This is a subscription to Post Trade Servicesprovided by Bursa Malaysia Depository (“Bursa Depository”)for trades executed on participating ASEAN Exchangesother than Bursa Malaysia Securities Bhd and is subject to the ASEAN Post Trade Services Terms and Conditions (“Subscription”).
WARRANTY
I hereby represent and warrant on behalf of the undersigned entity (“Originating Broker”) that I have read and agree to be bound bythe ASEAN Post Trade Services Terms and Conditions, as attached to this Subscription form. Furthermore, I hereby represent and warrant that I possess the requisite authority and legal capacity to execute this Subscription form for and on behalf of the Originating Broker, that all information provided herein is true and correct, and that the Originating Broker is not prohibited by law or regulation from subscribing to BursaDepository for Post Trade Services. Having read, understood, and relied upon the provisions of the foregoing, I unconditionally and irrevocably accept such provisions on behalf of the undersigned Originating Broker.
ORIGINATING BROKER (if any): / NAME, DESIGNATIONand SIGNATURE OF AUTHORIZED PERSON:
Date:
COMPLETE PRINCIPAL OFFICE ADDRESS:
TELEPHONE NO.: / FAX No.: / COMPANY REGISTRATION NUMBER:
primary email: / alternate email:
eFFECTIVE DATE OF SUBSCRIPTION:
ASEAN Post Trade Services Terms and Conditions (“Terms and Conditions”)
- Definitions
“ASEAN Exchange” meansany stock exchangeincorporated under the laws of an ASEAN Jurisdiction and which is connected to the ASEAN Link Gateway.
“ASEAN Jurisdictions” means the countries of Indonesia, Malaysia, Philippines, Singapore, Thailand and Vietnam being member states of the Association of South East Asian Nations.
“ASEAN Link Gateway” means the infrastructure to facilitate the trading of securities listed on the ASEAN Exchanges.
“Clearing Participant” means a legal entity admitted as a Clearing Participant under the Rules of Bursa Malaysia Securities Clearing Sdn Bhd.
“Custody System” means a web based system provided by Bursa Depository through its service provider that allows the Originating Broker to have a real time view access on its foreign security holdings and to receive all other communications related to its foreign securities holdings.
“Effective Date” means the Effective Date of Subscription stated on the Subscription form.
“Executing Clearing House” means the clearing house in the ASEAN Jurisdiction where an Outbound Trade is to be cleared under this Subscription;
“Executing Depository” means the depository in the ASEAN Jurisdiction where an Outbound Trade is to be settled under this Subscription;
“Executing Exchange”means the ASEAN Exchange in the jurisdiction in which the Outbound Trade is executed.
“Operational Guide” means the guidelines and procedures issued by Bursa Depository in relation to Post Trade Serviceswhich may be amended from time to time.
“Originating Broker” means a legal entityadmitted as a Participating Organisation.
“Outbound Trades” means trades to buy or sell securities listed on ASEAN Exchanges other than Bursa Malaysia Securities Berhad.
“Participating Organisation” means a legal entity admitted as a Participating Organisation under the Rules of Bursa Malaysia Securities Berhad.
“Post Trade Services”means the services offered by Bursa Depository to facilitate settlement of Outbound Trades and the provision of custodian servicesand other services as providedin Schedule 1.
“Rules” meansthe applicable laws in the relevant ASEAN Jurisdictions andthe rules, regulations, terms, conditions and policies imposed by the relevant authorities, Executing Clearing Houses and Executing Depository/ies on which the Outbound Trades will be cleared and maintained including without limitation, those relating to/impacting Post Trade Services as well as the relevant laws of Malaysia andthe rules, regulations, terms, conditions and policies imposed by the relevant authorities in Malaysia as well as the rules or requirements imposed by Bursa Malaysia and its subsidiaries, where applicable.
“Sponsoring Broker” means the broker registered or licenced as a trading participant in the jurisdiction in which the Outbound Trade is executed, and which acts on behalf of the Originating Broker in relation to the execution of the said Outbound Trade.
“Technical Guide”means the guidelines and procedures issued by Bursa Depository in relation to the technical requirements related to Post Trade Services which may be amended from time to time.
- Applicability of and Compliance with these Terms and Conditions, the Operational Guide, andTechnical Guide.The Originating Broker shall comply with the Terms and Conditions herein as well as the Operational Guide, Technical Guide and any other relevant directions issued by Bursa Depository in respect of the Post Trade Services pursuant to this Subscription.
- Amendment of Terms and Conditions, the Operational Guide and Technical Guide.These Terms and Conditions, the Operational Guide, Technical Guide and any other relevant directions issued by Bursa Depository in respect of the Post Trade Services may be amended by Bursa Depository at any time, at its sole and exclusive discretion, provided that the Originating Broker shall be notified of such amendment prior to the intended effective date.
- Collateral. An Originating Broker must where required by Bursa Depository, provide in the manner and to the party as may be specified by Bursa Depository, contributions to any fund that may be set up for the purpose of or in connection with settlement of Outbound Trades in the event of a payment or delivery default by the Originating Broker, and other collateral as may be required from the Originating Broker upon Subscription or from time to time during the Subscription period.
- Originating Broker’s Obligations.The Originating Broker agrees:
(i) to execute and/or deliver such documents, open such accounts and perform such further acts,within the timeframes as Bursa Depository may require, in relation to this Subscription;
(ii)toexecute a power of attorney in the form prescribed by Bursa Depositorywhere necessary for a purpose incidental to the Subscription or to give effect to any right or power under the Subscription;
(iii) that it shall not use the Post Trade Services to perform any acts or transactions that violate or are adverse to, or to otherwise circumvent, any of the Rules; and
(iv) that it fully understands and shall comply withthese Terms and Conditions, the Operational Guide, Technical Guide and other relevant directionsissued by Bursa Depository in respect of the Post Trade Servicesand withany additions, amendments or revisions that Bursa Depository may hereinafter impose, for the duration of its participation in relation to Post Trade Services.
Without in any way limiting the generality of the foregoing, the Originating Broker acknowledges that:
(i) it shall be responsible to its client (in respect of its client’s Outbound Trades) and Sponsoring Broker for all Outbound Trades;
(ii)it shall not be deemed a clearing participant of the Executing Clearing House and has no personality in the latter; and
(iii) it is responsible for conducting all required know your client (KYC) and client acceptance procedures in respect of its client.
- Payments.
The Originating Broker shall make the payments (inclusive of value added tax or goods and services tax where applicable by law and/or regulation), in compliance with the fee structure set out in Schedule 2.
All payments to Bursa Depository shall be paid within the timeframe prescribed by Bursa Depository. Bursa Depository shall charge the Originating Broker late payment charges of 8% per annum on all sums outstanding.
For avoidance of doubt, all out of pocket expenses and any other expenses including but not limited to bank charges, stamp duty, notarisation fee, fees imposed at the Executing Depository, Executing Clearing House or Executing Exchange shall be borne by the Originating Broker.
- Representations and Warranties by the Originating Broker.The Originating Broker represents and warrants to Bursa Depository that:
(i)it has and will continue to have full capacity and authority to enter into this Subscription and to carry out the transactions contemplated herein and has taken and will continue to take all action (including obtaining all necessary corporate approvals and governmental consents, where applicable) to authorise the execution, delivery and performance of the obligations under this Subscription;
(ii)it shall use such standard of care as may be expected of a prudent professional in the performance of its duties under this Subscription;
(iii)the terms of this Subscription do not constitute a breach of any obligation by which it is bound, whether arising from its constitutional documents, any contract or operation of law;
(iv)the obligations under this Subscription constitute its legal, valid and binding obligations and are enforceable against it;
(v)the terms of this Subscription shall prevail if there are conflicts in any other arrangements that the Originating Brokerhas entered into;
(vi)it shall notify Bursa Depository of any changes in details supplied to Bursa Depository at the time of Subscription or during the period of this Subscription;
(vii)there are no restrictions imposed upon it by any regulatory authority to which it is subject or by any government authority, department or other government body, the courts or tribunals, or any competent authority which may affect its participation in Post Trade Services;
(viii)it is able to pay its debts when they fall due, it is not insolvent, nor has a receiver and/or manager been appointed over it or any part of its undertaking or assets,nor has it passed a resolution for winding-up or bankruptcy (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), nor has a petition or other action been filed in a court of competent jurisdiction for its winding-up, bankruptcy or judicial management, nor has it entered into any composition or arrangement with its creditors or ceased or threatened to cease to carry on business;
(ix) no distress, execution or other process has been levied or enforced or served upon or against any property or assets of the Originating Broker and is still outstanding at the time of this Subscription; and
(x)it shall notify Bursa Depository forthwith of any defaults in its obligations under this Subscription or of any breaches of any of the representations and warranties contained in this clause or of any other changes in its circumstances which may affect or is material to its participation in the Post Trade Services.
The above representations and warranties are deemed continuing representations and warranties by the Originating Broker so long as this Subscription subsists.
- Instructions.
Transactions not requiring instructions:In the absence of contrary instructions and so long as Bursa Depository is prepared to do so, Bursa Depository and/or its service provider or agent is authorised by the Originating Broker to carry out administrative acts and transactions at Bursa Depository’s discretion or, if applicable, in accordance with agreed procedures relating to the Outbound Trade without requiring further instructions from the Originating Broker. This includes but is not limited to:
(i)completing and signing any affidavits, certificates of ownership or other certificates relating to the Outbound Trade in connection with Bursa Depository’s duties under this Subscription which may be required by the tax or any other regulatory authority; and
(ii)to making cash disbursements or payments for any fees, taxes, duties, levies, expenses and/or any payments incurred in connection with Bursa Depository’s duties under this Subscription.
Transactions requiring instructions:Where the Originating Broker elects to clear its Outbound Trade by utilising Post Trade Services, it must provide its instructions relating to the clearing of the Outbound Trade through Bursa Depository in the mode and manner as required by Bursa Depository. Bursa Depository is authorised to act on any written instructions given by the Originating Broker in the mode prescribed by Bursa Depository. Bursa Depository may act and rely in the performance of its services/obligations pursuant to this Subscription, and without any liability on its part, upon any instructions or documents given by the Originating Broker believed by Bursa Depository in good faith to be given by the Originating Broker or to be genuine. Bursa Depository shall have no responsibility for any losses or liabilities whatsoever should such instructions or documents turn out to be unauthorised, erroneous or fraudulent.
Any instructions shall continue in full force and effect until cancelled or superseded in the manner prescribed by Bursa Depository.
Notwithstanding the above, if anyinstructions are conflicting, unauthorised or ambiguous, Bursa Depository may refrain from executing such instructions until such conflict, authority or ambiguity has been resolved.
The Originating Broker acknowledges that Bursa Depository shall not be liable to execute instructions to clear Outbound Trades that are not matched in the system of the Executing ClearingHouse.
Bursa Depository may refuse to execute any instruction,without liability, in the following circumstances:
(i)if in Bursa Depository’s opinion, it is contrary to any applicable law, regulation, rule or other regulatory requirement (including those arising from any governmental authority, self-regulatory organisation, stock exchange or clearing house)or where there are any issues with the securities itself;
(ii)if the obligations arising from the execution of such instructions are not adequately covered by the relevant cash or securitieswithin the timelines prescribed by Bursa Depository; or
(iii)if there are reasonable grounds for believing that the instruction is unauthorised or fraudulent.
The Originating Broker acknowledges and agrees that there are inherent risks associated with electronic communications. In the event that the mode of instruction used at the time is unavailable or becomes unsuitable for any reason, an alternative mode of sending instructions may be provided by Bursa Depository.
- Rules and regulations.
The Originating Broker has been satisfactorily apprised of, and fully understands theRules, and agrees to abide by and/or perform the obligations or requirements in the Rules as amended from time to time in so far as the same applies to the Originating Broker.
Bursa Depository does not have, in respect of the Outbound Trades, any duty to monitor the compliance by the Originating Broker, its agents or clientswith any of the Rules.
Bursa Depository does not assume any of the regulatory duties of the Originating Broker and is in no way liable for their due fulfilment by the Originating Broker. Bursa Depository provides no legal, tax or accounting advice in respect of the Post Trade Services provided and provides no advice regarding the suitability or profitability of any transaction associated with the Post Trade Service provided.
For the avoidance of doubt, nothing in these Terms and Conditions shall be construed to prejudice or limit in any manner Bursa Depository’s powers, rights and/or remedies under the law or affect or reduce in any manner the Originating Broker’s obligations under the Rules, where applicable.
- Taxes. Any taxes, levies and/or chargeswhich may be imposed for transactions carried out pursuant to this Subscription shall be for the account of the Originating Broker.
In addition and without derogation from the other indemnities contained in this Subscription, the Originating Broker further agrees to indemnify Bursa Depository and hold it harmless against the consequences of failure to pay all such taxes, levies or charges including any fines or penalties imposed against Bursa Depository or loss or costs suffered by Bursa Depository as a result of the Originating Broker’s failure to pay such taxes, levies and/or charges.
Bursa Depository reserves the right to, where applicable, withhold and pay a portion of the monies due to the Originating Broker or under the Subscription, in compliance with the requirements of the Inland Revenue Board or other government authority or any other relevant authority (whether or not in Malaysia).
- Liability.
The Originating Broker shall be responsible for any loss, damage, costs, expense, action, claim, proceeding or liability (collectively “Losses”) suffered by Bursa Depository as a result of or in connection with Bursa Depository performing its dutiesunder this Subscription and the provision by Bursa Depository of the Post Trade Services under this Subscription, except to the extent that such Losses are as a direct result of Bursa Depository’s gross negligence or wilful default. In the event that Bursa Depository is held to be liable at law for any Losses notwithstanding the foregoing provisions, such liability shall not exceed in the aggregate for all claims under and relating to this Subscription and Post Trade Services, the total amount of fees that the Originating Broker has paid to Bursa Depositoryin the year that the liability arose, for the use of Post Trade Services.
The Originating Broker agrees and acknowledges that some of the Post Trade Services are provided, operated and managed by a third party service provider and not Bursa Depository. Bursa Depository and its related and holding companies and affiliates, and the directors, officers, employees and authorized agents of Bursa Depository, its related and holding companies and affiliates (collectively, the “Related Parties” or individually “Related Party”) make no representations or warranties, either express or implied, including but not limited to any implied warranty of merchantability or satisfactory quality, or fitness for a particular purpose, or compliance with any description, or any implied warranty arising from the course of performance, course of dealing, usage of trade or otherwise, with respect to any part of the Post Trade Services, software, hardware or services. In particular, Bursa Depository does not warrant that the Post Trade Services will be uninterrupted or error free. Neither Bursa Depository nor any Related Party shall have any obligation or be liable for any error, omission, defect, deficiency or nonconformity thereof.
Under no circumstance shall Bursa Depository or its Related Parties be liable for:
(i)any Losses incurred by the Originating Broker or any third party whatsoever and howsoever arising, in relation to the Post Trade Services and/or this Subscription;
(ii)any Losses arising as a result of Rules of the ASEAN Jurisdictionin which the Outbound Trade is executed;
(iii)any special, indirect, consequential or punitive Losses or any economic loss or loss of profit or loss of business incurred by the Originating Broker;