1. PRIVACY AND CONFIDENTIALITY
(a) The Broker shall take reasonable measures to protect the privacy and confidentiality of information in its possession about the Client and its account.
(b) The Client consents to the recording of the Client’s telephone conversations with the Broker in connection with this Agreement or any actual or potential transaction in relation thereto. The Client agrees that any such recording may be submitted in evidence to any court or in any proceedings for the purpose of establishing any transaction or any matter pertinent to this Agreement.
(c) Information obtained from the Client about said Client’s financial situation, investment experience, and investment objectives regarding the services to be provided by the Broker, shall be treated with utmost confidentiality and shall not be disclosed to unauthorized persons unless required by law, relevant rules, or by lawful order of a court/ government agency/ quasi-judicial body of competent jurisdiction.
2. CONSENT TO PROCESSING AND DISCLOSURE OF INFORMATION
The Client acknowledges and agrees that updated information relating to the Client, the Client’s organization, authorized representatives (including personal data of Client officers and directors, authorized signatories, employees, beneficial owners, agents, users, beneficiaries, customers and other personnel), transactions, orders, trades, positions, trading account codes, financial situation, investment experience, and investment objectives, business and bank accounts and records provided by the Client, made available to or in the possession of the Broker and/or any of its Affiliates (collectively referred to as the “BPI Group of Companies”) (collectively, the “Client Information”) or updated from time to time, may be collected, used, stored, consolidated, processed, profiled, benchmarked, disclosed and shared by and between the Broker or any member of the BPI Group of Companies, its successors and assigns, for any or all of the following (the “Purposes”):
(a) To approve, manage, facilitate, administer, implement, and provide the products, services, transactions, and facilities availed of and/or selected by the Client;
(b) To comply with the Broker’s operational, audit, administrative, credit and risk management processes, policies and procedures; the terms and conditions of this Client Agreement; legal and regulatory requirements of government regulators, judicial or supervisory bodies, tax authorities or courts of competent jurisdiction, as the same may be amended or supplemented from time to time;
(c) To comply with applicable laws of the Philippines (including but not limited to (i) Data Privacy Act (“DPA”) and its implementing rules and regulations; (ii) Securities Regulation Code (“SRC”) and its implementing rules and regulations, including SRC rule 30.2.9 on done through transactions (“DTT”); (iii) PDEx Rules or such other Self-Regulatory Organization (SRO) for the fixed income market; and/or (iv) PSE Rules and Regulations, and those of other jurisdictions including the United States Foreign Account Tax Compliance Act (“FATCA”), the laws on the prevention of money laundering and terrorism activities, including the provisions of Republic Act No. 9160 (Anti-Money Laundering Act of 2001), as amended (“AMLA”) and the implementation of know your customer and sanction screening checks;
(d) To develop and enhance the product, business and customer offerings of Broker or any of the BPI Group of Companies, which may include the conduct of product, system, statistical or business analysis, surveys, schemes, planning and research;
(e) To pursue marketing, sales, promotional, advertising, and business initiatives (the “Marketing Initiatives”), which may include the development, formulation, dissemination, distribution and rollout of Marketing Initiatives information, materials, documents or brochures, relating to the products, services, events, promotions, programs, and offers, of Broker or any of the BPI Group of Companies or by third parties with which Broker or any of the BPI Group of Companies, under a duty of confidentiality, has contracted with (the “Program Partners”), whether such Marketing Initiative is undertaken individually by Broker or by any of the BPI Group of Companies or pursued together with any of the BPI Group of Companies or with Program Partners under a joint venture initiative, servicing agreement, cross-selling arrangement, loyalty or promo program or any project undertaking on a collective or tie-up basis;
(f) In compliance with regulatory requirements, to verify or validate the Client Information in any reasonable manner with appropriate sources including (but not limited to) courts, government agencies or arbitral tribunals on the status of any case or proceeding to which the Client may be a party;
(g) To carry out, fulfill and complete the transactions authorized by the Client in connection with Broker’s performance of the services, facilities and these Terms and Conditions.
Pursuant to the relevant Purpose(s), Broker may share and disclose Client Information, whether within or outside the Philippines, under a duty of confidentiality:
(1) to any of the BPI Group of Companies;
(2) to Broker’s directors, officers, employees, professional advisers, legal counsels, auditors, agents, representatives, service providers, and third parties providing services to Broker on a “need to know” basis;
(3) to merchants and promotional, network, loyalty program and joint venture partner, and their respective service providers, in order to carry out, fulfill and/or complete the transactions authorized by the Client;
(4) to any judicial, governmental, regulatory or supervisory body of the Philippines or those of other jurisdictions, including exchange of information among tax authorities in compliance with FATCA, as the same may be amended or supplemented from time to time;
(5) to self-regulatory organizations (“SRO”), exchanges, clearing agencies, depositories and their authorized representatives that exercise regulatory and supervisory responsibilities over the Broker, or to comply with any order issued by the commission pursuant to SRC rule 30.2.9 on DTTs;
(6) to any potential transferee or assignee of Broker’s rights and/or obligations under the relevant contracts or agreements or in connection with any sale, acquisition, merger or consolidation of any of the BPI Group of Companies;
(7) to representatives, agents or service providers engaged by Broker or by any of the BPI Group of Companies to perform (whether within or outside the Philippines) data processing, collection, consolidation, storage and such other services in connection with the products, services, and facilities availed of by the Client (the “Outsourced Service Providers”);
(8) to representatives, agents or service providers engaged by Broker, or by any of the BPI Group of Companies or by Program Partners, in connection with the Marketing Initiatives; and,
(9) to such other persons or entities that Broker \ or any of the BPI Group of Companies or the Outsourced Service Providers may engage or contract with to facilitate or carry out any or all of the foregoing Purposes.
(h) The foregoing constitutes the express consent of the Client under the applicable bank secrecy, confidentiality and data privacy laws of the Philippines and other jurisdictions, Including without limitation, the provisions of RA No.1405 (The Law on Secrecy of Bank Deposits), RA No. 6426 (The Foreign Currency Deposit Act), RA No.10173 (Data Privacy Act of 2012), RA No.8791 (The General Banking Law), RA No.9510 (Credit Information System Act, RA No. 8799 (Securities Regulations Code) (collectively, the "Bank Secrecy and Privacy Laws") and the Client agrees to hold the Broker, each member of the BPI Group of Companies and its authorized representatives free and harmless from any and all liabilities, claims, damages, suits, costs and expenses resulting from or in connection with the implementation of the Purposes and authorities conferred by the Client under this Agreement.
(i) For the avoidance of doubt, to the extent that applicable confidentiality, bank secrecy or other laws impose non-disclosure requirements on certain relevant information but permits a party to waive such requirements by written consent, the express consent provided herein shall constitute the Client’s written consent for purposes of such applicable laws. Any agreement between the Client and the Broker to maintain confidentiality of information shall continue to be observed to the extent that such agreement is not otherwise inconsistent with the consent to disclosure of Client Information authorized under this Agreement.
3. REPRESENTATIONS & WARRANTIES
The Client hereby represents and warrants to the Broker on a continuing basis:
(a) that the Client has the legal right, authority and full power, and the Client’s authorized representative/s are duly authorized to execute, deliver and perform this agreement and all necessary actions have been taken to authorize the execution, delivery and performance and enforcement of the same. If a corporation, Client represents further that it is a corporation duly organized, validly existing and in good standing under the laws of the Philippines and other jurisdiction where it is conducting business.
(b) the Client’s execution and delivery of this agreement will not violate any provisions, permits, or licenses of the Client as well as all applicable laws or regulations. Neither the execution delivery of this agreement nor the performance of the Client’s obligations hereunder will breach or result in default or violation in the performance or fulfillment of any obligation, covenant or condition in any agreement to which the Client is a party or is bound.
(c) the Client has obtained, prior to submitting to the Broker information about individuals related to it (including personal data of its officers and directors, authorized signatories, employees, customers and other personnel) all necessary authorizations and consents as may be required by applicable confidentiality and data privacy laws or agreement, to enable BPI to process the information.
(d) the Client agrees and understands that securities purchased and/or held in custody under this Agreement are not insured by the Philippine Deposit Insurance Corporation.
4. POWER OF ATTORNEY AND AUTHORITY
Broker is authorized by the Client to undertake and perform the following:
a. In connection with Client’s registry account/sub-account with Bureau of the Treasury, Philippine Depository & Trust Corp and/or other designated third-party registry/ custodian, as may be applicable (collectively referred to as the “Third-Party Custodian/Registry”), the Client hereby constitutes and appoints the Broker as the Client’s Attorney-in-Fact, for and in his behalf: (1) to negotiate with and enter into contracts or agreements with the designated Third-Party Registry/Custodian under such terms and conditions acceptable to it for the use or availment of Third-Party Registry/Custodian’s facility that will allow BPI and/or the designated Third-Party Registry/Custodian, as the case may be, to (i) enroll and create a registry account/sub-account for the recording and registration of Client’s securities holdings under the BPI Omnibus Account with the designated Third-Party Registry/Custodian under the latter’s account with the applicable Central Securities Depositories (CSD) for the purposes of recording, registration and maintenance of Client’s holdings of domestic and foreign currency-denominated scripless securities in a segregated manner and set-up, (ii) to effect transfers or movements into the registry/sub-account upon Client’s instructions, and/or as warranted under the terms of the existing agreements between the Client and BPI, or in connection with secondary market transactions undertaken in accordance with the terms of the relevant securities; (2) to sign, execute and deliver the required agreements, documents, forms and any other authorization as may be required for Client’s use and availment of the Third-Party Registry/Custodian’s facilities under the applicable Third-Party Registry/Custodian rules and/or that of the relevant CSD rules and upon such terms and conditions, rules, policies and procedures acceptable to BPI; (3) to approve, execute, administer and facilitate trade transactions (i.e., buying and selling instructions, including relaying of instructions to the designated Third-Party Registry/Custodian in order to record the transfer of ownership implemented in connection with the buy/sell transactions) for Client’s registry account/sub-account within BPI’s Omnibus Account within the Third-Party Registry/Custodian’s facilities.
b. to facilitate the opening or cause the opening of settlement account with BPI, if none is existing, with the Client as the account holder/s and under the Client’s control (except as may be otherwise agreed upon in writing), to serve as the settlement account into which sales proceeds of the Securities consisting of the principal and/or the interests, upon receipt from the issuer, shall be credited and/or against which the purchase price for the Securities and any such charges, fees, or costs thereon shall be debited from time to time without notice;
c. to debit and/or set-off or cause the debiting and/or set-off of the settlement account for (1) any amount/s which is/may otherwise be payable by the Client; (2) the applicable fees of the designated Third-Party Registry/Custodian and the relevant CSD for the use of its facilities; (3) all costs, expenses and charges incurred by BPI in connection with the management and maintenance of the Securities, including the applicable administrative and warehousing fees; (4) any taxes due or deductions required by law; (5) such fees as may be agreed upon between the designated Third-Party Registry/Custodian and BPI in connection with Client’s use or availment of its facilities; and
d. to authorize and consent to BPI’s collection, use, storage, consolidation, processing, disclosure and sharing of updated information relating to the Client, the Client’s organization, the Client’s authorized representatives (including personal data of Company officers and directors, authorized signatories, employees, beneficial owners, agents, and other personnel) transactions, business relationships and accounts provided by the Client, made available to or in the possession of BPI or the members of the BPI Group of Companies, their respective agents, representatives and respective outsourced service providers under an obligation of confidentiality in connection with any or all of the following purposes: (1) BPI’s assignment of a registry account/sub-account pertaining to the Client’s peso/foreign-currency denominated securities lodged with the designated Third-Party Registry/Custodian or the opening of a Settlement Account with BPI pursuant to the terms of the Client Agreement; (2) the Client’s availment and use of the Third-Party Registry/Custodian’s facilities; (3) administration and management of the Client’s Securities holdings in the BPI Omnibus Account held with the designated Third-Party Registry; (4) to comply with BPI’s operational, audit, administrative, credit and risk management processes, policies and procedures, the terms and conditions of the Client Agreement, the rules and regulations, legal and regulatory requirements of government regulators, judicial, supervisory bodies including exchange of information among tax authorities in compliance with the United States Foreign Account Tax Compliance Act (FATCA) or the law on the prevention of money laundering and the implementation of know your customer and sanction screening checks; and (5) as may be required by the CSD or by correspondent banks and/or financial industry bodies or associations, whether local or foreign or as required by applicable laws, as the same may be amended from time to time.
e. to perform such other acts which Broker as Attorney-in-Fact may do or cause to be done in order to carry out and implement the requirements of this Agreement and the authorities conferred herein.
All actions that BPI takes pursuant to this section shall be for Client’s account and risk and shall be in accordance with the relevant provisions of this Client Agreement.
The Client shall not hold BPI responsible nor liable for any failure or delay in the performance of its obligations or for any loss, impairment or damage, arising out of or caused directly by circumstance beyond its control such as but not limited to acts of God, earthquake, fires, floods, civil or military disturbances, sabotage, loss/interruption/malfunction of power/communication utilities or computer hardware or software, labor disputes, or acts of civil/military/government authorities that effectively prevent or delay the performance of specific obligations stipulated herein.
5. CLIENT CLASSIFICATION
Broker classifies and assesses its clients on a best effort basis according to (A) Financial Sophistication and (B) Risk Tolerance based on information provided by the Client in order to determine the product that is suitable to the Client’s needs, financial situation, and objectives; consistent with the Client’s mandate, risk tolerance and constraints.
Financial Sophistication
- Market counterparty – refers to any financial institution, only with respect to the instruments in which it is authorized to engage as a Broker;
- Sophisticated institutional client – refers to an institution that is not a market counterparty but has the level of net worth, knowledge, expertise, and experience to deal with financial products;
- Sophisticated individual client – refers to an individual who has demonstrated to the BSFI that he has the level of net worth, knowledge and experience to deal with financial products; or
- Others – refer to all other institutional or individual clients not categorized as market counterparty, sophisticated institutional client, or sophisticated individual client.
Risk Tolerance
- Conservative – Client prefers an investment and/or hedging strategy where the primary goal is to prevent the loss of principal
- Moderate – Client is willing and able to expose funds to a moderate level of risk in consideration for higher returns or to meet certain objectives; and
- Aggressive - Client is willing and able to accept higher risks involving volatility of returns and even possible loss of investment in return for potentially higher long-term results.
6. PRODUCTS AND SERVICES
The list of products and product-specific disclosures are set out in the Product Disclosure Statement referred to as Annex A in the Securities Account Opening Form (copy/ies of which are readily viewable, made available and/or downloadable from BPI’s website (www.bpi.com.ph) and deemed incorporated herein by reference).
7. GENERAL RISK DISCLOSURE STATEMENTS (INCLUDING BUT NOT LIMITED TO)
The Client acknowledges and agrees that he has read, fully understands and agrees to the following risk disclosure statements:
(a) Risk of Securities Trading: The price of securities can and does fluctuate, sometimes dramatically. The price of a security may move up or down, and may even become valueless. It is as likely that losses will be incurred rather than profit made as a result of buying and selling securities. This is a risk that the Client is prepared to accept.
(b) Investment Risk: Debt and similar securities are not the same as Savings or Time Deposits. The returns and the principal investment in these products are not insured nor are guaranteed. An investor may suffer losses and as a result, there is no guarantee that an investor will get back his/her principal investment.
(c) Credit Risk: An investor is directly/solely exposed to the risk of an issuer of securities (e.g. the Phil. Govt. for Phil Bonds, the Phil. Corporation who issued the security, etc.) defaulting on its obligations in respect to the security up to the full amount of the principal subscribed plus interest.
(d) Liquidity Risk: There may be a lack of buyers and sellers to allow the investor to readily buy or sell investments. This exposes the investor to the risk of having to hold security investments until maturity unless there is a third party willing to purchase the same.
(e) Volatility/Market Risk: Volatility refers to the degree of unpredictable change over time of a certain variable such as the price or yield of an investment. The prices of securities fluctuate, sometimes dramatically.
(f) Currency Risks: The profit and loss in transactions in foreign currency-denominated contracts (will be affected by fluctuations in currency rates where there is a need to convert from the currency denomination of the contract to another currency.
This risk disclosure does not purport to disclose all the risks and other significant aspects of investing in these securities. The Client should undertake said Client’s own research and study on the trading of high-risk securities before commencing any trading activity.
8. NO PORTFOLIO/SECURITIES PERFORMANCE GUARANTEE
The Client acknowledges that the Broker does not in any way guarantee the performance of the Portfolio/Securities and shall not be responsible for any loss sustained except where such loss arises solely out of its acts and omissions done or suffered in manifest bad faith or through gross negligence, gross misconduct or willful neglect.
9. FEES, EXPENSES, COMMISSIONS, PENALTIES
In consideration of the Client’s availment of the products and services herein, the Client agrees to pay the Broker the applicable fees specified in https://www.bpi.com.ph/personal/investments/fixed-income/fees.
(a) The Client agrees that the Broker’s obligations under the Agreement are conditioned upon the Client paying in full to the Broker such fee(s) as may be revised and/or updated from time to time by the Broker. The Client authorizes the Broker to debit such fees directly from the Client's Settlement Account identified in the Securities Account Opening Form. For all purposes, including any legal proceedings, a certificate issued by any officer of the Broker as to the sums and liabilities incurred by or due to the Broker shall, in the absence of manifest error, be conclusive against the Client.
(b) Without prejudice to any other rights under the Agreement, if any of the fees and expenses referred to herein or incurred or owing pursuant to the Agreement remain outstanding after these have become due and payable:
(1) The Broker shall be entitled, without need of notice, to debit automatically and/or offset against or cause the automatic debiting and/or offsetting of any Settlement Account in settlement of any of the Client’s outstanding obligations;
(2) The Broker shall have a lien over the Securities which shall stand as security for such fees and expenses with power to sell, by public or private sale on such conditions as the Broker thinks fit, any such Securities in or towards settlement and any proceeds of sale may be applied in or towards payment of the said fees and expenses.
The Broker’s rights pursuant to this Clause shall be in addition to and not in substitution for any other rights of a similar nature enjoyed by the Broker.
10. PRICES
(a) Any price of any Security quoted by the Broker in response to any enquiry by the Client is for reference only and shall not be binding on the Broker or any of its market information providers. The Broker shall be entitled to act on any Instruction for the sale and purchase of any Security even if the price of such Security has altered to the disadvantage of the Client between the time of receipt of such Instruction and the time at which the Broker or its agent completes any such sale or purchase, as long as the executed price is as favorable as possible under prevailing market conditions.
(b) BPI is acting as Broker for the Client, and as such, is understood to quote a selling /buying price similarly acceptable to the Broker, acting as Principal, and which price shall be based on market information accordingly received in good faith.
(c) While the Broker and its market information providers endeavor to ensure the accuracy and reliability of prices quoted, the Broker does not guarantee accuracy and reliability of prices quoted and shall not be liable for any loss or damages arising from any inaccuracies or omissions.
(d) No Client who has obtained quotes of the prices of any Securities from the Broker shall:
(1) disseminate such quotes (or any part thereof) to any other person;
(2) use or permit the use of such quotes (or any part thereof) for any illegal purpose;
(3) use such quotes (or any part thereof) other than for the Client’s own personal use; or
(4) use such quotes (or any part thereof) in relation to any trading or dealing of Securities otherwise than through the Broker.
11. RIGHTS OF SET-OFF
The Broker may, without notice to the Client, set-off or transfer any sum(s) from the Client’s Settlement Account, in satisfaction of any or all of the Client’s liabilities to the Broker or its sub-custodians, or any of its subsidiaries or affiliates.
12. LIMITATION OF LIABILITY, INDEMNITY AND FURTHER ASSURANCE
(a) The purchase and sale of the securities/instruments by the Broker under this Agreement shall be on a without recourse basis. The Broker neither warrants nor guarantees payment of principal and/or interest thereon or both at maturity. The risk of default by the issuer of the securities for any reason shall specifically be assumed by the Client. In the event the Client wishes to sell the security/instrument, the Broker will not repurchase the same but may, on a best efforts basis, sell the same on behalf of the Client at prevailing market rates.
(b) Without prejudice to any other provision herein, the Client hereby agrees to hold harmless and fully indemnify the Broker and its officers, employees and agents against any and all losses, liabilities, claims, obligations, damages, taxes, duties, penalties, actions, costs, expenses and disbursements of any kind and nature whatsoever (including legal fees and expenses) which any of them may reasonably incur or suffer pursuant to or in connection with:
(1) any act or omission by any of them in the performance of the Client’s obligations hereunder, save where due solely to the gross negligence or willful fault of the Broker or any of its officers, employees or agents; or
(2) any failure by the Client to observe the provisions of, or perform his obligations under the Agreement.
(c) The Client shall hold the Broker and its stockholders, Board of Directors, officers and employees free and harmless from, and shall indemnify them for any liability, obligation, loss, damage, penalty, claim, suit, action, judgment, expense or disbursement of whatever nature, arising from or in connection with this Agreement, which the Client may suffer arising out of this Agreement or any sale, transfer, or assignment of securities/instrument covered by the same, or the enforcement of any of the terms hereof, except to the extent caused by the willful misconduct or gross negligence of the Broker.
(d) The Client agrees, at Client’s own expense and when requested by the Broker, to promptly do and execute, or cause to be done and executed, such acts and documents as may, in the Broker’s reasonable opinion, be necessary or desirable to give full effect to all rights, remedies or powers conferred upon the Broker hereunder.
(e) The Client confirms that Client’s right to the securities purchased under this Agreement is subject to the receipt of cleared funds by the Broker. Payment of securities purchased shall be debited from good/cleared funds in the Client’s Settlement Account. All checks/drafts or other instruments delivered to the Broker or deposited in the Settlement Account as payment for the purchase of securities/instruments are accepted subject to clearing and final payment. If the same is subsequently returned unpaid, the Client is obligated to return to the Broker the corresponding Confirmation Advice or any document confirming payment/investment which shall be considered of no force and effect from the beginning.
(f) The Broker is authorized but not obligated to automatically reinvest in the Client’s name the proceeds of any maturing placement, under such terms or conditions that the Broker deems appropriate, unless the Client issues to the Broker before such maturity a written investment instruction which specifies acceptable placement terms.
13. CONFLICTS OF INTEREST
(a) The Broker shall disclose to the Client any material interest it may have in any investment or proposed transaction, and conduct all purchase/sales transactions or investment activities in accordance with the applicable code of ethics and any applicable law, regulation, ruling or order.
(b) The Client agrees that BPI as Broker may perform its duties under this Agreement through third parties, including any member of the BPI Group, including branches, subsidiaries, or affiliates engaged in broker functions or other third parties who may be acting as agent or as principal. Neither the Broker nor such third party is obliged to account to the Client for any commission, fees or other benefits obtained in connection therewith. In particular, the Client agrees that the Broker may execute the Instructions through such brokers as it may deem necessary in its sole discretion decide.
14. CLIENT CONCERNS
Any dispute or complaint must be made in writing (with all relevant details) and should be referred to the Client’s Relationship Manager, Corporate Clients Segment Account Officer or Global Markets Fixed Income Broker/Selling Agent, as the case may be. The Client may likewise email his concerns to bpiglobalmarkets_customercare@bpi.com.ph or send a message through https://www.bpi.com.ph/contactus or call our 24-hour BPI Contact Center at (+632) 889-10000.
BPI is regulated by the Bangko Sentral ng Pilipinas. https://www.bsp.gov.ph.
15. REPORTS ON UNAUTHORIZED TRANSACTIONS, OTHER CONTINGENCIES
All instructions regarding any purchase or sale of securities shall be given in accordance with the signing authority specified by the Client in the Securities Account Opening Form or thereafter notified by the Client to the Broker in accordance with this Agreement. If any of the joint investors gives written instruction to hold payment of the amount invested or any portion thereof or any interest thereon to the other/s, then payment shall not be made notwithstanding the aforementioned signing authority.
The Broker hereby warrants to act for and on behalf of the Client at all times in the purchase and sale of financial products/instruments/securities or in rendering any service under this Agreement, and only upon receipt of a lawful order, in writing, or oral orders after the same has been confirmed in writing by the Client, and duly received by the Broker.
In the event that an order was made or a transaction was entered into by the Broker for or on behalf of the Client without the latter’s express directive, confirmation, or affirmation in writing, the Client shall report the said unauthorized order or transaction pursuant to Section 14 (Client Concerns) hereof.
16. EVENTS OF DEFAULT AND TERMINATION
(a) Any one of the following events shall constitute an event of default:
(1) the Client’s failure to pay any amount payable to the Broker or submit to the Broker any documents or deliver any asset/ security to the Broker hereunder as required by the transaction, when called upon to do so or on due date;
(2) breach of this Agreement by the Client;
(3) the filing of a petition in bankruptcy or the commencement of any analogous proceedings against any of the Clients;
(4) the levying of any attachment against the Securities Account, the Settlement Account, or any other accounts maintained with any member bank of the BPI Group;
(5) any information, declaration representation or warranty made by the Client to the Broker in this Agreement being or becoming incorrect or misleading;
(6) the death of the Client (if the Securities Account or the Settlement Account is not a joint account); and
(7) any other matter or event including any regulatory requirements or the nature of the instructions given by the Client to the Broker which the Broker in good faith believes may expose or lead the Broker to any actions, claims, proceedings, losses, damages, costs, expenses or liabilities of whatever nature.
(b) Either the Broker or the Client shall have the right, at any time upon giving reasonable notice, to close the Securities Account without providing any reason therefor. The Broker shall be entitled to close the Securities Account without need of prior notice to the Client if an event of default set out above occurs or in the event of exceptional circumstances (such as when the Securities Account is being used for criminal activities) and also notwithstanding that the Securities Account is in credit.
(c) In the event that the Securities Account is closed and/or this Agreement is terminated in accordance with Section 16 (A) (Events of Default and Termination) above, to the extent permitted under applicable laws and regulations but without any prejudice to any other rights and remedies the Broker may have, the Broker shall be entitled to:
(1) close out all or any open positions held by the Broker for the Client in any account with BPI or any member bank of the BPI Group;
(2) to the fullest extent permitted by law, dispose of any securities, collateral or other assets comprising the Portfolio/Securities; and
(3) cancel any outstanding instructions in order to suspend or close the Securities Account, and apply all and any cash held by the Broker and/or the proceeds in satisfaction of all or any amounts owing to the Broker (including without limitation, amounts due in respect of settlement, fees, commissions and interest).
(d) The Broker reserves the right and the Client authorizes the Broker to combine and consolidate the balances of all of Client’s accounts maintained in BPI or any member of the BPI Group and to set off such balances against outstanding balance between the Client and the Broker. The Client grants the Broker full power and authority to implement the foregoing authorizations, the performance of which are hereby expressly authorized, confirmed and ratified by the Client.
(e) Without prejudice to the foregoing, the Client shall pay to the Broker on demand any replacement or other costs which may arise as a consequence of the premature liquidation of the investments of the Portfolio /Securities provided that such costs are reasonably incurred. The Client irrevocably authorizes the Broker to deduct all such costs from the proceeds of the liquidation of the Portfolio/Securities.
(f) The Client authorizes the Broker to transfer or appropriate without the Client’s prior notice or consent the balances in any of the deposit accounts held in any of the members of the BPI Group of Companies in his name to set off the balances still owing to the Broker notwithstanding that the deposit or any part thereof may be subject to a period of notice.
(g) Subject to the provisions of this Agreement and after deduction of all monies and liabilities due by the Client to the Broker, the Broker shall, as soon as practicable, remit the proceeds of the liquidation of the Portfolio/Securities or, if requested by the Client, return such securities or other property as from time to time constitute part or whole of the Portfolio/Securities to the order and at the risk of the Client.
(h) The Client and the Broker acknowledge that closing the Securities Account, terminating the Broker’s services or this Agreement, will not affect the rights and obligations of either party already accrued and/or incurred prior thereto.
(i) The Broker shall not in any way be responsible for any diminution of value of the investments/securities or part thereof by reason of termination of this Agreement for whatever reason and the Client shall in such event bear all losses, penalties or expenses arising from the sale, transfer, disposal or liquidation of the Portfolio or part thereof.
(j) In order to secure payment of the Client’s obligation under this Agreement, the Client hereby grants to the Broker a continuing lien and security interest in, and right of set-off against, all of the Client’s right, title and interest in and to the Settlement Account, the Securities Account, and the securities, including proceeds thereof, money and other property now or hereafter held by the Broker for and on behalf of the Client. In this regard, the Broker shall be entitled to all the rights and remedies of a secured creditor under applicable laws, rules or regulations in effect.
17. ATTORNEY’S FEES
In the event of any controversy or litigation arising herein, the Client shall compensate the Broker for attorney’s fees at the rate of ten percent (10%) of the amount involved but not less than Php100,000.00 plus reasonable litigation expenses. Venue of action for any litigation shall be in the proper courts of Makati City only and the Client submits to the jurisdiction of such courts. The foregoing, however, shall not limit the right of the Broker to commence any action or proceeding in any venue or jurisdiction where the Client’s assets may be found.
18. COOLING OFF PERIOD
The Client may cancel the agreement to purchase a security / financial product without penalty, upon written notice to the Broker, within two (2) banking days following the transaction date. The Broker may, however, collect or recover reasonable amount of processing fees or administrative fees plus any mark to market costs from the signing of the contract up to its cancellation. For the Cooling-Off Period to apply, the following conditions shall be met:
(a) The Client is a natural person. Cooling-off is not applicable to corporations, partnerships, and associations; and
(b) The financial transactions covered are financial instruments whose remaining term is equal to or beyond one (1) year.
This right shall not apply where there has been a drawdown of a credit facility and the Broker shall be able to recover any loss arising from an early withdrawal of a fixed rate term deposit which loss arises because of a difference in interest rates. This shall be in addition to any reasonable administrative fees associated with the closure of the term deposit.
Any request to exit an Agreement or Contract must be in writing, signed, and submitted in original form to the Broker.
Provided that, the Broker shall not be obliged to repurchase the security subject of the exercise of the Cooling Off period, but shall, on a best efforts basis, sell the same on behalf of the Client at prevailing market rates.
19. CLAIMS FOR PAYMENT / REDEMPTION
Any claim relating to the payment or redemption of any security/instrument covered by this Agreement shall be filed within thirty (30) days from receipt of the Client’s Confirmation Advice or any similar document evidencing the transaction from the Broker. If no error is reported within such period, the Confirmation Advice or any similar document shall be considered correct and subject security/instrument shall be deemed fully paid and settled.
20. AMENDMENT OR MODIFICATION OF THE AGREEMENT
The Broker reserves the right to change any of the foregoing terms and conditions by giving written notice thereof to the Client. Such changes shall become effective and binding upon the Client in the event the latter does not object or reply to such notice within ten (10) business days from service of notice in accordance hereof.
21. COLLECTING AGENT
The Broker may be designated as the Client’s collecting agent but guarantees no payment therefor. As collecting agent, the Broker shall credit the Securities Account for any interest or principal due on the Client’s securities only upon receipt of payment from the issuer or its authorized paying agent.
The Client hereby authorizes the Broker to debit the Client’s Securities Account for any excess of payment or miscredit without need of prior notice to the Client.
All taxes, fees, expenses or charges arising out of this Agreement and/or attendant to the purchase, sale, transfer, or assignment, in whole or in part, of the securities/instruments covered by this Agreement, including custodianship of the securities, shall be for the Client’s exclusive account.
22. WAIVER
(a) Waiver of any right under this Agreement must be made in writing and signed by the party waiving such right. The Broker will not be regarded as having waived any right under this Agreement if it fails or delays in exercising such right. Any single or partial exercise of any right under this Agreement will not preclude any further exercise of such right or the exercise of any other rights.
(b) party who waives any breach of any provision of this Agreement will not be regarded as having waived any subsequent breach of that provision or any other provision.
23. BINDING EFFECT OF THE AGREEMENT; ASSIGNMENT
This Agreement shall be binding on the Client and the Client’s estate, executors, administrators, personal representatives, trustee in bankruptcy, receiver, liquidator or other successors and permitted assigns and shall operate for the benefit of the
Broker and the Client’s successors, assigns and agents, notwithstanding any change by way of amalgamation, consolidation or otherwise in the constitution of the Broker or any of the Client’s successors, assigns or agents. The Client shall not assign or transfer any of his rights or obligations under this Agreement without the Broker’s prior written consent. The Broker may assign without need of prior notice to the Client, or otherwise transfer or grant participations in all or any of its rights and interests under this Agreement and any transaction to which this Agreement relates and/or the goods, documents and other properties in respect of which the Broker has a security interest and may deliver the same to the transferee(s), who shall thereupon become vested with all the rights and powers in respect thereof which were formerly vested in the Broker. The Broker shall be released and discharged from any liability or responsibility in respect of the goods, documents or other properties so transferred but shall retain all its rights and powers
in respect of goods, documents or other properties not so transferred.
24. GENERAL PROVISIONS
(a)In the event of the death of the Client/ accountholder/s, the Broker shall only honor instructions on the Securities
account upon submission of the documents required by any relevant third party depositary of their securities or any relevant government agency, as applicable, with regard to the settlement of the estate of the deceased account holder/s. For corporate Securities Accounts, in the event of bankruptcy, liquidation or receivership of the Client, instructions in relation to the Securities Account or the investment shall be given by the duly designated trustee, liquidator or receiver, as the case may be, upon submission of the required documents proving authority to give instructions in relation thereto.
(b)Written notice by the Broker shall be effective if sent to any of the following:
(1) the Client's authorized representatives through the Broker's electronic messaging system/mail transmission/in-app inbox;
(2) the Client's address based on the Broker’s records; or
(3) any other address it may provide to the Broker in writing.
The Client shall promptly notify the Broker, in writing, for any changes in the Client’s address, residency status or other information indicated in this Agreement and its attachments, including the Client Information Sheet. Following this, all such communications sent thereto shall be deemed correct, if the Broker shall not receive any objection from the Client within twenty four (24) hours from delivery thereof.
The following sets out the terms and conditions governing the Leave Order form for Fixed Income Securities executed by and between the Client and BPI, in its capacity as Broker/Selling Agent of fixed income securities:
1. The execution/implementation of this Leave Order or Order is on a best effort basis, subject to market liquidity, and compliance with required minimum size and denomination for the transaction;
2. A Broker/Selling Agent representative has explained the features of the security subject of this Order, including benefits and risks involved;
3. The Client confirms that the he/she/they is/are not prohibited to hold the Securities under any offering circular or similar document in relation to the Securities or a person whose acquisition, holding or transfer of the Securities would violate any applicable law or regulation;
4. This Order is given on a non-discretionary basis. The Client has exercised his/her/their own judgment based on his/her/their sufficient understanding of the transaction and the attendant risks;
5. The Client commits to promptly and timely deliver any documents, letters of instruction, payments, and other requirements to complete settlement of the Order;
6. The Client shall hold the Broker/Selling Agent free and harmless from any and all liabilities, damages, and costs in the event of a failed trade unless caused by the Broker/Selling Agent’s gross negligence or willful misconduct. The Client further agrees to indemnify the Broker/Selling Agent for any and all costs, charges, taxes, fees, or losses associated with a failed trade on Settlement Date caused by me/us or such other losses or damages resulting from the Leave Order.
7. Relevant to Section on Fees, Expenses, Commissions, Penalties of the Client Agreement, the applicable fees specified in https://www.bpi.com.ph/personal/investments/fixed-income/fees shall be debited from the Client’s account.
8. The Client acknowledges that (a) the Broker’s fee and admin fee (for coupon bearing bonds) applicable to the Client’s purchase of the Securities have been properly explained and the Client understands that he/she/they are liable to pay the relevant amount in the manner calculated above and that (b) if the Client’s nominated Settlement Account is the Client’s Current/Checking Account, the Client shall ensure that the account is sufficiently funded to cover any and all checks drawn and/or payment instructions issued against the Account including this purchase order. For this purpose, the Client agrees not to hold the Broker/Selling Agent and/or the Bank of the Philippine Islands liable for the return of any insufficiently funded check(s) or for any insufficiently funded purchase order.
9. The Client accepts and understands that the applicable fees are subject to change by (a) regulators through the issuance of the relevant memorandum, circular, or rule, as the case may be; (b) the Exchange; (c) Self- Regulatory Organization; (d) third-party service providers such as custodian/depository/registry; (e) and others that may affect the provision of services provided by the Broker/Selling Agent.
10. In addition to the provisions of Section on Limitation of Liability, Indemnity and Further Assurance of the Client Agreement, the Client agrees to hold free and harmless Bank of the Philippine Islands, its directors, employees, service providers, representatives and agents from any and all claims, liabilities, damages, suits or causes of action of whatever nature or kind (including the cost of defending or settling any action, claim or demand), in the event of a failed trade, unless such failure is directly and solely caused by Bank of the Philippine Islands’ willful misconduct or gross negligence. Without prejudice to The Client’s rights under Section on Cooling Off Period of the Client Agreement, the Client further agrees to indemnify Bank of the Philippine Islands for any and all costs, charges, taxes, fees, or losses associated with Client’s failure to settle a trade on the agreed Trade Date or Settlement Date, as applicable, or such other losses or damages resulting from the Order.
11. The Client acknowledges that the Broker/Selling Agent is authorized but not obligated to automatically reinvest in my/our name the proceeds of any maturing placement, under such terms or conditions that the Broker/Selling Agent deems appropriate, unless the Client provides to the Broker/Selling Agent before such maturity a duly acknowledged written investment instruction which specifies acceptable placement terms. If the Client’s Securities mature without any written investment instruction having been received and acknowledged by the Broker/Selling Agent, the Client acknowledges that such proceeds shall be deposited in the nominated Settlement Account upon receipt of the proceeds from the Issuer.
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