest will
accrue on the daily credit balance(s) in the Bank Account
at such rate(s) determined absolutely by the Bank from
time to time;
ii.for the avoidance of doubt, if the Bank Account contains
credit balances denominated in different currencies, different
interest rate(s) may be applied by the Bank to such credit
balances. The interest rate applicable to a particular
credit balance may be zero if such credit balance falls
below the minimum deposit amount (if any) designated by
the Bank. Such minimum deposit amount may be varied by
the Bank upon 30-day prior notice to the Customer;
iii.for items under collection, interest will only start
to accrue when the funds are actually collected and credited
into the Bank Account concerned;
iv.the interest accrued will be credited to the Bank
Account half-yearly or on such other basis as may be determined
by the Bank absolutely from time to time;
v.if the Bank Account is closed at any time prior to
the date on which the accrued interest is due to be credited
to the Bank Account, interest will be deemed to accrue
and payable up to the end of the preceding month or such
other date as determined by the Bank absolutely;
Provided always that the Bank shall not be under any
obligation to pay interest on the credit balance of a
current account.
8.Savings Accounts
8.1 The following provisions shall only be applicable
to Bank Account(s) which is/are savings account(s):
a.savings accounts may be passbook savings accounts or
statement savings accounts. For passbook savings accounts,
a passbook will be issued to the Customer for operation
of the Bank Account concerned. For statement savings accounts,
an Account Identification Card will be issued to the Customer
for the operation of the Bank Account concerned. Withdrawals
from savings accounts cannot be made by means of cheques;
b.for withdrawal from savings accounts at the counter,
the passbook (in case of passbook savings accounts) or
the Account Identification Card (in case of statement
savings accounts) of the Bank Account concerned must be
presented. Payments or transfers made by the Bank to,
or pursuant to the instruction of, a person producing
the passbook/Account Identification Card (as the case
may be) and a withdrawal form purporting to be signed
as authorized shall be an absolute discharge to the Bank
Provided Always that the Bank shall be entitled (but not
under any duty so to do), if deems fit, to require any
of the Authorized Signatory(ies) to make the withdrawal
in person and produce such identification satisfactory
to the Bank;
c.passbooks and Account Identification Cards are the
property of the Bank. The Customer shall not tamper and/or
meddle with (i) the passbooks and/or the entries therein;
and (ii) the Account Identification Cards. Replacement
passbook/Account Identification Card of any of the Bank
Accounts will only be issued by the Bank on such terms
and conditions and subject to such fees/charges as specified
in any schedule of fees/charges published by the Bank
from time to time. Such schedule of fees/charges shall
be made available to the Customer at any time upon request;
d.passbooks and Account Identification Cards are not
transferable or assignable and cannot be pledged as security;
e.for passbook savings accounts, the balances in the
passbooks of the Bank Accounts are for reference only
as there may be transactions made without the production
of the passbook and items not yet posted therein. However,
the Customer shall have a duty to examine and verify the
correctness of each and every entries in the passbooks
and notify the Bank at the office or branch at which the
Bank Account concerned is maintained immediately in writing
if any of them is wrongful, irregular and/or unauthorized.
Unless the Bank shall have actually received such notice
within 90 days of the posting of the relevant entry in
the passbook, the Customer shall be deemed to have conclusively
confirmed and accepted such entries and shall not be entitled
to raise subsequently any claims or dispute thereon on
whatever grounds, except in relation to those unauthorized
transactions set out in Clause 7.2 of the Common Terms;
f.savings accounts may be for a specified currency or
for multi-currencies. For a multi-currency account, only
such currencies determined absolutely by the Bank from
time to time will be permitted for deposit into such Bank
Accounts; and
g.if the Bank agrees to pay interest on the balance standing
to the credit of a savings account, the provisions under
Clause 7.1.c of this Schedule shall apply to the savings
accounts as they apply to current accounts.
9.Time Deposits
9.1 The following provisions shall be applicable to and
binding on all types of time deposits (whether for a fixed
term or at call and whether an ordinary deposit or a swap
deposit or a club deposit or otherwise):
a.the term "fixed deposit" means any deposit denominated
in any currency which is deposited with the Bank for a
fixed term or up to an agreed date. The date falling on
the end of such fixed term or such agreed date is hereinafter
called the "Due Date". For the avoidance of doubt, a fixed
deposit includes, but without limitation, a swap deposit
or a club deposit;
b.the term "call deposit" means any deposit denominated
in any currency which is deposited with the Bank subject
to the condition that its withdrawal may only be made
after the Customer has given the Bank a withdrawal notice
of a prescribed period;
c.the term "time deposit" used in this Clause 9 shall
mean a fixed deposit and/or a call deposit, as the case
may be;
d.upon accepting a time deposit from the Customer, the
Bank will issue to the Customer a deposit confirmation
to evidence the deposit and its essential terms (including
but not limited to the Due Date, if the time deposit is
a fixed deposit) (the "Deposit Confirmation");
e.the Bank reserves the right not to accept any time
deposit at its absolute discretion. All time deposits
accepted by the Bank shall be subject to and governed
by these terms and conditions and the terms and conditions
set out in the relevant Deposit Confirmation, and if there
is any conflict, the latter shall prevail;
f.if there requires any conversion of currencies to set
up a time deposit, the applicable exchange rate shall
be quoted and determined by the Bank absolutely;
g.the Bank reserves the absolute right to require time
deposits to be made by immediately available funds in
the same currency as that of the time deposit. In the
event the Bank agrees in its discretion to set up a time
deposit pending receipt of available funds, (i) the deposit
will only take effect upon actual receipt of the funds
in full by the Bank; (ii) the time deposit may be cancelled
by the Bank without notice if such funds is not subsequently
received in full by the Bank; and (iii) the Customer shall
on demand indemnify the Bank for all reasonable losses,
payments, costs and expenses arising out or as a result
of such non-receipt of the funds in full by the Bank;
h.the Bank shall be entitled (but not under any duty)
to require the production and surrender to the Bank of
the Deposit Confirmation concerned for the withdrawal
of any time deposit;
i.unless otherwise agreed by the Bank, fixed deposits
can only be withdrawn on or after the applicable Due Date
and call deposits can only be withdrawn after the expiration
of the prescribed withdrawal notice given by the Customer.
Withdrawal of any time deposit may not be made by means
of cheque. Unless otherwise agreed by the Bank, all withdrawals
of time deposits shall be made in the PRC and payable
by the Bank in the PRC in accordance with the procedures
prescribed by the Bank from time to time;
j.if the Due Date of a fixed deposit, or the day on which
the Customer is entitled to withdraw a call deposit, is
not a Business Day, it shall be postponed to the succeeding
Business Day;
k.interest shall accrue on a fixed deposit at such rate
and up to such Due Date as specified in the applicable
Deposit Confirmation. Accrued interest is only payable
on the Due Date and no interest is payable if the fixed
deposit is withdrawn prior to the Due Date. For the avoidance
of doubt, unless the fixed deposit and its accrued interest
or any part thereof has been renewed for a new term of
deposit, interest will cease to accrue as from the applicable
Due Date;
l.as for call deposits, interest will be calculated on
a daily basis at the rate quoted by the Bank in its absolute
discretion for deposits of comparable amount and for comparable
duration and such rate of interest will be subject to
fluctuation. Interest on a call deposit is only payable
upon the expiration of the prescribed withdrawal notice,
and in the invent that the call deposit is withdrawn prior
to such expiration, demand deposit interest issued by
the China banking supervisory authority is payable to
the RMB call deposit and no interest is payable to the
call deposit in other currencies;
m.in respect of fixed deposits, the Customer may give
standing instructions to the Bank as to the fixed disposal
of the deposit and its accrued interest on the applicable
Due Date. The Bank shall be entitled to act on such instructions
of the Customer unless and until the Bank receives further
instructions from the Customer to the contrary; and
n.unless otherwise agreed by the Bank, the deposit and
its accrued interest shall only be withdrawable by the
Customer at the branch/sub-branch of the Bank where the
time deposit is placed and set up. Furthermore, all instructions
relating to the disposal or renewal of the time deposit
and its accrued interest should also be directed to such
branch/sub-branch, unless the Bank agrees otherwise.
9.2 The following additional provisions shall be applicable
to fixed deposits which are swap deposits:
a. as between the Bank and the Customer, a swap deposit
shall be a fixed deposit with its principal amount denominated
in the currencies determined absolutely by the Bank from
time to time (the "Principal"). The swap deposit and the
accrued interest payable to the Customer on the applicable
Value Date shall also be denominated in the currency of
the Principal;
b.the Bank shall be entitled to convert the original
Principal amount of a swap deposit into a foreign currency
(the "Swap Amount") at such spot exchange rate as specified
in the relevant Deposit Confirmation. The Bank shall also
be entitled to calculate interest on the Swap Amount at
such contract rate as specified in the Deposit Confirmation
up to the applicable Due Date. In addition, on the Due
Date, the Bank shall be entitled to convert the Swap Amount
together with interest thereon into the Principal at such
forward exchange rate as specified in the Deposit Confirmation,
and the Bank shall only be obliged to pay the resultant
Principal amount to the Customer;
c. all the particulars shown in the applicable Deposit
Confirmation, in particular (but without limitation) the
spot and forward exchange rates specified therein, shall
be binding on the Customer absolutely and form an integral
part of the swap deposit; and
d.if the Customer gives any instruction to the Bank to
renew the Principal amount of an existing swap deposit
for a new term on or after the applicable Due Date, such
"Principal amount" shall be deemed to mean an amount equal
to the Principal amount originally deposited by the Customer
to set up the existing swap deposit.
9.3 The following additional provisions shall be applicable
to fixed deposits which are club deposits:
a.under a club deposit, the Customer will be required
to make deposit(s) in such amount(s) and at such time(s)
as specified in the applicable Deposit Confirmation, during
the period leading up to the applicable Due Date;
b.if any day on which the Customer is required to make
any deposit under the deposit requirement mentioned in
Clause 9.3.a above is not a Business Day, such day shall
be deemed to mean and refer to the immediately preceding
Business Day so that the Customer is required to make
the relevant deposit on such preceding Business Day; and
c.unless otherwise agreed by the Bank, no interest shall
be payable on the applicable Due Date on any amount deposited
by the Customer as a part of a club deposit, unless the
Customer has duly and punctually complied with the deposit
requirement mentioned in Clauses 9.3.a and 9.3.b above.
10. Accounts in Foreign Currencies
10.1 The following provisions shall apply to all types
of Bank Accounts and deposits in foreign currencies:
a.the words "foreign currency" or "foreign currencies"
mean all currencies other than RMB and shall include units
of accounting internationally accepted as equivalent to
currencies;
b.accounts in foreign currencies may be foreign currencies
telegraphic transfer -- T/T accounts ("T/T accounts")
or foreign currencies notes accounts ("notes accounts").
Unless expressly stated as notes accounts, all Bank Accounts
in foreign currencies are T/T accounts. For T/T accounts,
the Bank reserves the absolute right not to accept bank
notes for payment into the Bank Account concerned and
in case of such acceptance, bank notes will only be accepted
subject to payment of the difference in exchange and/or
such other fees or charges as specified in any fee schedule
published by the Bank from time to time and to be made
available to the Customer upon request;
c.for withdrawals from Bank Accounts in foreign currencies,
the Bank shall be entitled to pay the Customer by any
one or a combination of two or more of the following methods
as absolutely determined by the Bank:
i.for T/T accounts, subject to such charges as specified
in any fee schedule published by the Bank from time to
time and to be made available to the Customer upon request,
by telegraphic transfer of the amount withdrawn, in its
original currency to such account or accounts with a financial
institution designated by the Customer and acceptable
to the Bank; and/or
ii.for T/T accounts, subject to such charges as specified
in any fee schedule published by the Bank from time to
time and to be made available to the Customer upon request
,by issuing to the Customer a cheque or draft payable
in the original currency of the amount withdrawn and drawn
on such bank at such place as the Bank may determine absolutely;
and/or
iii.for all accounts, subject to such charges or commissions
as specified in any fee schedule published by the Bank
from time to time and to be made available to the Customer
upon request and subject to availability of such bank
notes to the Bank, by cash payment in the original currency
of the amount withdrawn; and/or
iv.for all accounts, by payment in Hong Kong Dollars
being the equivalent of the amount withdrawn after it
is converted into RMB at the applicable T/T buying rate
(for T/T accounts) or at the applicable notes rate (for
notes accounts) quoted by the Bank at the time of such
withdrawal.
11. Duty of the Customer as regards
Cheques, Passbooks, Account Identification Cards of Statement
Savings Accounts and Deposit Confirmations
11.1 The Customer shall have a duty (a) to keep and store
all unissued cheques, passbooks, Account Identification
Card of statement savings accounts and Deposit Confirmations
and (b) to give notice in writing of any loss and/or theft
thereof to the Bank immediately upon discovery. In case
of loss and/or theft of any of the above-mentioned documents,
the Bank shall not be liable to the Customer for any irregular
and/or unauthorized withdrawal from the Bank Account concerned
whether as a result of forgery or otherwise howsoever
which occurs prior to the Bank's actual receipt of notice
in writing of such loss and/or theft, Provided that nothing
in this Clause 11.1 shall affect the Customer's right
of recourse in relation to those unauthorized transactions
set out in Clause 7.2 of the Common Terms.
12. Statements of Accounts
12.1 The Customer shall have a duty to examine and verify
the correctness of each and every statement of account
sent by the Bank to the Customer and notify the Bank immediately
in writing, if any entries are wrongful, irregular and/or
unauthorized. Unless the Bank shall have actually received
such notice above mentioned within 90 days of the date
of sending by the Bank of the statement of account concerned,
the Customer shall be deemed to have conclusively confirmed
and accepted all entries therein and estopped from raising
subsequently any claims or dispute on such entries, except
in relation to the transactions set out in Clause 7.2
of the Common Terms.
12.2 In cases of current accounts, statement savings
accounts and any other accounts for which monthly statements
will be issued by the Bank, if the Customer shall not
have received a statement of account of the Bank Account
concerned for any monthly period (i.e. the usual monthly
periods for which monthly statements in relation to the
Bank Account concerned are issued) in which a transaction
or transactions has/have been carried out on or in relation
to such Bank Account within 15 days from the end of such
a monthly period, the Customer shall have a duty to notify
the Bank immediately of such non-receipt in writing. Unless
such notice of non-receipt has actually been received
by the Bank, the Customer shall be conclusively deemed
to have received the statement of account covering the
period concerned and the Customer shall be estopped from
alleging the non-receipt of such statement of account.
Further, upon expiration of 90 days from the date of sending
of the statement by the Bank, the Customer shall be estopped
from raising any claims or dispute on any entries therein,
except in relation to the transactions set out in Clause
7.2 of the Common Terms.
12.3 In case of current accounts, statement savings accounts
and any other accounts for which periodical statements
will be issued by the Bank, if there is no transaction
on the Bank Account concerned in any such period, the
Bank shall be entitled not to send any statement of account
of the Bank Account concerned to the Customer for the
period concerned.
13. The Bank's Right to Correct Accounts
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