BY USING THE SERVICE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL OTHER TERMS AND CONDITIONS AND POLICIES OF THE EQONEX DIGITAL ASSET EXCHANGE PLATFORM AT WWW.EQONEX.COM (“PLATFORM”).
YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE SERVICE IS OFFERED ON THE PLATFORM AND IS PROVIDED TO YOU BY DIGITAL SOFTWARE TECHNOLOGY PTE. LTD., A COMPANY INCORPORATED IN SINGAPORE (REGISTRATION NO. 202024470W) (“COMPANY”).
Derivative products such as options, futures and perpetuals, with or without leverage (“derivative products”), are complex in nature. Product features and / or risks may not be readily understood due to their complex structure, novelty and reliance on technological features.
There are risks involved in trading in derivatives. You confirm that to the best of your knowledge you are permitted to trade in derivative products in the jurisdiction(s) applicable to you. The Service is not made available to persons in prohibited jurisdictions. If you are someone based in a jurisdiction to which prohibitions or limitations apply, do not proceed any further.
Before applying to trade in any such products, you should consider whether such products are suitable for you having regard to your financial situation, trading / investment experience and trading / investment objectives.
You should never make investment decision based on materials provided to you by us, other users of the Platform or more generally found on, or provided by way of, the Platform.
Please refer to the Product Specifications for further details. The terms and conditions in the Product Specifications shall be deemed incorporated into these Terms and Conditions, and form part of the Agreement. Ensure you read and understand all applicable documents to this Agreement before proceeding.
Trading in derivative products involves significant risks. Please read the Risk Disclosure Statement. Do not purchase and trade these products unless you fully understand the nature of and risks associated with these products and are willing to assume such risks. Making available any advertisements, marketing or promotional materials, market information or other information relating to a derivative products or service shall not, by itself, constitute solicitation of the sale or recommendation of any product or service by the Company, EQONEX (as defined below) or its related corporations.
The contents of this document have not been reviewed by any regulatory authority. You are advised to exercise caution. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.
You understand and acknowledge that:
(a) you are entering into this digital asset derivative product trading agreement with the Company (including any schedule thereto, the “Agreement”);
(b) this Agreement takes effect on the date on which you: (i) click the button to accept this Agreement, or (ii) first enter a trade in the derivative products offered on the Platform, whichever comes first (“Effective Date”); and
(c) subject to the terms and conditions of this Agreement, the Company makes available derivative products for trading on the Platform (“Service”).
References in this Agreement to “we”, “our”, or “us”, are to Digital Software Technology Pte. Ltd.
References in this Agreement to “you” or “your”, include any legal entity on behalf of which you may be acting.
For the purpose of this Agreement, “Affiliate” means any individual or legal entity directly or indirectly controlling, controlled by or under common control with such Party to which it relates, where control may be by either management authority, contract or shareholding interest. For the purpose of this definition, an individual or a legal entity has control if it: (a) holds the right, directly or indirectly, to appoint or remove the directors or equivalent persons of the company who hold a majority of the voting rights at meetings of the directors or equivalent persons on all or substantially all matters, (b) holds, directly or indirectly, more than 25% of the rights to vote on those matters that are to be decided upon by a vote of the members or equivalent persons of the company, or (c) has the right to exercise, or actually exercises, significant influence or control over the company.
2.1. The Company only provides the Service to registered customers of the Platform, and the Company’s obligations under this Agreement are conditional on you having first entered into, and maintaining throughout the tenure of this Agreement, a digital asset exchange agreement with EQONEX Capital Pte. Ltd. a Singapore company with registration number 201827813E (“EQONEX”).
2.2. You represent and warrant that:
(a) you have read, understood, and accepted all of the terms and conditions contained in this Agreement, as well as all policies and fee schedules;
(b) if you are a physical person, you are an adult (and at least 18 years of age) and are capable of validly entering into agreements and performing your obligations hereunder under the laws of all relevant jurisdiction(s) which apply to you and you have not have been previously suspended or removed from the Service or any other service or product offered by us or EQONEX or our and their respective Affiliates;
(c) if you are registering to use the Service on behalf of a legal entity, that: (i) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, (ii) you are duly authorized by such legal entity to act on its behalf, and (iii) such organization (and any Affiliate) must not have been previously suspended or removed from the Service or any other service or product offered by us or EQONEX or our and their respective Affiliates, to enter into this Agreement;
(d) you are not a person whose name appears on any List of Specially Designated Nationals and Blocked Persons maintained by OFAC, maintained by any country and from time to time nor do you reside in or transfers funds from or through an account in a Non-Cooperative Jurisdiction and you shall not be using the Service for any illegal activity including, but not limited to, those Restricted Activities listed in the Platform terms and conditions;
(e) this Agreement and the entry into or performance of your obligations under this Agreement do not contradict the laws of the country or territory where you are from;
(f) you do not reside in, or otherwise have any relevant connection with, a country or territory, in which it is unlawful to access or use the Service;
(g) neither we nor any Affiliate has induced or influenced you (through marketing or otherwise) to use the Service. Rather, you are requesting the Service at your own initiative through your own self-directed research, without input from, or reliance upon, the Company, EQONEX or any Affiliate;
(h) you have conducted your own suitability checks and procedures before using the Service; and
(i) you understand that legislative and regulatory changes or actions at the domestic or international level may adversely affect the Service or your Account.
2.3. You are aware of and assume the risks in using the Service, which include but are not limited to:
(a) high price volatility of digital assets or the derivative products may lead you to incur total loss in a short period of time;
(b) the insufficiency of assets deposited as margin collateral could result in immediate forced liquidation of your positions without prior notice to you, and you could lose all assets you have deposited with the Service;
(c) technology failures or outages may occur, which may delay or block your use of the Service;
(d) extreme market swings may occur, which may result in losses to you; and
(e) from time to time, in order to maintain the overall health of the market, we may need to add, remove, or change our policies and this Agreement. Such actions may be unfavourable to you.
2.4. You acknowledge and agree that:
(a) you shall not use the Service for any illegal purposes;
(b) you shall abide by the principle of fairness and impartiality when participating in derivative products transactions;
(c) you shall not initiate, facilitate or participate in any form of market manipulation;
(d) we are entitled to restrict transactions and close accounts where we suspect unfair dealings, lack of impartiality or manipulations;
(e) we may suspend, cancel or reverse any trades if: (i) we deem it necessary for the maintenance of a fair and orderly market, (ii) we deem that there has been a technical and / or system error or failure, (iii) in our opinion, it is desirable to do so to protect the integrity and reputation of the Platform, EQONEX and / or the Company (including where a user has engaged or attempted to engage in any prohibited or illegal conduct);
(f) we are entitled to require that you adopt risk control measures such as withdrawing orders, closing positions when the number of holding positions or orders is excessive and we consider that there may be material risks to the system and other users, and to suspend your account or the Service to you until you have done so;
(g) when we deem necessary, we may limit the total number of positions in your account, limit the total number of orders, limit the position opening, withdraw orders, conduct the liquidation and take other measures for risk control purposes; and
(h) Checkout.com is not involved in any transactions relating to derivative products on the Platform.
3. REVISIONS - RIGHT TO SUSPEND OR DELAY
3.1. We have the right to make any amendments to this Agreement by posting the revised Agreement on the Platform, indicating when the revisions become effective. If you do not agree with any revision, you should immediately cease using the Service. You are deemed to have accepted the amended terms and conditions if you continue to use the Service after the Agreement is amended.
3.2. You acknowledge and agree that we have the right to change, suspend, or discontinue any aspect of the Service at any time and in any jurisdiction, including hours of operation or availability of any feature, without notice and without liability to you. We may decline to process any order and may limit or suspend your use of any part of the Service at any time, in our sole discretion.
3.3. You acknowledge and agree that we may, in our sole discretion, decline to process orders if we believe the transaction: (i) is suspicious, (ii) may involve fraud or misconduct, (iii) violates applicable laws, or (vi) violates this Agreement. We shall notify you by the end of the business day if we have suspended processing your orders for any of the foregoing reasons.
4. ACCOUNT - SUSPENSION AND CLOSURE
4.1. You must open and maintain an account on the Platform in order to use the Service (“Account”). Without liability to you or any third party, we have the right to decline your request for an Account, to suspend or terminate your Account, or limit or terminate your use of all or part of the Service, without notice to you. Such actions may be taken in our complete discretion, including without limitation the following circumstances: (i) account inactivity, (ii) failure to respond to our requests for information or to provide documents required by us for regulatory and compliance purposes, (iii) an order issued by a court of relevant jurisdiction, government agency or regulatory body, (iv) your breach of the terms and conditions (including your representations and warranties) in this Agreement, and (v) it is, in our opinion, contrary to any applicable laws and regulations for the Company and EQONEX to perform, or give effect to all or any of the rights and obligations under, this Agreement, or otherwise provide access to the Service. In connection with the foregoing, we have the right to liquidate the position(s) in your Account, and you agree that you shall indemnify and hold the Company and EQONEX harmless from all costs and expenses incurred in relation thereto.
4.2. We have the right to temporarily suspend access to your Account in the event that a technical problem causes system outage or Account errors, until the problem is resolved.
4.3. You may terminate this Agreement at any time by closing your Account in accordance with this Agreement. In order to do so, you should contact us for assistance in closing your Account. You may not close an Account if we determine, in our sole discretion, that such closure is being performed in an effort to evade a legal or regulatory investigation or to avoid paying any amounts otherwise due or owed to us. Your closure of the Account shall be without prejudice to any of our claim or right of action against you for any breach of this Agreement.
4.4. We reserve the right to restrict or refuse to permit withdrawals from your Account if: (i) your Account has otherwise been suspended or closed by us in accordance with this Agreement, (ii) to do so would be prohibited by law or court order, or we have determined that the derivative products in your Account were obtained fraudulently, or (iii) you fail any Platform KYC or AML verification procedure. You hereby authorize us to cancel or suspend pending transactions upon the closure or suspension of your Account, as we deem fit.
4.5. In the event that you or we terminate this Agreement or your access to the Service, or suspend or close your Account, you remain liable for all activity conducted with or in connection with your Account while it was open and for all amounts due in connection with such activity.
5. USE OF THE SERVICE
5.1. You may place orders, in the form required by us, via the Platform, client software, API or any other approved channels.
5.2. Once an order for a derivative product is filled you shall not be able to cancel or amend it.
6. CONTRACT SPECIFICATION
6.1. The derivative product specifications are provided in the Product Specifications. Any terms not defined herein shall have the meaning ascribed to them in the Product Specifications.
6.2. To the extent there is any inconsistency between these Terms and Conditions and the Product Specifications, the former prevails.
7. MARGIN AND NEGATIVE BALANCES
7.1. To keep leveraged positions open, you are required to hold a percentage of the value of the position in your Account as margin.
7.2. If you cannot fulfill your margin maintenance requirement, the Company has the right to liquidate the positions in your Account, as it deems fit, without prior notice to you (“Liquidation”). In case of Liquidation, the value, in USDC, of all assets in the Account that can be used as collateral for leveraged trades (“Total Account Margin”) may be lost and you shall be charged a Liquidation Fee (see Product Specifications).
7.3. If you have chosen to enable cross collateral for the Account, then assets other than USD or USDC held in the Account (“Cross Collateral”) may be used as collateral to keep your leveraged position(s) open. The amount and type of Cross Collateral necessary to keep a given leveraged position open will be determined by the Company in its sole discretion taking into account the applicable haircut percentages for each type of asset comprising the Cross Collateral.
7.4. If a negative USDC balance arises in your account at any time, the Company has the right to immediately liquidate some or all of the eligible Cross Collateral to settle such negative USDC balance, subject to negative balances being enabled by you as described hereunder.
7.5. Once you have chosen to enable cross collateral for the Account, you may not be able to disable it without depositing additional USD or USDC if you are using non-USD or non-USDC assets to fund any leveraged position.
7.6. If you have chosen to enable negative balances for your account, should your USDC account balance become negative (a “Negative Balance”) there will be no liquidation of your Cross Collateral until the Negative Balance exceeds a threshold amount determined by the Company and notified to you.
7.7. Your account will be charged a fee for any Negative Balance that will be deducted from your USDC balance every 8 hours.
7.8. If you disable negative balances while you still have a negative USDC balance, the Company has the right to liquidated some or all of your Cross Collateral in order to cover this shortfall.
8. TERMINATION OF DERIVATIVE PRODUCTS
8.1. We have the right to remove one or more derivative products from the Platform by posting a notice on the Platform, indicating the date on which such products will be terminated from the Platform.
8.2. Any and all open positions you still maintain as at 04:00 UTC on the day the notice ends shall be closed, without any liability on our part. You acknowledge and agree that you shall not hold us responsible for, and shall indemnify us from, any liability, costs and / or expenses arising from the closure of such positions.
9. LIMITATION OF LIABILITY - NO WARRANTY
9.1. You expressly understand and agree that, to the maximum extent permitted by applicable law:
(a) neither we, EQONEX, our and their respective Affiliates and service providers, and our and their respective officers, directors, agents, joint venture partners, employees, and representatives shall be liable for any indirect, incidental, special, consequential, exemplary damages, or damages for loss of profits including without limitation damages for loss of goodwill, use, data, or other intangible losses (even if we have been advised of the possibility of such damages), whether based on contract, tort, negligence, strict liability, or otherwise, resulting from: (i) the use or the inability to use the Service, (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained or messages received or transactions entered into through or from the Service, (iii) unauthorized access to or alteration of your transmissions or data, (iv) any other matter relating to the Service, including the regulatory treatment of the Service, or (v) violation of any regulatory requirements imposed in any jurisdiction; and
(b) our aggregate liability in contract, tort or otherwise (including any liability for any negligent act or omission) howsoever arising out of or in connection with the performance of its obligations under this Agreement in respect of any one or more incidents or occurrences shall be limited to the total net amounts received by us from you by way of trading fees in connection with your use of the Service in the six-month period immediately prior to the date of the incident, or the first incident of a series of connected incidents, giving rise to a claim made by you under this Agreement.
9.2. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations set forth above may not apply to you. If you are dissatisfied with any portion of the services or with this Agreement, your sole and exclusive remedy is to discontinue use of the Service and close your account. The Service is provided “as is” and without any representation or warranty, whether express or implied. We, EQONEX and our and their respective officers, directors, agents, joint venture partners, and employees disclaim any implied warranties of title, merchantability, fitness for a particular purpose or non-infringement. We make no warranty that: (i) the Service shall meet your requirements, (ii) the Service shall be uninterrupted, timely, secure, or error-free, or (iii) the quality of any products, services, information, or other material purchased or obtained by you shall meet your expectations.
9.3. You expressly understand and agree that no advertisement, invitation or document prepared or issued by EQONEX or any of its Affiliates should be construed as an offer to the public in any jurisdiction.
10.1. You undertake not to disclose to any person or persons any Confidential Information that you may acquire in the course of your use of the Service. “Confidential Information” shall mean any written information (including information provided in electronic form) or oral information which is confidential or a trade secret or proprietary and which is clearly identified as confidential at the time of disclosure or would be assumed by a reasonable person to be confidential under the circumstances surrounding the disclosure. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already known by you prior to receipt from us, (ii) publicly known or becomes publicly known through no wrongful act of you, (iii) rightfully received from a third party without you having knowledge of a breach of any other relevant confidentiality obligation, or (iv) independently developed by you. The obligations of this clause do not prevent you from disclosing Confidential Information either: (a) to a third party pursuant to a written authorization from us; or (b) to satisfy a requirement of, or demand by, a competent court of law or other tribunal or governmental, or administrative or regulatory or self-regulatory body or listing authority or any Applicable Law, provided that we are notified prior to such disclosure to the extent permitted by applicable law.
11. ABSENCE OF WAIVER
Our failure or delay to enforce any of the terms or exercise any right under this Agreement shall not be construed as a waiver to any extent of our rights.
12. FORCE MAJEURE
In no event shall the Company be liable for any failure or delay in the performance of its obligations under this Agreement, arising out of or caused, directly or indirectly, by circumstances outside its control, including without limitation, governmental actions, sabotage, strikes, loss or malfunction of utilities, communications or computer (network, hardware and software) services, acts of war or terrorism, earthquake, fire, flood, or other acts of God, delays or failures caused by problems with another system or network, mechanical breakdown or data-processing failures or where we are bound by other legal obligations.
You may not transfer or assign this Agreement or any rights or obligations you have under this Agreement without our prior written consent or otherwise and any such attempted assignment shall be void. We reserve the right to freely assign or transfer this Agreement and the rights and obligations of this Agreement, to any third party at any time without notice or consent. If you object to such transfer or assignment, you may stop using our Service and terminate this Agreement by contacting us and requesting to close your account.
You agree to indemnify and hold harmless the Company, its officers, directors, employees and agents for any loss or damage arising from or in connection with any breach or alleged breach by you of any of the representations and warranties in this Agreement. Your indemnities, representations and warranties contained in this Agreement shall survive the termination of your Account or this Agreement for any reason.
15. THIRD PARTY APPLICATIONS
15.1. If you grant express permission to a third party to connect to your Account, either through the third party’s product or through us, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement.
15.2. You acknowledge and agree that you shall not hold us responsible for, and shall indemnify us from, any liability arising from the actions or inactions of such third party, arising from or in connection with the permissions you grant in respect of your Account.
16. LIMITED LICENSE - IP RIGHTS
16.1. We grant you a limited, non-exclusive, non-sublicensable, and non-transferable license, subject to this Agreement, to access and use the Service solely for approved purposes as determined by us. Any other use of the Service is expressly prohibited. We and our licensors reserve all rights in the Service, and you agree that this Agreement does not grant you any rights in, or licenses to, the Service except for the limited license set forth above.
16.2. Except as expressly authorized by us, you agree not to modify, reverse engineer, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in whole or in part. If you violate any portion of this Agreement, your permission to access and use the Service may be terminated pursuant to this Agreement.
17.1. You agree to indemnify the Company, EQONEX, our Affiliates, our and their respective officers, directors, agents, joint venture partners, employees, and representatives (each, an “Indemnified Party”) for actions related to your Account and your use of the Service.
17.2. You hereby agree to defend, indemnify and hold each Indemnified Party harmless from any claim or demand (including reasonable legal fees) made or incurred by any third party against us due to or arising out of your breach of this Agreement, your use of the Service, your violation of any law or the rights of a third party and / or the actions or inactions of any third party to whom you grant permissions to use your Account.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Singapore, without giving effect to the principles of conflicts of law thereof.
19. DISPUTE RESOLUTION
19.1. Any dispute, controversy, difference or claim arising out of or in connection with this Agreement or the subject matter of this Agreement, including any question concerning its formation, validity, interpretation, performance, breach and termination ("Dispute") must be exclusively referred to and finally resolved by binding arbitration administered by the Singapore International Arbitration Centre ("SIAC") under the SIAC Administered Arbitration Rules, as in force when the Notice of Arbitration is submitted in accordance with these Rules, and as may be amended by the rest of this section. Capitalised terms used in this section and which are not otherwise defined in this agreement shall have the meaning given to those terms in the SIAC Administered Arbitration Rules.
19.2. The arbitration shall be administered by the SIAC in accordance with the SIAC Procedures for Arbitration as in force when the Notice of Arbitration is submitted. The arbitration proceedings must be conducted in English, in Singapore, by one arbitrator. If the parties cannot agree upon the arbitrator within twenty (20) days after the date of the Notice of Arbitration, the arbitrator shall be appointed by the SIAC.
19.3. The arbitration award is final and binding on the parties and the parties agree to be bound and to act accordingly. Unless required by applicable laws or regulatory requirements or with the prior written consent of the parties to the arbitration, the content, existence and award of any arbitral proceedings must be kept confidential.
19.4. The other provisions of this section notwithstanding, each party agree that in the event a party legitimately believes it may have no adequate remedy in money damages in the event of a breach or threatened breach by the other party, including its agents, directors or employees, of any provision of this Agreement, the party shall be entitled to an injunction against such breach, in addition to any other legal or equitable remedies available to it.
20. ENTIRE AGREEMENT - THIRD PARTY RIGHTS
20.1. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.
20.3. Save for each Indemnified Party, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) of Singapore to enforce any provision of this Agreement. The Company may amend any term of this Agreement without the consent of any person who is not a party.
© 2020 DIGITAL SOFTWARE TECHNOLOGY PTE. LTD.