Intellectual Property Rights
The Customer acknowledges that the Electronic Service, and the software comprised in it, is proprietary to CMSHK. The Customer warrants and undertakes that it shall
not and shall not attempt to tamper with, modify, decompile, reverse engineer or otherwise alter in any way, and shall not attempt to gain unauthorised access to, any part
of the Electronic Service or any of the software comprised in it. The Customer agrees that CMSHK shall be entitled to terminate the availability of Electronic Service to the
Customer if at any time the Customer breaches, or if CMSHK at any time reasonably suspects that the Customer has breached this warranty and undertaking.
The Customer acknowledges that the Information or market data made available to it through the Electronic Service may be proprietary to third parties and the Customer
agrees that it will not upload, post, reproduce or distribute any information, software or other material protected by copyright or other intellectual property right (as well as
rights of publicity and privacy) without first obtaining the permission of the owner of such rights.
Limitation of Liability and Indemnification
To the extent permitted by applicable law, none of CMSHK, its Correspondent Agents and the Information Providers shall be responsible for any losses, costs, expenses
or liabilities suffered by the Customer resulting from circumstances beyond its/their reasonable control including, without limitation:
delays, failure or inaccuracies in communications to or from CMSHK through telephone, electronic or other systems that are not under the control of CMSHK, its
Correspondent Agents or Information Providers;
delays, inaccuracies or omissions in or unavailability of research, analysis, market data and other Information prepared by third parties;
unauthorised access to communications systems, including unauthorized use of the Customer’s Login ID and/or Password; and
wars of military action, government restrictions, labour disputes or closure of or disruption to orderly trading on any market or exchange, severe weather
conditions and acts of God.
The Customer agrees to defend, indemnify and hold CMSHK, its Correspondent Agents and the Information Providers harmless from and against any and all claims,
costs and expenses (including but not limited to attorneys’ fees) arising from the Customer’s violation of these terms and co
nditions, applicable laws,
rules or regulations, or any third party’s rights, including but not limited
to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights.
This obligation will survive the termination of Electronic Service to the Customer.
CMSHK shall not by virtue of provision of Electronic Service be deemed to provide investment advice to manage money or to act as a fiduciary on behalf of the Customer
or with respect to any account.
CMSHK is not responsible for advising the Customer of any disclosure obligations whether arising generally or as a result of any transaction effected by CMSHK in
accordance with any Instruction or of any holding of Securities by or on behalf of the Customer. Such obligations of disclosure are personal obligations of the Customer.
CMSHK shall not be obliged to give notice of holdings by or on behalf of the Customer in any form or by any time limit save for any notice or statement required to be
issued by CMSHK pursuant to legal and/or regulatory requirements.
The Customer acknowledges that it will be subject to potential prosecution under applicable laws for illegal activities conducted through the Electronic Service and that
CMSHK, the regulatory authorities and/or SROs may monitor all customer activities so as to detect any improper activity relating t
o customers’ transactions or business
effected based on any Instruction and the Customer shall permit (subject to reasonable confidentiality restrictions) CMSHK and any relevant regulatory authorities
and/or SROs to have reasonable access to CMSHK
s premises at reasonable times and on reasonable notice to inspect any equipment and connections used by the
Customer in connection with any Instruction. The Customer acknowledges that if CMSHK, any regulatory authority or any SRO detects or suspects improper activity (or
any activity harmful to the integrity of the markets) through the Customer’s use of Electronic Service or if required by a
ny applicable legal and/or regulatory requirement
s internal rules or policies, or if CMSHK deems it necessary for its protection, or if CMSHK regards the Customer to have materially breached these terms and
conditions or any terms and conditions
relevant to the transaction covered by an Instruction, the Customer’s access to the Electronic Services may be limited,
augmented, or terminated at any time, and the Customer may be prohibited from giving Instructions or otherwise accessing the market.
To the extent permitted by applicable law, no warranties, express or implied, representations or promises, have been made or are given by CMSHK, its Associates, their
respective directors, officers, employees and agents and/or any of their vendors, licens
ors or other third party content providers (collectively, “
individually, a “
”) to the Customer or any other person regarding or related in any manner to the systems, equipment or market data used in or
connection with the Electronic Service.
To the extent permitted by applicable law, the Provider Parties shall not be liable for any delay or failure to perform obligations and any losses, damages or costs resulting
therefrom unless such is directly caused by the Prov
ider Parties’ gross negligence or wilful default or fraud.
To the extent permitted by applicable law, the Provider Parties shall not be held responsible for any undesirable consequences resulting whether directly or indirectly
from any uncontrollable events including but not limited to government restrictions, imposition of emergency procedures, exchange ruling, third party conduct,
suspension of trading, war, strike, market conditions, civil disorder, acts or threatened acts of terrorism, natural disasters, or any other circumstances beyond the
Provider Parties’ control whatsoever, including any errors, deficiencies or electronic data problems, computations, output, o
perations and other functions of any
equipment and related software of Provider Parties.
To the maximum extent permitted by applicable law, in no event shall any Provider Party have any liability to the Customer or any third party for any losses, damages,
liabilities, judgments, awards, fines, penalties, settlements, costs or other expenses (including reasonable legal costs, attorneys' fees and disbursements) (collectively,
”) whatsoever arising in any manner out of, or in connection with, these terms and conditions, their performance or breach, o
r incident to the Customer's or any
third party's use of (or any inability to use) the systems, the equipment or any market data in connection with the Electronic Service.
To the extent permitted by applicable law, no Provider Party shall be liable to the Customer for:
(a) any error by the Customer in inputting an order,
(b) any error occurring on a market exchange or other execution venue,
(c) the rejection of any order by the systems used in connection with the Electronic Service for any reason whatsoever; or
(d) any error by any other cause outside the direct control of any Provider Party.
The Customer acknowledges that for the market data or other information the Customer obtains through the Electronic Service which is originated from any exchange,
such exchanges, their holding companies, affiliates and/or subsidiaries do not guarantee the accuracy or reliability of such market data or information and will accept no
liability to the Customer (whether in tort or contract or otherwise) for any loss or damage arising from any inaccuracies or omissions in connection with such market data
The Customer shall, at its own expense, defend, indemnify and hold harmless any Provider Party and CMSHK from and against any Losses arising out of or related to
(a) the use of (or inability to use) the systems, equipment, market data or any other information in connection with the Electronic Service by or with the authority of the
Customer or involving the use of the Customer’s Login ID, Password(s) and/or
answers to the security questions before the making of any report to CMSHK under
Clause 2.2(e) or Clause 2.14; and
(b) any material breach by the Customer of any provision of these terms and conditions,
except in each case to the extent such Losses are due to wilful misconduct gross negligence or fraud of any Provider Party or CMSHK.