Common use of Client’s Instructions Clause in Contracts

Client’s Instructions. 3.1 Client may from time to time instruct CES Capital (HK) to enter into or close out any Futures Contract and/or Options Contract on behalf of Client and CES Capital (HK) shall be entitled in its absolute discretion, but not bound, to accept such instruction. All instructions shall be made by Client orally either in person or by telephone, or in writing, delivered by post, by hand or transmitted by facsimile or through Electronic Media (applicable to Account with Electronic Trading Service) at Client's risk. Any such instruction shall not be effective unless it is confirmed by CES Capital (HK) orally or in writing. Any such instruction shall be transmitted at the risk of Client. Unless Client expressly notifies CES Capital (HK) to the contrary in writing, CES Capital (HK) may assume that Client is acting as principal and not as agent for others. 3.2 If Client is acting on behalf of any other person when instructing CES Capital (HK) pursuant to this Agreement, CES Capital (HK) will continue to treat Client alone (rather than any such other person) as its customer for all purposes and in relation to all obligations, and Client will be liable as such. This applies even if Client is acting on behalf of a person whom Client has notified to CES Capital (HK) and no such person will be an “indirect customer”. CES Capital (HK) shall have no responsibility for compliance by Client with any law or regulation governing Client’s conduct as a fiduciary, if applicable. 3.3 It is expressly understood that unless otherwise disclosed herein or to Client in writing, CES Capital (HK) is acting solely as broker as to any transactions made with CES Capital (HK) by Client. 3.4 Client understands that all instructions related to his Account are only effective within the trading day on which the instructions are made and will become ineffective at the close of the related markets unless otherwise agreed by CES Capital (HK). Client should fully understand and be willing to undertake the relevant risk before giving instructions with validity period other than a trading day. 3.5 In addition, in the event of receipt of conflicting instructions, CES Capital (HK) may refuse to act on any of such instructions until CES Capital (HK) receives unequivocal instruction(s). 3.6 Without prejudice to the foregoing, CES Capital (HK) may use voice recording procedures in connection with communications with Client and/or his/its authorized representative(s) and any recorded voice will constitute conclusive evidence of the instructions or conversations so recorded. All relevant tapes or recordings and the contents thereof shall be the sole property of CES Capital (HK), who shall have the absolute right to listen and copy the same or permit/authorize the listening and copying of the same. 3.7 Client may give instructions through an electronic trading system. However, Client should fully understand and undertake the risk associated with the electronic trading system from which possible loss may arise. Client should read the Schedule III “The E-SERVICE RULES” carefully and bound to the rules within. 3.8 Client acknowledges that it may not be possible to cancel or amend its instructions once given. Client agrees to exercise caution before giving any instruction and accept full responsibility for the Transactions partially or fully executed prior to the processing of Client’s cancellation or amendment. 3.9 CES Capital (HK) shall be entitled to rely upon and to act as it thinks fit as a consequence of and in connection with any instruction that is given by Client in the manner specified in Clause 3.1 above and may treat the same as fully authorized by and binding on Client regardless of the circumstances prevailing at the time of the instruction or communication or amount of the transaction and notwithstanding any error, misunderstanding, lack of clarity, fraud, forgery or lack of authority in relation thereto (save if the same is caused by the gross negligence, wilful default or fraud of CES Capital (HK)), and without requiring further confirmation in any form, provided that CES Capital (HK) believed the instruction to be genuine at the time it was given. Client shall keep CES Capital (HK) and its directors, officers, employees, agents and correspondents indemnified against all claims, demands, actions, proceedings, damages, losses, costs and expenses incurred by CES Capital (HK) or any of them arising out of anything done or omitted pursuant to any instruction or communication as aforesaid. 3.10 CES Capital (HK) may, for the purpose of carrying out any instruction given by Client, contract with or otherwise deal with or through any other agent, including any person or party associated in any manner with CES Capital (HK) or any Affiliate of CES Capital (HK), on such terms and conditions as CES Capital (HK) may in its absolute discretion determine. CES Capital (HK) or any Affiliate of CES Capital (HK) may be the counterparty to any transaction effected by CES Capital (HK) on Client’s behalf. 3.11 Client authorizes CES Capital (HK) to instruct overseas brokers and dealers to execute transactions in overseas securities in such terms and at such times as in CES Capital (HK)’s discretion deems fit and acknowledges that the terms of business of such overseas brokers and dealers shall apply to such transactions and Client agrees to be bound by such terms. 3.12 All instructions relating to purchase or sale of Commodities or otherwise given hereunder which may be executed on more than one Exchange may be executed on any Exchange CES Capital (HK) selects. 3.13 Client hereby acknowledges that CES Capital (HK) and any Affiliate of CES Capital (HK) and their directors, employees and/or their associates may from time to time trade on their own accounts. Furthermore, Client acknowledges the existence of CES Capital (HK)’s interest, relationship or arrangement that is material in relation to any instruction received or Transaction effected for Client. In particular, CES Capital (HK) may, without informing the client: 3.13.1 effect Transactions through any Affiliate of CES Capital (HK); 3.13.2 effect Transactions with Client as principal for account of CES Capital (HK) and its related parties including but not limited to any Affiliate of CES Capital (HK) or its employees, or directors; 3.13.3 take position opposite to the order of Client either for its own account or others provided that the trading is executed competitively on or through the facilities of the Exchange in accordance with the Regulatory Rules; 3.13.4 match Client’s orders with those of other clients of CES Capital (HK); and/or 3.13.5 combine Client’s order with orders of CES Capital (HK) or of any Affiliate of CES Capital (HK) or other clients of CES Capital (HK) for execution, and neither CES Capital (HK) nor its related parties shall be obliged to account to Client or any third party for any profits or benefits received in connection therewith. In event of insufficient Commodities to satisfy orders so combined as mentioned in the above paragraph 3.13.5, CES Capital (HK) may in its absolute discretion allocate the transactions between clients, CES Capital (HK) and any Affiliate of CES Capital (HK), having due regard to market practice and fairness to the concerned clients. Client acknowledges and accepts that such combination and/or allocation may on some occasions operate to Client’s advantages and on other occasions to Client’s disadvantages. 3.14 CES Capital (HK) shall be authorized but not bound to act on an instruction given by Client or the Authorized Person (if any) to carry out a Transaction (whether directly or through other dealer or otherwise). CES Capital (HK) may at any time and from time to time impose any limits including position limits on any Account and Client agrees not to exceed such limits. If any of the said limits are or will be exceeded or there is insufficient cleared funds in the Account for meeting initial Margin requirement or otherwise, CES Capital (HK) may decline such an instruction and/or is entitled to close the open position of the Transactions concerned. CES Capital (HK) may in its absolute discretion refuse to act on any of the instructions received from Client without giving any reason and/or is entitled to close the open position of the Transactions concerned. CES Capital (HK) is not in any circumstances be liable in any way for any loss of profit or gain, damage, liability or cost or expense suffered or incurred by Client arising from or in connection with CES Capital (HK)’s refusal to act on such instruction or omitting to notify Client of such refusal or taking action to close the open position. Except as directed by Client in circumstances where Client is not in default hereunder and no Event of Default has occurred, CES Capital (HK) shall have no obligation to close out any Futures/Options Contract. 3.15 If CES Capital (HK) or its agent is not able to enter into the number of Futures Contracts or Options Contracts which are specified in any such instruction, CES Capital (HK) or its agent may enter into any lesser number of such contracts as it may in its absolute discretion determine and Client shall be bound by such contracts so entered into provide that CES Capital (HK) or its agent (as the case may be) shall not have any obligation or liability whatsoever and howsoever in respect of any Futures Contracts or Options Contracts specified in such instruction which have not been entered into. 3.16 If any relevant exchange and/or Clearing House and/or agent on or through whom any Futures Contract or Options Contract has been entered into by CES Capital (HK) on behalf of Client requires any alteration in any terms or conditions of any such contract, CES Capital (HK) may take all such action as it may in its absolute discretion consider necessary or desirable to comply therewith or as a result thereof or to avoid or mitigate loss thereunder and all such action shall be binding upon Client. 3.17 Because of physical restraints on any Exchange or the very rapid changes in the prices of Commodities that frequently take place, there may, on occasions, be a delay in making prices or in dealing. CES Capital (HK) may not always be able to trade at the prices or rates quoted at any specific time or "at best" or "at market". CES Capital (HK) shall not be liable for any loss howsoever arising by reason of its failing, or being unable, to comply with the terms of any limit order undertaken on behalf of Client or under the circumstances contemplated in this Clause. Where CES Capital (HK) is for any reason whatsoever unable to perform Client's order in full, it may in its discretion effect partial performance only. Client shall in any event accept and be bound by the outcome when any request to execute orders is made. 3.18 CES Capital (HK) may at any time without prior notice in its absolute discretion take such steps as it may consider necessary or desirable to comply with or perform, cancel or satisfy any obligations of CES Capital (HK) to the relevant Exchange, Clearing House and/or dealer in respect of Futures/Options Contracts acquired on the instructions of Client, including closing out, entering into any Transactions for hedging the current position, and/or performing any and all such Open Contracts, and may for such purpose: 3.18.1 buy or sell (in any manner howsoever and including from itself) the Commodity underlying any Open Contract; and/or 3.18.2 borrow, buy or sell any currency; and/or 3.18.3 apply any Margin in each case so that all sums expended by CES Capital (HK) in excess of any sums held by CES Capital (HK) on Client's behalf shall be paid by Client to CES Capital (HK) forthwith on demand. 3.19 Subject to the applicable laws and regulations, CES Capital (HK) may in its absolute discretion determine the priority in the executions of the orders received from its clients, having due regard to the sequence in which such orders were received and Client shall not have any claim of priority to another client in relation to the execution of any orders received by CES Capital (HK). 3.20 Nothing herein shall place CES Capital (HK) under any duty to disclose to Client any information which may come to the notice of CES Capital (HK) in the course of acting in any capacity for any other person, nor shall CES Capital (HK) be under any obligation to Client to see that any information pertaining to any Futures/Options Contract acquired by CES Capital (HK) be given either before or at the same time as such information is made available to other client. However, CES Capital (HK) shall take all reasonable steps to avoid conflicts of interest and where such conflicts cannot reasonably be avoided take all reasonable steps to ensure that clients are at all times treated fairly.