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STARLING GOLD ASSET MANAGEMENT LIMITED
PRECIOUS METAL CLIENT AGREEMENT
RISK DISCLOSURE STATEMENT
This brief statement does not disclose all of the risks and other significant aspects of precious metal (including Loco London Gold & Loco London Silver & Hong Kong Gold ) (collectively referred to as "Bullion"). In light of the risks, Client should undertake such transactions only if Client ("Client") understands the nature of the trading into which Client is about to engage and the extent of Client’s exposure to risk. Trading in precious metal is not suitable for many members of the public. You should carefully consider whether trading is appropriate for Client in light of Client’s investment experience, objectives, risk-bearing ability, financial resources and other relevant circumstances. Before Client opens an account and proceeds with trading, Client is advised to seek advice from legal advisors or other professionals.
Precious Metal Trading
1. Effect of "Leverage" or "Gearing"
Precious metal transactions carry a high degree of risk. The amount of initial margin may be small relative to the value of the precious metal so that transactions are 'leveraged' or 'geared'. A relatively small market movement may have a proportionately larger impact on the funds Client has deposited or will have to deposit: this may work against Client as well as for Client. Client may sustain a total loss of initial margin funds and any additional funds deposited with the firm to maintain Client’s position. If the market moves against Client’s position or margin levels are increased, Client may not be able to pay additional funds in time to maintain Client’s position and Client’s position may be liquidated at a loss and Client will be liable for any resulting losses.
2. Risk-reducing orders or strategies
The placing of certain orders (e.g., "stop-loss" and “stop-limit” orders), which are intended to limit losses, may not precisely limit losses or be executed at all. If an order is placed at a stop-limit, there is no guarantee that the order will be executed at the limit, or even at all. Strategies using combinations of positions, such as "spread" and "straddle" positions, may be as risky as taking simple "long" or "short" positions.
Additional Risks Common to Precious Metal Trading
3. Trading facilities
Most open-outcry and electronic trading facilities are supported by computer-based component systems for the order-routing, execution, matching, registration or clearing of trades. As with all facilities and systems, they are vulnerable to temporary disruption or failure. Client’s ability to recover certain losses may be subject to limits on liability imposed by the system provider, the market, the clearing house and/or member firms. Such limits may vary.
4. Electronic trading
Trading on an electronic trading system may differ not only from trading in an open-outcry market but also from trading on other electronic trading systems. If Client undertakes transactions on an electronic trading system, Client will be exposed to risks associated with the system including the failure of hardware and software. The result of any system failure may be that Client’s order is either not executed according to Client’s instructions or is not executed at all.
5. Off-exchange transactions
In some jurisdictions, and only then in restricted circumstances, firms are permitted to effect off-exchange transactions. The firm with which Client deals may be acting as Client’s counterparty to the transaction. STARLING GOLD ASSET MANAGEMENT LIMITED functions as a direct counterparty to Client in many precious metal transactions. STARLING GOLD ASSET MANAGEMENT LIMITED neither offers the right to offset, nor guarantees a market in which to offset, transactions it effects as a counter party. Therefore, it may be difficult or impossible to liquidate an existing position, to assess its value, to determine a fair price or to assess the exposure to risk. For these reasons, these transactions may involve increased risks. Off-exchange transactions may be less regulated or subject to a separate regulatory regime. Before Client undertakes such transactions, Client should familiarize himself/herself/itself with applicable rules and attendant risks.
6. Transactions in other jurisdictions
Transactions in other jurisdictional markets, including markets formally linked to a domestic market, may expose Client to additional risk. Such markets may be subject to regulation, which may offer different or diminished investor protection. Before Client trades Client should enquire about any rules relevant to Client’s particular transactions. Client’s local regulatory authority will be unable to compel the enforcement of the rules of regulatory authorities or markets in other jurisdictions where Client’s transactions have been effected. Client should ascertain and understand the remedies available in both Client’s home jurisdiction and other relevant jurisdictions before Client starts to trade.
7. Terms and conditions of Precious Metal Trading
Client should ask about the terms and conditions of the precious metal transactions which Client is trading and associated obligations.
8. Suspension or restriction of trading and pricing relationships
Market conditions (e.g., liquidity) and or the operation of the rules of certain markets (e.g., the suspension of trading in any precious metal because of price limits or "circuit breakers") may increase the risk of loss by making it difficult or impossible to effect transactions, liquidate or offset positions. Further, normal pricing relationships between the underlying interest and the precious metal may not exist. The absence of an underlying reference price may make it difficult to judge "fair" value.
9. Commission and other charges
Before Client begins to trade, Client should obtain a clear explanation of all commission, fees and other charges for which Client will be liable. These charges will affect Client’s net profit (if any) or increase Client’s loss.
10. Deposited cash and property
Client should familiarize himself/herself/itself with the protections accorded money or other property Client deposits for domestic and foreign transactions, particularly in the event of a firm insolvency or bankruptcy. The extent to which Client may recover Client’s money or property may be governed by specific legislation or local rules. In some jurisdictions, property which has been specifically identifiable as Client’s own, will be pro-rated in the same manner as cash for purposes of distribution in the event of a shortfall.
NOTICE TO CLIENTS
This agreement is legally binding, please read it carefully.
This is a legal contract between STARLING GOLD ASSET MANAGEMENT LIMITED, (hereinafter referred to as SGAML) a limited liability corporation organized under the laws of the Hong Kong Special Administrative Region, its successors and assigns, and the party (or parties) entering into this document (hereinafter referred to as "Client").
In connection with opening an account to speculate and or purchase and or sell precious metal through the OTC precious metal markets (hereinafter referred to as "OTC precious metal markets”) with SGAML, Client acknowledges that Client understands the following factors concerning trading in leveraged “OTC precious metal markets”, in addition to those contained in the Risk Disclosure Statement which has been provided to Client above.
1. Trading in “OTC precious metal markets” is suitable only for those sophisticated institutions or participants financially able to withstand losses that may substantially exceed the value of margins or deposits.
2. The “OTC precious metal markets” business is not traded on an organized exchange and therefore does not require open-outcry. Even though quotations or prices are afforded by many computer-based component systems, the quotations and prices may vary due to market liquidity. Many electronic trading facilities are supported by computer-based component systems for the order-routing, execution or matching of trades. As with all facilities and systems, they are vulnerable to temporary disruption or failure. Client’s ability to recover certain losses may be subject to limits on liability imposed by the system provider, the market, the bank and or financial institution.
3. In “OTC precious metal markets”, firms are not restricted to effecting exchange transactions only. Accordingly, SGAML may be acting as Client’s counterparty to the transaction. It may be difficult or impossible to liquidate an existing position, to assess the value, to determine a fair price or to assess the exposure to risk. For these reasons, these transactions may involve increased risks. Off-exchange transactions may be less regulated or subject to a separate regulatory regime. Before Client undertakes such transactions, Client should familiarize himself/herself/itself with applicable rules and attendant risks.
4. There are no guarantees to the credit worthiness of the counterparty of Client’s precious metal position. Every attempt has been made to deal with reputable creditworthy institutions and clearing houses. Also, there may be certain cases in which trading liquidity decreases causing trading in a certain currency to cease, thereby preventing the liquidation of an adverse position that may result in a substantial financial loss.
5. Client acknowledges that the purchase or sale of a precious metal always includes delivery to the extent that Client's account shall be credited with each Spot transaction.
6. SGAML's margin policies and or the policies of those institutions/clearing houses through which clients are executed may require that additional funds be provided to properly maintain a margin Client’s account and that Client is obligated to immediately meet such margin requirements. Failure to meet requirements may result in the liquidation of any open positions with a resultant loss. SGAML also reserves the right to refuse to accept any order or guarantee a market in which to offset.
7. Trading on an electronic trading system may differ not only from trading in the interbank market but also from trading on other electronic trading systems. If Client undertakes transactions on an electronic trading system, Client will be exposed to risks associated with the system including the failure of hardware and software. The result of any system failure may be that Client’s order is either not executed according to Client’s instructions or is not executed at all.
i) Internet failures:
Since SGAML does not control signal power, its reception or routing via Internet, configuration of Client’s equipment or reliability of its connection, SGAML cannot be responsible for communication failures, distortions or delays when trading on-line (via Internet).
ii) Market risks and on-line trading:
Trading precious metal involves substantial risk that is not suitable for everyone. See Client Agreement for more detailed description of risks. Trading on-line, no matter how convenient or efficient, does not necessarily reduce risks associated with precious metal trading.
iii) Password protection:
Client is obligated to keep passwords confidential and ensure that third parties do not obtain access to the trading facilities. Client agrees to be conclusively responsible for any instructions received electronically that is identified with Client’s password and Account number and for any electronic, oral and written instruction to SGAML from persons whom SGAML, in its sole judgment, believes are apparently authorized by Client. SGAML shall have no responsibility for further inquiry into such apparent authority and no liability for the consequences of any actions taken or failed to be taken by SGAML in reliance on any such instructions or on the apparent authority of any such persons.
iv) Quoting and Execution Errors:
Should quoting and or execution errors occur, which may include, but are not limited to, a dealer's mistype of a quote, a quote or trade which is not representative of fair market prices, an erroneous price quote from a Client, such as but not limited to a wrong big figure quote or an erroneous quote due to failure of hardware, software or communication lines or systems and or inaccurate external data feeds provided by third-party vendors, SGAML will not be liable for the resulting errors in account balances. In addition, orders must be placed allowing sufficient time to execute, as well as, sufficient time for the system to calculate necessary margin requirements. The execution or orders placed too close to prices, which would trigger other orders (regardless of order type) or a margin alert, cannot be guaranteed. SGAML will not be liable for the resulting margin alert, resulting balance, and or positions in the account due to the system not having been allowed sufficient time to execute and or calculate accordingly. The foregoing list is not meant to be exhaustive and in the event of a quoting or execution error, SGAML reserves the right to make the necessary corrections or adjustments for the account involved. Any dispute arising from such quoting or execution errors will be resolved by SGAML in its sole and absolute discretion. Client agrees to indemnify and hold SGAML harmless from all damages or liability as a result of the foregoing.
Internet, connectivity delays, and price feed errors sometimes create a situation where the prices displayed on SGAML’s trading platform do not accurately reflect the market rates. The concept of arbitrage and “scalping”, or taking advantage of these Internet delays, cannot exist in an OTC market where Client is buying from or selling directly to the market maker. SGAML does not permit the practice of arbitrage on the SGAML trading platform. Transactions that rely on price latency arbitrage opportunities may be revoked. SGAML reserves the right to make the necessary corrections or adjustments on the account involved. Accounts that rely on arbitrage strategies may at SGAML’s sole discretion be subject to dealer intervention and dealer approval of any orders and or termination of Client’s account. Any dispute arising from such arbitrage and or manipulation will be resolved by SGAML at its sole and absolute discretion. SGAML reserves the right to withhold withdrawals until such matters are resolved. Any action or resolution stated herein shall not waive or prejudice any rights or remedies which SGAML may have against Client and or his/her/its representative, all of which are expressly reserved.
vi) Price, Execution and Platform Manipulation
SGAML strictly forbids any form of manipulation of its prices, execution and platform. SGAML reserves the right to investigate and review any account SGAML suspects of manipulation and withhold funds suspected of being derived from such activity. SGAML reserves the right to make the necessary corrections or adjustments to the account involved. Accounts that are suspected of manipulation may at SGAML’s sole discretion be subject to dealer intervention and dealer approval of any orders and or termination of Client’s account. Any dispute arising from such arbitrage and or manipulation will be resolved by SGAML in its sole and absolute discretion. SGAML at its own discretion may report such incidents to any relevant regulatory and law enforcement authority. Any action or resolution stated herein shall not waive or prejudice any rights or remedies which SGAML may have against Client and or its officers, all of which are expressly reserved.
vii) Bankruptcy Protections
The transactions Client enters into with SGAML are not traded on an exchange. If SGAML becomes insolvent and Client has a claim for funds deposited or profits earned on transactions with SGAML, Client’s claim may not receive a priority. Without a priority, Client is a general creditor and the claim will be paid, along with the claims of other general creditors, from any monies still available after priority claims are paid.
8. In the event that Client grants trading authority or control over Client's account to a third party (hereinafter referred to as “Introducing Broker”), whether on a discretionary or non-discretionary basis, SGAML shall in no way be responsible for reviewing Client 's choice of such Introducing Broker or for making any recommendations with respect thereto. SGAML makes no representations or warranties concerning any Introducing Broker; SGAML shall not be responsible for any loss to Client occasioned by the actions of the Introducing Broker; and SGAML does not, by implication or otherwise endorse or approve of the operating methods of the Introducing Broker. If Client gives the Introducing Broker authority to exercise any of Client’s rights over Client’s account, Client does so at Client’s own risk.
9. SGAML does not control, and cannot endorse or vouch for the accuracy or completeness of any information or advice Client may have received or may receive in the future from Introducing Broker (see section Referral Disclosure below) or from any other person not employed by SGAML regarding precious metal trading or the risks involved in such trading. If Introducing Broker or any other third party provides Client with information or advice regarding precious metal trading, SGAML shall in no way be responsible for any loss to Client resulting from Client’s use of such information or advice. Client understands that Introducing Broker and many third party vendors of trading systems, courses, programs, research or recommendations may or may not be regulated by a government agency.
10. Client has fully observed the laws of the relevant territory including the obtaining of any governmental or other consents which may be required for observing any other formalities needed to be observed in such territory or jurisdiction and to pay any taxes, duties and other amounts required to be paid in such territory or jurisdiction in connection with the execution of any trade through this platform. Further, the execution of any trade through this platform shall be deemed to constitute a representation and warranty from Client to SGAML that these local laws and requirements have been complied with. Should Client be in any doubt as to Client’s position, Client should consult Client’s professional advisers.
11. Client should be aware that guaranteeing any return is illegal. In addition, SGAML is not responsible for any claims or assurances made by SGAML, its employees and or associates unless it is in writing.
SGAML AND INTRODUCING BROKER ARE WHOLLY SEPARATE AND INDEPENDENT FROM ONE ANOTHER. THE AGREEMENT BETWEEN SGAML AND INTRODUCING BROKER DOES NOT ESTABLISH A JOINT VENTURE OR PARTNERSHIP AND INTRODUCING BROKER IS NOT AN AGENT OR EMPLOYEE OF SGAML.
1. Client understands and agrees that if Client’s account with SGAML is introduced by the Introducing Broker that Introducing Broker, may be provided access to certain personal information about Client as well as certain information concerning trading activity in Client’s SGAML Account. Client understands and agrees that if Client's account with SGAML is introduced by Introducing Broker, that Introducing Broker shall have the right to access Client's SGAML account, but the Introducing Broker shall not have the right to enter into any trades on Client's SGAML account unless authorized by Client under a power of attorney between Client and Introducing Broker granting such Introducing Broker the right to trade on Client's behalf.
2. Client understands and acknowledges that SGAML may compensate Introducing Broker for introducing Client to SGAML and that such compensation may be on a per-trade basis or other basis. Such compensation to the Introducing Broker may require the Client to incur a mark-up, above and beyond the ordinary spread generally provided by SGAML. Further, Client has a right to be informed of the precise nature of such remuneration.
3. Because the risk factor is high in precious metal transactions trading, only genuine "risk" funds should be used in such trading. If Client does not have the extra capital Client can afford to lose, Client should not trade in the precious metal markets.
4. Client understands that Introducing Broker and many third party vendors of trading systems, courses, programs, research or recommendations are not regulated by any government agency.
5. To the extent Client has previously been led to believe or believes that utilizing any third party trading system, course, program, research or recommendations provided by Introducing Broker or any other third party will result in trading profits, Client hereby acknowledges, agrees and understands that all precious metal trading, including trading done pursuant to a system, course, program, research or recommendations of Introducing Broker or another third party involves a substantial risk of loss. In addition, Client hereby acknowledges, agrees and understands that the use of a trading system, course, program, research or recommendations of Introducing Broker or another third party will not necessarily result in profits, avoid losses or limit losses.
6. If Introducing Broker or any other third party provides Client with information or advice regarding precious metal trading, SGAML shall in no way be responsible for any loss to Client resulting from Client's use of such information or advice.
7. Client acknowledges that no promises have been made by SGAML or any individual associated with SGAML regarding future profits or losses in Client's account. Client understands that precious metal trading is very risky, and that many investors lose money trading.
8. SGAML provides risk disclosure information to all new Clients when an account is opened. Client should read that information carefully, and should not rely on any information to the contrary from any other source. The execution of any trade through this platform shall be deemed to represent that Client has read and understood SGAML’s risk disclosure information.
9. SGAML does not control, and cannot endorse or vouch for the accuracy or completeness of any information or advice Client may have received or may receive in the future from Introducing Broker or from any other person not employed by SGAML regarding precious metal trading or the risks involved in such trading.
10. SGAML does not endorse or vouch for the services provided by the Introducing Broker. Since Introducing Broker is not an employee or agent of SGAML, it is Client’s responsibility to perform necessary due diligence on the Introducing Broker prior to using any of their services.
SGAML agrees to carry one or more accounts of Client and provide services to Client in connection with the trading of “OTC precious metal markets” (as defined in the NOTICE TO CLIENTS section above) by or through SGAML for Client's account(s).
1. TERMS AND HEADINGS
The term " SGAML " shall be deemed to include SGAML, its divisions, its successors and assigns; the term "Client" shall mean the party (or parties) entering into the Agreement; and the term "Agreement" shall include all other Agreements and authorizations entered into by Client in connection with the maintenance of Client's account with SGAML. The paragraph headings in this Agreement are inserted for convenience of reference only and are not deemed to limit the applicability or affect the meaning of any of its provisions.
2. BINDING EFFECT
This Agreement (comprising the RISK DISCLOSURE STATEMENT, NOTICE TO CLIENTS and this CLIENT AGREEMENT together with the Account Application) shall be continuous and shall cover, individually and collectively, all accounts of Client at any time opened or reopened with SGAML irrespective of any change or changes at any time in the personnel of SGAML or its successors, assigns, or affiliates. This Agreement including all authorizations, shall inure to the benefit of SGAML and its successors and assigns, whether by merger, consolidation or otherwise, and shall be binding upon Client and or the estate, executor, trustees, administrators, legal representatives and successors of Client. Client hereby ratifies all transactions with SGAML effected prior to the date of this Agreement, and agrees that the rights and obligations of Client in respect thereto shall be governed by the terms of this Agreement.
This Agreement shall not be deemed to be accepted by SGAML nor become a binding contract between Client and SGAML until it is approved and confirmed by SGAML.
4. AUTHORIZATION TO TRADE
SGAML may take opposite position to match the Client's partial or entire trading orders and/or transfer the orders to market. SGAML is authorized to purchase and or sell “OTC precious metal markets” in accordance with Client’s oral or written or computer instructions for Client's account(s) with a counterparty bank or institutions or participants. Unless instructed by Client to the contrary in writing, SGAML is authorized to execute all orders with such banking institutions, counterparty, bank, or institutions or participants as SGAML deems appropriate. SGAML shall be entitled to rely upon any oral or written communication or instructions received from Client, including Client’s officers, partners, principals or employees (“Authorized Persons”), so long as SGAML receives no notification from Client informing SGAML of Authorized Persons lack of authority to instruct SGAML. Client agrees that such Authorized Persons are authorized on its behalf to furnish SGAML all data, information, instructions and authorizations required by SGAML to perform its services under this Agreement. Client authorizes SGAML to rely and act upon any instruction, authorization, data or information, which appear to be given by an Authorized Person to SGAML by any means, including instructions transmitted by electronic means or otherwise, and the production of a facsimile of a document purporting to bear the authorization of Client. Client therefore agrees that: (i) SGAML is authorized to act upon instructions without enquiring as to the validity of the instructions and to consider the instructions of like force and effect as written orders made by the Authorized Persons; (ii) Nothing in this section and no verification or attempted verification of any instruction or signatures at any time made by SGAML will obligate SGAML to verify the validity of the instructions or the signatures in any particular case; and (iii) Client will bear the risk of all unauthorized instructions, by any of its representatives, employees, or agents, and where SGAML has acted in good faith and without negligence, Client will indemnify SGAML against and save SGAML harmless from all losses, costs, fees, damages, expenses, claims, suits, demands and liabilities whatsoever that SGAML may suffer or incur or that may be brought against SGAML, in any way relating to or arising out of SGAML acting upon, delaying in acting upon or refusing to act upon any instruction or information provided to SGAML by Client, including improper, unauthorized or fraudulent instructions given by any of Client’s employees, agents or representatives, even if such instructions were not in fact made with Client’s authority. SGAML has the right to set the limit in the number of total transactions for each order. SGAML retains the right to limit the amount and or total number of positions that Client may acquire or maintain at SGAML. SGAML will attempt to execute all orders in accordance with the computer or tele-recorded instructions of the Client. SGAML reserves the right to refuse to accept any order or guarantee a market in which to offset. SGAML shall not be responsible for any loss or damage caused, directly or indirectly, by any event, action or omission beyond the control of SGAML including, without limitation, loss or damage resulting, directly or indirectly, from any delays or inaccuracies in the transmission of orders and or information due to a breakdown in or failure of any transmission or communication facilities.
5. GOVERNMENTAL, COUNTERPARTY INSTITUTION AND INTERBANKING SYSTEM RULES
All transactions under this Agreement shall be subject to the constitution, by-laws, rules, regulations, customs, usage, rulings and interpretations of the counterparty institution or other interbank market (and its clearing organization, if any) where executed and to all applicable Hong Kong laws and regulations. If any statute shall hereafter be enacted or any rule or regulation shall hereafter be adopted which shall be binding upon SGAML and shall affect in any manner or be inconsistent with any of the provisions hereof, the affected provisions of this Agreement shall be deemed modified or superseded, as the case may be by the applicable provisions of such statute, rule or regulation, and all other provisions of this Agreement and provisions so modified shall in all respects continue in full force and effect. Client agrees that all transactions under this Agreement are subject to the aforementioned regulatory requirements.
6. CROSS TRADE CONSENT
Client hereby acknowledges and agrees that a situation may arise whereby an officer, director, affiliate, associate, employee, bank, bank employee or dealer associated with SGAML, or SGAML itself, may be the opposing principal or broker for a trade entered for Client's account. Client hereby consents to any such transaction, subject to the limitations and conditions, if any, contained in the Rules or Regulations of any bank, institution, exchange or board of trade upon which such buy or sell orders are executed, and subject to the limitations and conditions, if any, contained in any applicable Regulations of any other regulatory agency.
7. LIQUIDATION OF ACCOUNTS AND PAYMENT OF DEFICIT BALANCES
In the event of
(i) the death or judicial declaration of incompetence of Client;
(ii) the filing of a petition in bankruptcy, or a petition for the appointment of a receiver, or the institution of any insolvency or similar proceeding by or against Client;
(iii) the filing of an attachment against any of Client's accounts carried by SGAML,
(iv) insufficient margin, or SGAML's determination that any collateral deposited to protect one or more accounts of Client is inadequate, regardless of current market quotations, to secure the account;
(v) Client's failure to provide SGAML any information requested pursuant to this Agreement; or
(vi) any other circumstances or developments that SGAML deems appropriate for its protection, and in SGAML's sole discretion, it may take one or more, or any portion of, the following actions: (1) satisfy any obligation Client may have to SGAML, either directly or by way of guaranty of suretyship, out of any of Client's funds or property in its custody or control; (2) sell any or purchase any or all precious metal positions held or carried for Client; and (3) cancel any or all outstanding orders, or any other commitments made on behalf of Client. Any of the above actions may be taken without demand for margin or additional margin, without prior notice of sale or purchase or other notice to Client, Client's personal representatives, heirs, executors, administrators, trustees, legatees or assigns and regardless of whether the ownership interest shall be solely Client's or held jointly with others. In liquidation of Client's long or short positions, SGAML may, in its sole discretion, offset in the same settlement or it may initiate new long or short positions in order to establish a spread or straddle which in SGAML's sole judgment may be advisable to protect or reduce existing positions in Client's account. Any sales or purchases hereunder may be made according to SGAML's judgment and at its discretion with any interbank or other exchange market where such business is then usually transacted or at a public auction or private sale, and SGAML may purchase the whole or any part thereof free from any right of redemption. Client shall at all times be liable for the payment of any deficit balance of Client upon demand by SGAML and in all cases, Client shall be liable for any deficiency remaining in Client's account(s) in the event of the liquidation thereof in whole or in part by SGAML or by Client. In the event the proceeds realized pursuant to this authorization are insufficient for the payment of all liabilities of Client due to SGAML, Client shall promptly pay upon demand, the deficit and all unpaid liabilities, together with interest thereon equal to three (3) percentage points above the then prevailing prime rate at SGAML's principal bank or the maximum interest rate allowed by law, whichever is lower, and all costs of collection, including attorney's fees, witness fees, travel expenses and the like. In the event SGAML incurs expenses other than for the collection of deficits, with respect to any of the account(s) of Client, Client agrees to pay such expenses. To avoid doubt, SGAML shall have liberty at its absolute discretion to consolidate any accounts which being held in the name of Client and to apply any surplus balance to set off any debit balance between such accounts.
8. RISK ACKNOWLEDGEMENT
Client acknowledges that investments in leveraged and non-leveraged transactions are speculative, involves a high degree of risk, and is appropriate only for persons who can assume risk of loss in excess of their margin deposit. Client understands that because of the low margin normally required in “OTC precious metal markets” trading, price changes in “OTC precious metal markets” may result in significant losses that may substantially exceed Client's investment and margin deposit. Client warrants that Client is willing and able, financially and otherwise, to assume the risk of “OTC precious metal markets” trading. Client agrees to hold SGAML safe and harmless from losses incurred through following its trading recommendations or suggestions or those of its employees, agents or representatives. Client recognizes that guarantees of profit or freedom from loss are impossible of performance in “OTC precious metal markets” trading. Client acknowledges that Client has received no such guarantees from SGAML or from any of its representatives or any introducing agent or other entity with whom Client is conducting Client’s account and has not entered into this Agreement in consideration of or inreliance upon any such guarantees or similar representations.
9. PRECIOUS METAL PRICE FLUCTUATION RISK
If Client directs SGAML to enter into any precious metal transaction:
(a) any profit or loss arising as a result of a fluctuation in the price affecting such precious metal shall be borne entirely by Client;
(b) all initial and subsequent deposits for margin purposes shall be made in Hong Kong dollars, in such amounts as SGAML may in its sole discretion require; and
(c) SGAML is authorized to convert funds in Client's account for margin calls into and from such precious metal at a rate of exchange determined by SGAML in its sole discretion on the basis of the then prevailing precious metal market rates.
10. SGAMP RESPONSIBILITIES
SGAML shall not be responsible for delays in the transmission of orders due to a breakdown or failure of transmission or communication facilities, electrical power outage or for any other cause beyond SGAML's control or anticipation. SGAML shall only be liable for its actions directly attributable to negligence, willful default or fraud on the part of SGAML. SGAML shall not be liable for losses arising from the default of any agent or any other party used by SGAML under this Agreement.
11. STATEMENTS AND CONFIRMATION
Reports of the confirmation of orders and statements of accounts for Client shall be deemed correct and shall be conclusive and binding upon Client if not objected to in writing within (1) day after transmittal to Client by posting on the SGAML platform, or otherwise. Margin calls shall be conclusive and binding unless objected to immediately in writing. In lieu of sending trade confirmation via postal mail, SGAML will provide Client Internet access to view Client’s account at any time with an online login. Written objections on Client's part shall be directed to SGAML at the most recent office address as indicated on the SGAML website which may change from time to time, and shall be deemed received only if actually delivered or mailed by registered mail, return receipt requested. Failure to object shall be deemed ratification of all actions taken by SGAML or SGAML's agents. Client's failure to receive a trade confirmation shall not relieve Client of the obligation to object as set forth herein. Please see “Consent to Electronic Transmission of Confirmations and Account Statements”.
Reports, statements, notices and any other communications may be transmitted to Client via the email address on Client's application, SGAML Trading Station Platform, or to such other email address as Client may from time to time designate in writing to SGAML. All communications so sent, whether by mail, email, telegraph messenger or otherwise, shall be deemed transmitted by SGAML when electronically submitted or deposited in the relevant postal office, or when received by a transmitting agent, and deemed delivered to Client personally, whether actually received by Client or not.
Client shall pay such brokerage, commission and special service and all other charges (including, without limitation, markups and markdowns, statement charges, idle account charges, order cancellation charges, account transfer charges or other charges), fees (including, without limitation, fees imposed by any interbank agency, bank, contract markets or other regulatory or self-regulatory organizations) arising out of SGAML providing services hereunder. SGAML may change its commission, charges, and or fees without notice. Client agrees to be liable to SGAML for interest on amounts due from Client to SGAML at an interest rate equal to three (3) percentage points above the then prevailing prime rate at SGAML’s principal bank or the maximum interest rate allowed by law, whichever is lower. All such charges shall be paid by Client as they are incurred, or as SGAML in its sole and absolute discretion, may determine, and Client hereby authorizes SGAML to withdraw the amount of any such charges from Client's accounts(s). Client agrees to pay a transfer fee, to be designated by SGAML in the event Client instructs SGAML to transfer open positions, moneys, and or property of Client's account to another institution. SGAML and Client agree and confirm that all prices quoted to Client are not inclusive of markups and markdowns. Client shall be charged a premium or offered a discount on the precious metal contracts traded dependent on the precious metal traded and whether it is a buy or sell transaction. This premium or discount shall be adjusted periodically and Client is advised to review the amendments on-line. Client shall be personally responsible for any and all government duties, fees and taxes levied on the transactions or profits of Client’s trading activities. Client hereby consents to SGAML withholding or deducting such duties, fees or taxes if due, directly from Client’s account.
14. MARGIN DEPOSIT AND WITHDRAWAL ARRANGEMENTS.
Client shall provide to and maintain with SGAML margin in such amounts from time to time as and when it requires. Client is aware and acknowledges that the requirements for margin vary, and may be changed from time to time, at SGAML's sole discretion, based upon account size, volume traded, and market conditions. Such margin requirements may be greater or less than margins required by a counterparty. SGAML may change margin requirements at any time. Client agrees to deposit by immediate wire transfer such additional margin when and as required by SGAML and will promptly meet all margin requirement in such mode of transmission as SGAML designates. Client agrees to pay for the charges incurred during remittance or transfer, including bank commission, exchange rate differences and all other related expenses. Client is fully aware that some time is required for SGAML to process Client’s deposit; and Client may not be able to use the deposit immediately as margin required for new positions or as additional margin funds. Client may sustain a loss from forced liquidation for not meeting the margin requirement; the loss may be greater than the initial margin required. SGAML may at any time proceed to liquidate Client's account in accordance with this Agreement and any failure by SGAML to enforce its rights hereunder shall not be deemed a waiver by SGAML to enforce its rights thereafter. No previous margin requirement by SGAML shall preclude SGAML from increasing that requirement without prior notice. Client has the right to inform SGAML any time to withdraw a specified amount from the cash balance. Client agrees to pay for the charges incurred during remittance or transfer, including bank commission, exchange rate differences and all other related expenses. Client is fully aware that some time is required for SGAML to process Client’s withdrawal; and Client may not be able to receive the withdrawal immediately. Client agrees to hold SGAML safe and harmless from any and all liability resulting from the untimely execution of Client’s withdrawal request. Once the withdrawal request is confirmed, SGAML will deduct the amount from Client’s account balance.
15. JOINT ACCOUNTS
If more than one natural person executes this Agreement as Client, all such natural persons agree to be jointly and severally liable for the obligations assumed in this Agreement. On application, each Client shall sign on the identification document copy for the purpose of verification. On withdrawal of funds, information amendment or closing account, each Client has to sign on the form provided by SGAML. The form should be completed with all the details requested and faxed to SGAML. Forms can be downloaded from www.starlinggold.com.hk. Where the account is
held by more than one (1) person (hereinafter referred to as “joint account holder”) :
(a) The liability and obligations of each joint account holder shall be joint and several and reference to the Client shall be construed, as the context requires, to any or each of them;
(b) Each joint account holder singly has authority to deal in the account, including but not limited to executing trades pursuant to this Agreement, to receive all correspondence and documents in respect of the account;
(c) To receive or withdraw money from the account;
(d) To execute agreements relating to the account, and to deal with SGAML fully. SGAML has the authority to require joint action by the parties of the account in matters of the account. SGAML shall hold the account as security for the liabilities of all the joint account holders whether individually or jointly. If death occurs to one or more joint account holder, SGAML shall be notified in writing and shown proof of a death certificate. All expenses due at the date of notification shall be charged to the account. Each joint account holder is presumed to have an equal share.
16. NO WAIVER OR AMENDMENT
No provision of this Agreement may be waived or amended unless the waiver or amendment is in writing and signed by both Client and an authorized officer of SGAML. No waiver or amendment of this Agreement may be implied from any course of dealing between the parties or from any failure by SGAML or its agents to assert its rights under this Agreement on any occasion or series of occasions. No oral agreements or instructions to the contrary shall be recognized or enforceable.
This Agreement shall continue in effect until termination, and may be terminated by Client at any time when Client has no open precious metal position(s) and no liabilities held by or owed to SGAML upon the actual receipt by SGAML at its office of written notice of termination, or at any time by SGAML upon the transmittal of written notice of termination to Client; effective as of the close of business on the day notice is sent to Client. Such termination shall not affect any transactions previously entered into and shall not relieve either party of any obligations set out in this Agreement nor shall it relieve Client of any obligations arising out of any deficit balance.
Client agrees to indemnify and hold SGAML, its affiliates, employees, agents, successors and assigns harmless from and against any and all liabilities, losses, damages, costs and expenses, including attorney's fees, incurred by SGAML arising out of Client's failure to fully and timely perform Client's agreements herein or should any of the representations and warranties fail to be true and correct. Client also agrees to pay promptly to SGAML all damages, costs and expenses, including attorney's fees, incurred by SGAML in the enforcement of any of the provisions of this Agreement. Furthermore, SGAML shall NOT be held liable and is released from all claims and losses incurred in such regard if (and to the extent that) the claim or loss was caused or contributed to by (a) Client’s conduct: The actions or omission to act on the part of Client or Authorized Persons (b) forged signature: forged or unauthorized signatures on any document in connection with Client’s account or this Agreement; (c) Malfunctions: system malfunction, equipment failure (whether Client’s or SGAML’s equipment), system interruption or system
unavailability; (d) delay: delays, failure or errors in implementing any instruction; and (e) information: Inaccurate or incomplete instructions received by SGAML from Client.
19. TRADING RECOMMENDATIONS
Client acknowledges that (i) any market recommendations and information communicated to Client by SGAML or by any person within the company, does not constitute an offer to buy or sell, or a solicitation of an offer to buy or sell any “OTC precious metal markets” position, (ii) such recommendation and information, although based upon information obtained from sources believed by SGAML to be reliable, may be based solely on an opinion and that such information may be incomplete and may be unverified, and (iii) SGAML makes no representation, warranty or guarantee as to, and shall not be responsible for, the accuracy or completeness of any information or trading recommendation furnished to Client. Client acknowledges that SGAML and or its officers, directors, affiliates, associates, stockholders or representatives may have a position in or may intend to buy or sell precious metal, which are the subject of market recommendations furnished to Client, and that the market position of SGAML or any such officer, director, affiliate, associate, stockholder or representative may not be consistent with the recommendations furnished to Client by SGAML. Client acknowledges that SGAML makes no representations concerning the tax implications or treatment of trading precious metal.
20. CLIENT REPRESENTATIONS AND WARRANTIES
Client represents and warrants that:
i. Client is of sound mind, legal age and legal competence; and,
ii. No person other than Client and or Client’s joint account holder has or will have an interest in Client's account(s); and,
iii. Client hereby warrants that regardless of any subsequent determination to the contrary, save for subsection (i) herein, Client is competent to trade “OTC precious metal markets”.
iv. Client is not now an employee of any exchange, any corporation in which any exchange owns a majority of the capital stock, any member of any exchange and or firm registered on any exchange, or any bank, trust, or insurance company that trades the same instruments as those offered by SGAML, and in the event that Client becomes so employed, Client will promptly notify SGAML at its office in writing of such employment; and,
v. All the information provided in the information portion of this Agreement is true, correct and complete as of the date hereof and Client will notify SGAML promptly of any changes in such information; and
vi. Client has fully observed the laws of the relevant territory including the obtaining of any governmental or other consents which may be required for observing any other formalities needed to be observed in such territory or jurisdiction and to pay any taxes, duties and other amounts required to be paid in such territory or jurisdiction in connection with the execution of any trade through this platform. Further, the execution of any trade through this platform shall be deemed to constitute a representation and warranty from Client to SGAML that these local laws and requirements have been complied with. Should Client be in any doubt as to Client’s position, Client should consult Client’s professional advisers.
21. DISCLOSURE OF FINANCIAL INFORMATION
Client represents and warrants that the financial information disclosed to SGAML is an accurate representation of Client's current financial condition. Client further represents and warrants that in determining the Client's Net Worth, Assets and Liabilities were carefully calculated then Liabilities were subtracted from Assets to determine the value that the Client has included in the financial information as net worth. Client represents and warrants that in determining the value of Assets, Client included cash and or cash equivalents, Marketable securities, real estate owned (excluding primary residence), the cash value of life insurance and other valuable Assets. Client represents and warrants that in determining the value of Liabilities, Client included notes payable to banks (secured and unsecured), notes payable to relatives, real estate mortgages payable (excluding primary residence) and other debts. Client represents and warrants that in determining Client's Liquid Assets Client included only those Assets that can be quickly (within one day's time) converted to cash. Client represents and warrants that Client has very carefully considered the portion of Client's assets which Client considers to be risk capital. Client warrants and represents that risk capital is the amount of money Client is willing to put at risk and if lost would not, in any way, change Client's lifestyle. Client agrees to immediately inform SGAML if Client's financial condition changes in such a way to reduce Client's net worth, liquid assets and or risk capital.
22. NO GUARANTEES OF PROFITS OR LIMITED LOSSES
Client warrants and represents that Client has no separate agreement with Client's broker or any SGAML employee or agent regarding the trading in Client's SGAML account, including any agreement to guarantee profits or limit losses in Client's account. Client agrees that Client is under an obligation to notify SGAML immediately in writing as to any agreement of this type. Further, Client agrees that any representations made by anyone concerning Client's account that differ from any statements Client receives from SGAML must be brought to the attention of SGAML immediately in writing. Client understands that Client must authorize every transaction prior to its execution unless Client has delegated authority to another party by signing SGAML's limited power of attorney (LPOA), and any disputed transactions must be brought to the attention of SGAML pursuant to the notice requirements of this Agreement. Client agrees to indemnify and hold SGAML harmless from all damages or liability resulting form Client's failure to immediately notify SGAML of any of the occurrences referred to herein. All notices required under this clause shall be sent to SGAML at its office.
23. CREDIT REPORTS
Client authorizes SGAML or agents acting on behalf of SGAML to investigate Client's credit standing and in connection therewith to contact such banks, financial institutions and credit agencies as SGAML shall deem appropriate to verify information regarding Client. Client further authorizes SGAML to investigate Client's current and past investment activity, and in connection therewith, to contact such futures commission merchants, exchanges, broker dealers, banks, and compliance data centers as SGAML shall deem appropriate. Upon request made in writing by Client to SGAML, Client shall be allowed to review any records maintained by SGAML relating to Client's credit standing. Client shall also be allowed, at Client's sole cost and expense, to copy such records.
Client agrees and acknowledges that all conversations regarding Client's account(s) between Client and SGAML personnel may be electronically recorded with or without the use of an automatic tone-warning device. Client further agrees to the use of such recordings and transcripts thereof as evidence by either party in connection with any dispute or proceeding that may arise involving Client or SGAML. Client understands that SGAML deletes such recordings at regular intervals in accordance with SGAML's established business procedures and Client hereby consents to such deletion.
25. CONSENT TO JURISDICTION AND VENUE.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules at the date any such arbitration commences. The appointing authority shall be the Hong Kong International Arbitration Centre (“HKIAC”). There shall be only one arbitrator and the venue for arbitration shall be in Hong Kong at HKIAC. Any such arbitration shall be administered by HKIAC in accordance with HKIAC arbitration procedures in force at the date arbitration commences. English shall be used in the arbitral proceedings.
26. AMENDMENTS TO THE AGREEMENT
Client understands, acknowledges and agrees that SGAML may amend or change the terms of this Agreement from time to time. SGAML will provide notice to Client of any such amendment or change by posting same on SGAML’s website, www.starlinggold.com.hk. Client shall be responsible for regularly reviewing these terms and conditions for any modifications and agrees to be bound by same.
27. SETTLEMENT DATE AND ROLLOVERS
All precious metal positions will be posted to Client's account in US Dollars on the trade date and settled within 48 hours. The settlement currency is Hong Kong Dollars. The resulting position will automatically rollover for an additional 48 hour period unless (i) Client gives satisfactory instructions for further delivery of the precious metal subject to SGAML's usual and customary charges and re-delivery fees; or (ii) Client enters an order which is accepted by SGAML in its sole discretion to offset the precious metal position. Client, by noon of the business day before the settlement date of the precious metal position, shall provide SGAML with acceptable re-delivery or offset instructions. In the absence of timely and adequate instructions from Client, SGAML is authorized, at SGAML's absolute discretion, to rollover the precious metal positions in the “OTC precious metal markets” account(s) for Client's account(s) and at Client's risk. A position may be credited or debited interest charges until the position is closed.
28. COLLATERAL AGREEMENT
All funds, currencies, and other property of Client which SGAML or its affiliates may at any time be carrying for Client (either individually, jointly with another, or as a guarantor of the account of any other person,) or which may at any time be in its possession or control or carried on its books for any purpose, including safekeeping, are to be held by SGAML as security and subject to a general lien and right of set-off for liabilities of Client to SGAML whether or not SGAML has made advances in connection with such funds, currencies or other property, and irrespective of the number of accounts Client may have with SGAML. SGAML may at its discretion, at any time and from time to time, without notice to Client, apply and or transfer any or all funds, currencies or other property of Client between any of Client's accounts. Client hereby also grants to SGAML the right to pledge, re-pledge, hypothecate, invest or loan, either separately or with the property of other Clients, to itself or to others, any securities or other property of Client held by SGAML as margin or security. SGAML shall at no time be required to deliver to Client the identical property delivered to or purchased by SGAML for any account of Client. The purpose of this Agreement is to enable SGAML to use the currencies, property and depository receipts as collateral. This authorization applies to all accounts SGAML opens for Client. It remains effective until Client reimburses all arrears or SGAML issues cancellation instructions from its office.
29. ASSIGNMENT OF RIGHTS
SGAML may assign all or a part only of its rights and obligations under this Agreement to any person without the prior consent or approval of the Client.
30. HIGH RISK INVESTMENT NOTICE
In addition to standard industry disclosures contained in this Agreement, Client should be aware that margined “OTC precious metal markets” OTGOLD trading is one of the riskiest forms of investment available in the financial markets and is only suitable for sophisticated investors and institutions. An account with SGAML permits you to trade precious metal on a highly leveraged basis (up to approximately 100 times your account equity or as amended by SGAML from time to time or as otherwise permitted by applicable regulation). Given the possibility of losing an entire investment, speculation in the precious metal market should only be conducted with risk capital that if lost will not significantly affect Client’s personal or institutional financial well being. If Client has pursued only conservative forms of investment in the past, Client may wish to study precious metal trading further before continuing an investment of this nature. Client must realize that Client could sustain a total loss of all funds Client deposits with SGAML as initial margin as well as substantial amounts of capital, when trading precious metal, should the market go against Client’s investment. If Client wishes to continue with Client’s investment, Client acknowledges that the funds Client has committed are purely risk capital and loss of Client’s investment will not jeopardize Client’s style of living nor will it detract from Client’s future retirement program. Additionally, Client fully understands the nature and risks of precious metal investments, and Client’s obligations to others will not be neglected should Client suffers investment losses.
31. EMAIL ACKNOWLEDGEMENT
Client acknowledges that it is Client's obligation to immediately notify SGAML if there is a change in Client's electronic mail address, or other location to which the electronic records may be provided.
32. ADDRESS ACKNOWLEDGEMENT
Client acknowledges that it is Client's obligation to notify SGAML of any changes of correspondence address.
33. AUTHORIZATION TO TRANSFER FUNDS
Client hereby agrees that SGAML may at any time, in the judgment of SGAML and its associates, apply and transfer from Client's account to any of Client's other accounts held with SGAML or an affiliate of SGAML or other approved financial institution or its associates any of the moneys, currencies or other property of Client held either individually or jointly with others to another regulated account of the same said Client.
34. CONSENT TO ELECTRONIC TRANSMISSION OF CONFIRMATIONS AND ACCOUNT STATEMENTS
Client hereby consents to have Client's account information and trade confirmations available on the SGAML platform in lieu of having such information delivered to Client via mail or email. Client will be able to access account information via the SGAML platform using Client's account login information to access the account. SGAML will post all of Client's account activity and Client will be able to generate daily, monthly and yearly reports of account activity as well as a report of each executed trade. Updated account information will be available no longer than twenty-four hours after any activity takes place on Client's account. Posting of account information on Client's online account will be deemed delivery of confirmation and account statements. At all times, account information will include trade confirmations with ticket numbers, purchase and sale rates, used margin, amount available for margin trading, statements of profits and losses, as well as all positions and pending order instructions. Client may revoke this consent at any time upon written notice to SGAML.
• Information provided on SGAML application and other forms, such as name, address, and date of birth, occupation, assets, and income.
• Information about Client’s transactions with SGAML and its affiliates.
• Information received from consumer reporting agencies.
36. ARBITRATION AGREEMENT
Any controversy between Client and SGAML, arising out of or relating to Client’s account shall be, resolved by arbitration in accordance with Section 25 in the Client Agreement. Any award rendered in such arbitration shall be final and binding on and enforceable in accordance with the laws of any court having jurisdiction. By agreeing to this arbitration clause, Client (1) Is waiving Client’s rights to sue in a court of law; and (2) are agreeing to be bound by arbitration of any claims or counterclaims that Client or SGAML may submit to arbitration under this Arbitration Agreement. Clients who do not elect to be bound by this arbitration clause are out precluded from opening an account with SGAML.
37. GOVERNING LAW AND JURISDICTION.
This Agreement, and the rights and obligations of the parties hereto, shall be governed by, construed and enforced in all respects by the laws of Hong Kong Special Administrative Region where SGAML is incorporated, without giving effect to any conflict of laws doctrine that would interfere with or prevent the application of this provision.
This Agreement together with the Client Account Application and the attachments herewith, constitute the whole and entire Agreement of the Parties with respect to leveraged spot precious metal trading only. This Agreement replaces and supersedes all prior written and oral Agreements to which the Parties are signatory relating to the subject matter, leveraged spot precious metal trading, of this Agreement. In the event of any inconsistency between the English and Chinese version, the English version shall prevail.
I HEREBY ACKNOWLEDGE THAT I HAVE RECEIVED AND UNDERSTOOD THIS RISK DISCLOSURE STATEMENT.