Common use of Limitations on Liability and Indemnity Clause in Contracts

Limitations on Liability and Indemnity. 13.1. No warranty is given by the Broker as to the performance or profitability of any investments, cash or other assets comprised in the Client’s Assets. Nothing in this Agreement shall constitute the Broker a trustee of the Client or any of the Client’s Assets. 13.2. Except to the extent the same arises solely from the negligence or wilful default or fraud of the Broker or any of its officers, employees or agents and only to the extent of direct and reasonably foreseeable loss and damage (if any) arising directly or solely therefrom, the Broker does not assume any liability or responsibility to the Client or any other person for any liabilities, claims, actions, suits, proceedings, losses, damages, demand, taxes, costs, charges and expenses of any kind which may be incurred or suffered by the Client or any other person as a result of or in connection with : - (a) any loss of opportunity whereby the value of the Client’s Assets could have been increased or for any decline howsoever arising in the value of the Client’s Assets; (b) any errors of fact or judgment or any action taken (or omitted to be taken) by the Broker in good faith; (c) the Broker acting on any Instructions; (d) the negligence, default, bad faith, fraud, act or omission of any person through whom transactions are effected by the Broker on behalf of the Client or who is the counterparty to any such transaction provided that the Broker has exercised reasonable care and has acted in good faith in the appointment or selection of such person; (e) use of the Services by the Client or any other person whether or not authorised; (f) any interruption, suspension, delay, loss, mutilation or other failure in transmission of any Instructions or other information howsoever caused; (g) its inability or delay in executing any Instructions due to any reasons beyond its reasonable control including, without limitation, non-availability of foreign exchange, exchange control or other government measures or restrictions, adverse market conditions, disruptions in market or exchange, suspension of trading, change in national or international monetary, financial, political or economic conditions, any act of force majeure, war, riot, civil commotion, any breakdown or failure of transmission, communication or computer facilities, postal or other strikes or similar industrial action and the failure of any exchange, clearing house or market; or (h) any mechanical failure, power failure, malfunction, breakdown, interruption or Inadequacy of equipment or installation in connection with the Services. 13.3. The Client shall indemnify and keep the Broker, its officers and employees indemnified against all liabilities, obligations, actions, suits, claims, demands, losses and damages which the Broker may incur or suffer, and all costs, charges and expenses (including, without limitation, legal fees on a full indemnity basis and any claims by the Hong Kong Inland Revenue Department on the Broker for tax in respect of any profits or gains attributable to the Client) of reasonable amount and reasonably incurred by the Broker, in connection with the provision of the Services and/or the exercise, enforcement or preservation or attempted exercise of the Broker’s powers and rights under this Agreement, even though they may not have arisen or are contingent in nature, unless arising solely from the negligence or wilful default or fraud of the Broker or any of its officers or employees and only to the extent of direct and reasonably foreseeable loss and damage (if any) arising directly and solely therefrom. The Broker is entitled to withhold, retain or deduct such amounts from the Accounts as it determines to be sufficient to cover any amount which may be owed by the Client under this Clause. The benefit of this indemnity is held by the Broker for itself and on behalf of its officers and employees.