1. Interpretation
In this Agreement, unless the context otherwise requires, the provisions in this Clause 1 shall apply.
1.1. Definitions
“Acceptance” has the meaning given to the term in Clause 2.1.4.
“Account” means any account that the Counterparty registers with the Company for the purposes of, but not limited to, accessing or using the Platform.
“Affiliate” shall mean in relation to any Party, any subsidiary or holding company of that Party and any such holding company, in each case from time to time.
“Agreed Channel” has the meaning given to the term in Clause 2.1.1.
“Authorised Persons” means, in respect of the Counterparty, person(s) authorised to submit, issue, receive or respond to Requests for Quotes, Quotes, Client Orders and/or Acceptances, and conclude Transactions, on behalf of the Counterparty in connection with this Agreement. The initial list of Authorised Persons is set out in Schedule C, which list may be modified in writing by the Counterparty serving notice to the Company pursuant to the notice provisions in Clause 4.13.
“Business Day” means any day other than a Saturday or Sunday on which banks in Singapore are generally open for business.
“Client Order” means a bid or an offer made by the Counterparty to the Company in accordance with Clause 2.1.3 to purchase or sell a particular quantity of a specified digital asset at a specified price (whether such price is denominated in a Fiat Currency or another digital asset) from or to (as applicable) the Company.
“Digital Asset Network” means the computer network which normally adopts the distributed ledger technology to record transactions and govern the transfer of the applicable digital asset.
“Foreign Bank” means, in relation to the United States, an organisation that (i) is organised under the laws of a foreign country, (ii) engages in the business of banking, (iii) is recognised as a bank by the bank supervisory or monetary authority of the country of its organisation or principal banking operations, (iv) receives deposits to a substantial extent in the regular course of its business, and has the power to accept demand deposits but does not include the U.S. branches or agencies of a foreign bank.
“Foreign Shell Bank” means a Foreign Bank without a Physical Presence in any country but does not include a regulated affiliate.
“Hong Kong” means the Hong Kong Special Administrative Region.
“Instant Messenger Platform” means the instant messenger communication system(s) that is or are mutually agreed upon by the Parties from time to time to be used to enter into Transactions pursuant to this Agreement.
“Non-Cooperative Jurisdiction” means any country or territory that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organisation, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organisation continues to concur.
“OFAC” means the United States Office of Foreign Assets Control.
“Person” means any individual, corporation, partnership, association, limited liability company, trust, estate or other entity, either individually or collectively.
“Physical Presence” means a place of business that is maintained by a Foreign Bank and is located at a fixed address, other than solely a post office box or an electronic address, in a country in which the Foreign Bank is authorised to conduct banking activities, at which location the Foreign Bank (i) employs one or more individuals on a full-time basis, (ii) maintains operating records related to its banking activities, and (iii) is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities.
“Platform” means an electronic platform operated by the Company for provision of Services through such website(s) as may be notified by the Company from time to time (which, for the avoidance of doubt, includes all other subdomains).
“Platform Rules” means the terms and conditions, policy and any other rules that apply to the Platform, as published on the Platform from time to time.
“Quote” means a price (which may be denominated in a fiat currency or another digital asset) at which the Company is willing to sell or purchase (as the case may be) a specified quantity of such digital asset, submitted by the Company to the Counterparty via Agreed Channel in accordance with Clause 2.1.2 indicating potential and non-binding terms on which the Company may be prepared to trade.
“Request” means a request for quote submitted by the Counterparty to the Company via Agreed Channel and which specifies: (a) whether the counterparty is seeking to buy or sell a digital asset; (b) the relevant digital asset; (c) the quantity of the digital asset on either a spot or forward basis; (d) other related details or arrangement.
“Sanctions” has the meaning given to the term in Clause 3.2.6.
“Sanctions List” means the Consolidated United Nations Security Council Sanctions List; the Specially Designated Nationals and Blocked Persons List or the Sectoral Sanctions Identification List maintained by the OFAC of the United States; the Consolidated List of Persons, Groups and Entities subject to EU Financial Sanctions; the Consolidated List of Financial Sanctions Targets maintained by the United Kingdom Treasury or any similar list maintained by, or public announcement of sanctions made by, any other Sanctions authority.
“Services” means services provided by the Company to the Counterparty as available from time to time, including but not limited to conducting Customer Due Diligence (CDD) and Know Your Client (KYC) checks in relation to the identity of each client, the nature of each client's business and other details relating to transactions, trading, paying fees, and recording of transactions, through the Platform, or through such other facility provided by (or on behalf of) the Company.
“Settlement Date” means, in respect of a Transaction, the date(s) on which the relevant consideration owing by one Party to the other Party shall be settled. Unless otherwise specified within the Quote, Client Order or Acceptance or the Platform Rules, the Settlement Date shall be the same date as the date on which the Transaction is entered into, save that, in respect of any fiat currency owing by the Company to the Counterparty, the Settlement Date shall be the date falling two Business Days after the date of the Transaction.
“Transaction” means any transaction concluded by the Counterparty with the Company under, or is subject to, the terms of this Agreement, and as subsequently confirmed by the Company to the Counterparty in writing in any summary of such Transaction.
1.2. Singular, plural and gender
References to one Person include all genders and references to the singular include the plural and vice versa.
1.3. Clauses and Headings
Unless otherwise indicated, references to Clauses and Schedules are references to Clauses of, and Schedules to, this Agreement. Headings shall be ignored in construing this Agreement.
1.4. Dates and times
References to dates and times in this Agreement and in documents entered into in connection with this Agreement shall, unless otherwise specified, be construed as dates and times in Singapore.
1.5. Client Classification
The Client will be treated as a Retail Client under the Securities and Futures Act (Cap.289) ("SFA") by default. If the Client wishes to be treated as an Accredited Investor, the Client must submit a duly completed Accredited Investor Declaration Form, acknowledge the prescribed risk disclosures. The protections afforded to Retail Clients under the SFA and its subsidiary legislation will not apply to the Client if the Client is treated as an Accredited Investor.
1.6. Appropriateness Assessment
For certain products the Company may designate from time to time, the Company may be required to assess whether the product is appropriate for the Client, based on the Client’s knowledge and experience. If the Company determines that the product is not appropriate for the Client, the Company may decline to provide the Client with the service or provide the Client with a specific risk warning, which the Client must acknowledge before proceeding. The Client undertakes to provide accurate information for this assessment.
2. The Service
2.1. Request for quote; Quote; Client Order; Acceptance
2.1.1. During the term of this Agreement, provided that the Counterparty has satisfied the know-your-counterparty screening and information requirements of the Company from time to time, the Counterparty may submit a Request to the Company via an Instant Messenger Platform, the Platform, email or other agreed electronic instant messaging service or platform as available from time to time (“Agreed Channel”).
2.1.2. The Company may respond to a Request for quote by providing a Quote via Agreed Channel to the Counterparty.
2.1.3. Following the receipt of a Quote, the Counterparty may submit a Client Order via Agreed Channel to purchase or sell a particular quantity of a specified digital asset at a specified price (whether such price is denominated in a fiat currency or another digital asset) from or to (as applicable) the Company via Agreed Channel.
2.1.4. The Company shall, at its sole discretion, accept (“Acceptance”) or reject (or fail to accept) any Client Order via an Agreed Channel, provided that any Acceptance shall take place prior to the receipt by the Company of any cancellation or modification by the Counterparty of the Counterparty’s relevant Client Order. Where the Company does not accept a Client Order, the Company may, at its sole and absolute discretion, provide a further Quote to the Counterparty.
2.1.5. Subject accordingly to Clause 2.1.7, any Acceptance by the Company shall be considered to be irrevocable and, each of the Parties will be deemed to be entering into a legally binding transaction to buy or sell (as applicable) the legal and beneficial title to, and all rights and interests in, the relevant digital asset free from encumbrances upon such terms and at such price (whether denominated in a fiat currency or another digital asset) as set out, or referred to, in the relevant Client Order or Acceptance (a “Transaction”). All such Transaction will be subject to the terms and conditions of this Agreement and, where applicable, the Platform Rules. To the extent that there is any inconsistency between the Platform Rules and this Agreement, the terms of this Agreement shall prevail. For the avoidance of doubt, any inconsistency among applicable terms shall be settled according to the following order of priority: (a) Trade confirmation sent by the Company (if any); (b) product terms / addendum / schedules applicable to the specific product; (c) this Agreement; and (d) the Platform Rules.
2.1.6. Following the entry into a Transaction, the Company shall send to the Counterparty a summary of the terms of the Transaction as a record of the terms of the Transaction and contain details to identify such Transaction including the following information: (a) the type of digital asset purchased or sold; (b) whether the Company is purchasing or selling such digital asset; (c) the price at which the digital asset is purchased or sold (“Transaction Price”); and (d) the date and time of the Transaction (“Transaction Time”); provided however that any failure to send, or a delay in sending, such summary (or failure to include the specified information above) shall not affect the validity of a Transaction (and shall not entitle the Counterparty to any claims in damages).
2.1.7. Notwithstanding Clause 2.1.5 or any other provisions in this Clause 2, if the Company discovers that any Quote, Client Order, Acceptance and/or summary contained any error in connection with any Transaction which results in an erroneous transaction (including but are not limited to (i) Transaction Prices that are significantly different than prevailing market prices at the Transaction Time; and (ii) Transaction Prices resulting from executions where the Company’s bid was greater than its offer at the same Transaction Time), the Company will notify the Counterparty as soon as reasonably practicable if an erroneous transaction is identified and any Transaction that would have been entered into but for this Clause 2.1.7 shall be deemed null and void or may modify as agreed by the Company at its sole discretion. However, the Company shall not be able to exercise its rights under this Clause 2.1.7 in respect of any Transaction where the consideration due to the Counterparty has already been settled in accordance with Clause 2.2 at the time of discovery of the error by the Company provided that should a Counterparty identify an erroneous transaction before the relevant Settlement Date, Counterparty is obliged to notify the Company of such error promptly, otherwise, the Company, within its sole discretion, may declare such Transaction null and void or may agree to modify such Transaction .
2.1.8. Requests, Quotes, Client Orders and Acceptances may only be submitted, made or received by the Counterparty acting through any one of its Authorised Persons (or through the Counterparty itself or himself). The Company shall be entitled to assume, without independent verification, that a person holding out to be an Authorised Person of the Counterparty on an Agreed Channel is indeed the Authorised Person.
2.1.9. If the Counterparty is an individual and it wishes to appoint an Authorised Person, it shall deliver to the Company a duly executed power of attorney in the form set out in Schedule D or otherwise acceptable to the Company.
2.2. Settlement
2.2.1. Following the entry into each Transaction, in respect of the consideration due from the Counterparty to the Company for the Transaction, the Counterparty shall immediately (which, in the case of Clause 2.2.1(b), shall mean within sixty (60) minutes of entering into the Transaction) pay and deliver (and in any event by no later than the relevant Settlement Date):
(a) such amount of fiat currency in immediately available funds (unless such amount has already been delivered to, and received by, the Company for such Transaction); or
(b) such quantity of the relevant digital asset on the applicable Digital Asset Network,
in each case as applicable to that Transaction to such account, wallet, address, or storage device as designated in Schedule A (or assigned by the Platform or as otherwise agreed in writing by both Parties) (each, a “Company Wallet”). The Counterparty agrees and acknowledges that with respect to any and all wire transfers from Counterparty or on behalf of Counterparty to the Company, the name on the originating account must match exactly the Counterparty name as provided by Counterparty to the Company. And in any event, the Company reserves the right to reject the wire transfer which are deemed suspicious by the Company.
For avoidance of doubt, the delivery will be complete once (a) in the case of digital asset, the transaction is verified by 3 confirmations on the blockchain for the applicable digital asset as reasonably verified by the Company as available to the Company in its designated digital wallet; and (b) in the case of cash, the cash is reasonably verified by the Company as available in its designated bank account.
2.2.2. Following the entry into each Transaction, and conditional on the Company receiving the relevant amount of fiat currency or quantity of digital asset referred to in Clause 2.2.1, the Company shall as soon as reasonably practicable ensure that the following is paid and/or delivered (and in any event by no later than the relevant Settlement Date):
(a) such amount of fiat currency in immediately available funds (unless such amount has already been delivered by the Company to the Counterparty); or
(b) such quantity of the relevant digital asset on the applicable Digital Asset Network,
in each case as applicable to that Transaction to such account, wallet, address, or storage device as designated in Schedule B (or as otherwise agreed by both Parties) (each, a “Counterparty Wallet”).
2.2.3. Where the Company does not receive the consideration from the Counterparty in accordance with Clause 2.2.1 in full, the Company will not need to comply with its obligations in Clause 2.2.2, and the Company shall have the right to terminate the relevant Transaction in the Company’s sole discretion. Digital assets shall be deemed to be received by the Company only upon the block containing the relevant transfer details achieving a block height of such number (determined by the Company acting in good faith) as would represent a definitive transfer.
2.2.4. In connection with any Transaction, if either Party mistakenly transfers an amount of fiat currency or quantity of digital asset to the other Party that exceeds the relevant amount or quantity (as applicable) pursuant to the agreed terms of the Transaction, such excess shall be returned by the other Party to the first Party as soon as reasonably practicable.
2.2.5. The Company reserves the right to appoint a settlement/transaction agent to carry out the transactions set out at Clauses 2.2.1 and 2.2.2 above on its behalf. Such settlement/transaction agent (if appointed) will receive, pay out and/or deliver fiat currency or digital asset (as the case may be) on behalf of the Company and the Parties agree that any such fiat currency or digital asset received, paid out and/or delivered by the settlement agent shall be deemed as received, paid out and/or delivered by the Company itself (as the case may be).
3. Representations and Warranties
3.1. The Company
The Company represents and warrants to the Counterparty, as of the date hereof, the date of each Transaction and on each Settlement Date:
3.1.1. The Company is a company duly organised, validly existing and in good standing under the laws of its incorporation or formation. The Company has all necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by the Company of this Agreement, the performance by the Company of its obligations hereunder and the consummation by the Company of the transactions contemplated hereby have been duly authorised by all requisite company action on the part of the Company.
3.1.2. This Agreement has been duly executed and delivered by the Company and (assuming due authorisation, execution and delivery by Counterparty), this Agreement constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganisation, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally.
3.1.3. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate or breach (i) any material contract to which it is a party or its constitutional documents (if applicable); or (ii) any judgment, order, writ or decree applicable to it.
3.1.4. Neither the Company, nor any Person who controls the Company or any Person for whom the Company is acting as an agent or nominee, as applicable (1) bears a name that appears on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time; (2) is a Foreign Shell Bank; or (3) resides in or whose subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction.
3.1.5. With respect to any digital asset sold by the Company to the Counterparty pursuant to any Transaction, the Company is the lawful owner of such digital asset with good and marketable title thereto, and the Company has the right to sell, assign, convey, transfer and deliver such digital asset. Such digital asset is (or will, on the Settlement Date, be) free and clear of any and all security interests, liens, pledges, claims (pending or threatened), charges, escrows, encumbrances or similar rights.
3.2. Counterparty
The Counterparty hereby represents and warrants to the Company, as of the date hereof, the date of each Transaction and on each Settlement Date:
3.2.1. If the Counterparty is a not an individual: (a) the Counterparty is duly organised, validly existing and in good standing under the laws of its incorporation or formation; (b) the Counterparty has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby; (c) the execution and delivery by the Counterparty of this Agreement, the performance by the Counterparty of its obligations hereunder and the consummation by the Counterparty of the transactions contemplated hereby have been duly authorised by all requisite corporate or equivalent action on the part of the Counterparty; and (d) there has not been any petition or application filed, or any judicial or administrative proceeding commenced which has not been discharged, by or against it relating to bankruptcy, insolvency or compromise with creditors.
3.2.2. If the Counterparty is an individual, the Counterparty has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby, is in good standing (including in its jurisdiction of residency) and there has not been any petition or application filed, or any judicial or administrative proceeding commenced which has not been discharged, by or against it relating to bankruptcy, insolvency or compromise with creditors.
3.2.3. This Agreement has been duly executed and delivered by the Counterparty and (assuming due authorisation, execution and delivery by the Company), this Agreement constitutes a valid and legally binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganisation, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally.
3.2.4. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will result in (a) any violation of, be in conflict with in any material respect, or constitute a material default under, with or without the passage of time or the giving of notice (i) to the extent the Counterparty is a corporation, any provision of the Counterparty’s organizational documents; (ii) any provision of any permit, licence, judgment, decree or order to which the Counterparty is a party, by which it is bound, or to which any of its material assets are subject; (iii) any material contract, obligation, or commitment to which the Counterparty is a party or by which it is bound; or (iv) any laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders and decrees applicable to the Counterparty, or (b) the creation of any encumbrance upon any material assets of the Counterparty;
3.2.5. Neither the Counterparty, nor any Person who controls the Counterparty or any Person for whom the Counterparty is acting as an agent or nominee, as applicable (1) bears a name that appears on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time; (2) is a Foreign Shell Bank; or (3) resides in or whose subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction.
3.2.6. Neither the Counterparty, any Person under common control with the Counterparty, any direct or indirect shareholders of the Counterparty nor any Person on which the Counterparty is acting on behalf of or for the benefit of is:
(a) listed on a Sanctions List;
(b) listed by the Monetary Authority of Singapore as designated individuals or entities defined in the respective regulations promulgated under the Monetary Authority of Singapore Act (Chapter 186) of Singapore, the United Nations Act (Chapter 339) of Singapore or the Terrorism (Suppression of Financing) Act (Chapter 325) of Singapore or such other law, regulation or rule as may be prescribed by the Monetary Authority of Singapore from time to time; or
(c) otherwise the target of any Sanctions List or any sanctions law, regulations, embargoes or restrictive measures (“Sanctions”), as amended from time to time, administered, enacted or enforced by the United Nations, the United States of America, the European Union or any Member State thereof, the United Kingdom, Singapore, Hong Kong, or the respective governmental authorities of any of the foregoing responsible for administering, enacting or enforcing Sanctions, including without limitation, OFAC, the US Department of State, the United Kingdom Treasury or the Monetary Authority of Singapore.
3.2.7. The Counterparty has no knowledge that, nor does it have any reasonable reason to suspect that, any fiat currency or digital asset that it delivers to the Company have been or will be derived from, relate to, or represents any benefit arising in respect of any criminal, illegal or corrupt activities. Further, the Counterparty undertakes that it will not use the proceeds from any Transaction in any manner that will result in a breach of applicable Sanctions, money-laundering, anti-terrorist financing and bribery laws and regulations.
3.2.8. With respect to any digital asset sold by the Counterparty to the Company pursuant to a Transaction, the Counterparty is the lawful owner of such digital asset with good and marketable title thereto, and the Counterparty has the right to sell, assign, convey, transfer and deliver such digital asset. Such digital asset is (or will, on the Settlement Date, be) free and clear of any and all security interests, liens, pledges, claims (pending or threatened), charges, escrows, encumbrances or similar rights.
3.2.9. The Counterparty is the lawful owner of each Counterparty Wallet and has good title thereto. Each Counterparty Wallet is owned and operated solely for the benefit of the Counterparty, and no Person, other than Counterparty, has any right, title or interest in any Counterparty Wallet.
3.2.10. Any Authorised Person appointed by the Counterparty has been duly authorised and appointed by the Counterparty and has the full power to act on behalf of the Counterparty in connection with this Agreement and any arrangements contemplated by this Agreement and any Transaction. The Counterparty indemnifies and holds the Company harmless from any and all claims, liabilities, penalties, losses, damages or costs and expenses which the Company or the Counterparty may incur or suffer in connection with the actions or omissions of any Authorised Person of the Counterparty. The Company shall not need to ascertain or enquire into the terms and conditions on which an Authorised Person is appointed.
3.2.11. Counterparty represents and warrants to the Company that all the documents and information furnished by Counterparty to the Company pursuant to this Agreement are true, accurate and complete in all respects, and there is no matter, event, circumstance or any other information which has arisen which would make any documents and information provided misleading or incomplete, or any fact or information the omission of which would make any documents and information provided misleading or incomplete.
3.2.12. The Counterparty agrees, understands and acknowledges that:
(a) in respect of each Transaction, each of the Counterparty and the Company trades solely on a bilateral and proprietary basis for investment purposes for its own account (and not as agent on behalf of any other Person);
(b) each Counterparty Wallet (i.e. any account, wallet, address, or storage device as designated in Schedule B (or as otherwise agreed by both Parties)) is legally and beneficially solely owned by the Counterparty at all times, including but not limited to immediately prior and after each Transaction;
(c) The Company is not providing and will not provide any fiduciary, advisory, exchange or other similar services with respect to the Counterparty, any Person related to or affiliated with the Counterparty, or any transaction subject to this Agreement;
(d) The Company is not making any representations or warranties in respect of the functionality, usability, tradability, technical specifications or other characteristics of any digital asset or any Digital Asset Network; and
(e) notwithstanding any other provisions in this Agreement, any obligation by the Company to pay, transfer and/or deliver any digital assets to the Counterparty are deemed to be fulfilled in full where the Company has taken all reasonable steps (including the issuance of transfer instructions to the relevant Digital Asset Network) to effect the transfer of such digital assets, notwithstanding any security breaches to any Counterparty Wallet or any malfunctioning or hacking of the relevant Digital Asset Network or any other technological issues. Further, in connection with any Transaction, if, due to causes beyond the Company’s control, the Company is unable to access digital assets in a Company Wallet or otherwise obtain, withdraw, or effect a transfer of the relevant digital assets, the Company shall have the option to terminate and rescind any Transaction, in which case the Counterparty shall be refunded any fiat currency or digital asset received by the Company in accordance with Clause 2.2.1.
(f) Counterparty has such knowledge and experience in financial matters, business and technology, including but not limited to blockchain technology and other considerations relating thereto to be able to evaluate the risks and merits of this Agreement and Transaction(s) to be entered into by Counterparty pursuant to this Agreement and is able to bear such risks.
3.2.13. The Counterparty further agrees, represents and warrants that: (a) the Counterparty is solely responsible for any decision to enter into any Transaction or any other arrangement subject to this Agreement, including the evaluation of any and all risks related to any Transaction and/or relevant digital assets; and (b) in entering into any such transactions, the Counterparty has not relied on any statement or other representation or warranty of the Company other than as expressly set forth herein; and (c) the entry into this Agreement and any Transactions, and the trading of digital assets pursuant thereto, between the Counterparty and the Company will not violate any applicable laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders and decrees (“Laws”) in which the Counterparty is incorporated, located, or domiciled or any other applicable Laws. The Counterparty will seek advice from independent professional advisors where appropriate.
4. General
4.1. Termination
This Agreement shall have an initial term of one year, which shall be automatically renewed on an annual basis. Either Party may terminate the Agreement by providing 5 days’ written notice to the other. The termination or expiration of this Agreement shall not relieve either Party of any rights, obligations and liabilities arising prior to such expiration or termination.
4.2. Confidentiality
Each of the Company and the Counterparty hereby agrees to not disclose, and to otherwise keep confidential, the transactions contemplated hereby, the existence or nature of any relationship between the Parties, the name of the other Party, the fact that the Parties engaged in any transaction or the terms of those transactions, or the terms of this Agreement (together, “Confidential Information”), provided, however, that each Party may disclose Confidential Information to its directors, officers, members, employees, agents, affiliates, and professional advisers on a need-to-know and confidential basis (and provided that the relevant disclosing Party remains responsible for any breach by such of its directors, officers, members, employees, agents, affiliates, and professional advisers). If either Party is required by law, rule or regulation, or advised by legal counsel to disclose such information (the “First Party”), the First Party will, to the extent legally permissible and reasonably practicable, provide the other Party (the “Second Party”) with prompt written notice of such requirement so that the Second Party may seek an appropriate protective order or waive compliance with this Clause 4.2. The restrictions in this Clause 4.2 shall not operate to prevent the Company from disclosing aggregate trade volumes over certain periods of time to a third party who may have introduced the Counterparty to the Company. The confidentiality obligations set forth in this Clause 4.2 shall survive for 3 years following any termination or expiration of this Agreement.
4.3. Liability
To the fullest extent permitted by applicable law, the Company will not be liable for any special, indirect, incidental, punitive, consequential, exemplary or similar damages or for loss of profits, and in no event will the aggregate liability of the Company in relation to any Transaction exceed the consideration (as denominated in the relevant fiat currency or digital asset) owed by it to the Counterparty in respect of that Transaction.
4.4. Force Majeure
Each Party shall not be liable for delays or errors occurring by reason of circumstances beyond its control, including but not limited to war (declared or undeclared), terrorist activities, acts of sabotage, blockade, fire, lightning, acts of god, national strikes, riots, insurrections, civil commotions, quarantine restrictions, epidemics, earthquakes, floods, hurricanes, explosions, third party system instability or failure and regulatory and administrative actions or delays. In the event of such force majeure, each Party shall take reasonable steps to minimize interruptions and loss but shall have no liability caused by or incidental to such force majeure.
4.5. Set-off
The Company shall have the right to set set-off any obligation of the Counterparty owing to the Company (whether or not arising under this Agreement, whether or not matured, whether or not contingent, and regardless of the currency, place of payment or booking office of the obligation) against any obligation of the Company owing to the Counterparty. The Counterparty shall not have the right to set-off.
4.6. Amendments and Waivers
The provisions of this Agreement may be amended only if the other Party has consented in writing to such amendment, action or omission. No such consent with respect to any such action or omission shall operate as a consent to, waiver of, or estoppel with respect to, any other or subsequent action or omission. No failure to exercise and no delay in exercising any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy or power provided herein or by law or at equity.
4.7. Assignment
This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors, heirs, personal representatives, and permitted assigns. The Counterparty may not assign or delegate its rights or obligations hereunder without the prior written consent of the Company, which may be withheld in the Company’s sole discretion. The Company may assign its rights and obligations to an affiliate of the Company upon notice to the Counterparty.
4.8. Severability
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
4.9. Governing Law & Dispute
4.9.1. This Agreement shall be governed by and construed in accordance with the laws of Singapore.
4.9.2. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in Singapore in accordance with the UNCITRAL Arbitration Rules for the time being in force.
The arbitration shall be administered by Singapore International Arbitration Centre ("SIAC") in accordance with its Practice Note on UNCITRAL cases.
The appointing authority shall be the President or Vice-President of SIAC Court of Arbitration.
The number of arbitrators shall be one (1).
The language to be used in the arbitral proceedings shall be English.
4.9.3. Notwithstanding the foregoing, if the Client are an individual or a sole proprietorship, the Client have the right to refer any dispute which falls within the jurisdiction of the Financial Industry Disputes Resolution Centre ("FIDReC") to FIDReC for resolution in accordance with its rules. This arbitration clause shall not prevent the Client from referring a qualifying dispute to FIDReC or the Singapore Small Claims Tribunals.
4.10. Complaints Handling
If the Client has a complaint with the Company, please contact the Company at complaints@hashkey.com. The Company will send the complainant an acknowledgement of receipt of their complaint within one (1) week following the day it was received. The Company will aim to provide the complainant with a written reply within four (4) weeks from the date the complaint is received. A final response will be issued within two (2) months from the date the complaint is received. The aforesaid timeline is an indicative only and not a commitment, as the processing of a complaint may be subject to various factors, such as the complexity of the complaint and any subsequent communications with the complainant for the purpose of seeking further information or clarification.
4.11. Entire Agreement
This Agreement, together with Electronic Access and Trading Addendum attached hereto, Requests for Quote, Quotes, Client Orders and Acceptances (or such other documents executed in connection with any Transaction) executed on or after the date hereof, contain the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, written or oral, among the Parties with respect thereto, and all such prior agreements between the Parties are hereby terminated by mutual agreement.
4.12. Counterparts
This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be an original, but all such counterparts taken together shall constitute one and the same instrument.
4.13. Notices
Any notice, communication or demand to be given or made pursuant to this Agreement shall be in writing and in English and shall be deemed to have duly given or made (i) when delivered by hand, when left at the address set out in this Clause 4.13; (ii) when sent via courier by a reputable international courier, 3 Business Days after the date it was posted to the address set out in this Clause 4.13; and (iii) when sent by email, when sent to the e-mail address set out in this Clause 4.13 (in each case as may be updated in writing pursuant to this Clause 4.13 by one Party to the other Party).
(a) If to the Company, to:
Address Hashkey Technology Services Pte. Ltd.
3 Church Street
#28-06, Samsung Hub
Singapore (049483)
Attention OTC Team
Email otc_onboarding@hashkey.com
(b) If to the Counterparty, to:
Address [*]
Attention [*]
Email [*]
4.14. Contracts (Rights of Third Parties) Act
Any Person who is not a Party (other than our successors or permitted assigns) shall have no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) of Singapore to enforce any provisions of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
For and on behalf of
HASHKEY TECHNOLOGY SERVICES PTE. LTD.
By:
Name: Jason Tay
Title: Authorised Signatory
For and on behalf of
[COUNTERPARTY’S FULL LEGAL NAME]
By: ______________________________
Name: [COUNTERPARTY’S FULL LEGAL NAME]
Schedule A
The Company’s USD Bank Account
To be notified by the Company to the Counterparty from time to time.
Schedule B
Counterparty’s USD Bank Account and Instant Messenger Platform
USD Wire Instructions
Beneficiary Bank:
Beneficiary Bank Address:
SWIFT:
Routing Number:
Beneficiary Name on Account:
Beneficiary Address:
Account Number / IBAN Number:
Intermediary Bank (if available):
Intermediary Bank Address (if available):
Intermediary Bank SWIFT (if available):
Instant Messenger Platform and Username: [*]
Schedule C
Authorised Persons
Initial list of the Counterparty’s Authorised Peron(s) (If applicable)
• [Full name]
Schedule D
Power of Attorney
(For use where the Counterparty is an individual and appoints an Authorised Person)
Date: ………………………
Pursuant to this Power of Attorney, which is signed, sealed and delivered as a deed:
I, [Counterparty’s full legal name], of [address],
do hereby appoint:
[Authorised Person’s full legal name] (“Agent”) of [Authorised Person’s address],
as my true and lawful attorney in fact and my agent, to act for me in my name, place and stead and on my behalf to enter into any Transactions, documents, deeds, notices, arrangements, decisions, to act as my Authorised Person, to issue, submit or respond to any instructions, Requests for Quote, Quotes, Client Orders and Acceptances, and to take such further actions, in each case in connection with the Master Service Agreement entered into between HashKey Technology Services Pte. Ltd. (the “Company) and myself dated on or around …………………... and as may be amended from time to time (“Master Service Agreement”).
Capitalised terms that are not otherwise defined in this Power of Attorney shall have the meanings given to them in the Master Service Agreement.
I further declare and agree that:
(a) a copy of this Power of Attorney be furnished to the Company;
notwithstanding the appointment of, and authorisation given to, my Agent above (and any other Authorised Person), I may still communicate with the Company personally. In the event of any inconsistency, the Company shall have the absolute discretion to act upon, or rely on, any communication received from me or from my Agent (and from any other Authorised Person), and the Company shall not be liable for any loss whatsoever and howsoever arising;
(b) the Company shall be under no liability whatsoever in respect of any loss or damage which I may suffer or incur as a result of the acts or omissions of my Agent or the appointment of the Agent, and I shall indemnify and hold the Company harmless from any and all claims, liabilities, penalties, losses, damages or costs and expenses which I or the Company may incur or suffer in connection therewith; and
(c) the Company is not obliged to ascertain or enquire into the terms and conditions on which my Agent is appointed.
This Power of Attorney shall be effective on the date first written above and shall continue until the Company confirms receipt of any written revocation issued by me to the Company in writing.
Whenever possible, each provision of this Power of Attorney will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Power of Attorney is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Power of Attorney.
This Power of Attorney shall be governed by the laws of Singapore.
Signed, sealed and delivered
as a deed by: [Counterparty signature]
[Counterparty’s legal name]
[Legal: Must be physically (not electronically) signed.]
Addendum: Singapore-Specific Disclosures
1. Introduction
1.1. This addendum (“Addendum”) applies in relation to the Master Service Agreement between yourself and HashKey Technology Services Pte. Ltd (“HTS”). Unless otherwise defined in this document, capitalised terms shall have the same meaning as used in the Master Service Agreement entered into between yourself and HTS. In this Addendum, “you”, “your”, and any other cognate terms are a reference to such a customer in Singapore. Where there is an overlap and/or conflict between the terms of the Agreement and the Addendum or where the terms of the Agreement are silent on a particular matter, but such matter is covered by the terms of this Addendum, the terms set out in this Addendum shall prevail.
1.2. This Addendum contains the Singapore-specific disclosures with which HTS must comply with as a matter of its obligations under the Payment Services Act 2019 (“PS Act”), the Payment Services Regulations (“PSR”), and the notices and guidelines promulgated thereunder. These obligations arise as HTS is a Major Payment Institution (“MPI”) licensed by the Monetary Authority of Singapore (“MAS” or the “Authority”) for the provision of Digital Payment Token (“DPT”) Services under the PS Act. These obligations include the requirement to adopt customer asset segregation and safeguarding measures to ensure the safety of customer assets (including DPTs).
2. Safeguarding of “Assets” Received from Customers
2.1. Under regulation 18B of the PSR, HTS is subject to the requirement to ensure that, no later than the next business day after any “assets” are received from you or on your account, the whole or such part, as may be prescribed, of the “assets” are safeguarded.
2.2. For these purposes, “assets”, in relation to HTS, includes Digital Payment Tokens (“DPTs”) that are beneficially owned by a customer of HTS such as yourself, but does not include money. HTS safeguards your assets (including DPTs) by depositing them in custody accounts held on trust for you that are maintained by HTS itself or with a third-party and independent safeguarding institution (the “Safeguarding Institution”). The safeguarding institution with whom HTS maintains the custody accounts is HashKey Xpert Limited, a trust or company service provider (TCSP) license holder in Hong Kong.
2.3. HTS will store your assets in both hot wallets, which are connected to the internet, and cold wallets, which are off-line and secure against any online attacks. HTS stores a percentage of your digital assets in hot wallets to allow for immediate access of assets for trading and withdrawals. HashKey Xpert Limited secures insurance to protect the assets in both hot wallets and cold wallets from theft or fraud, and no more than 10% of the total assets of our customers are kept in hot wallets. This does not change either your access to or your right to withdraw any or all of your assets at any time, nor does it change or impact HTS’ obligations to fully safeguard all your assets.
2.4. In case of any loss of your assets arising from fraud or negligence on the part of HTS:
(A) Please contact HTS immediately through our website. HTS will consider your complaint based on the information provided by you and will endeavour to respond with a written decision addressing the issues raised within two (2) months from the date the complaint is received.
(B) If the complaint remains unresolved, you may escalate your complaint via the dispute resolution process set out in Section 4.9.2 of the Agreement.
(C) The quantum of the offer of resolution, or any analogous compensation for your lost assets, will be capped at the value of the assets that were lost as a result of the disputed transaction(s). HTS determination of the value of the assets that were lost will be final and binding. This compensation may be adjusted for any contributory negligence, act, or omission on your part.
(D) HTS will not be liable for the types of losses set out under the Section 4.3 of the Agreement. For the avoidance of doubt, HTS is not liable for any loss that you may sustain if you have been fraudulent or negligent, including where: (i) you have carried out any transaction on the instructions of a third party (or have allowed a third party to remotely access or share your computer while logged in to your account); or (ii) your login credentials were compromised.
2.5. The laws and practices relating to trust accounts in the jurisdiction under which the Safeguarding Institution is licensed, registered or authorised may be different from the laws and practices in Singapore relating to trust accounts, any such differences may affect your ability to recover the assets deposited in the trust account.
2.6. The assets may be stored in devices which may be located in a foreign jurisdiction. The laws and practices in the foreign jurisdiction may be different from the laws and practices in Singapore, and any such differences may affect your ability to recover the assets.
2.7. Unless otherwise agreed upon:
(A) any instruction to and from HTS regarding your assets will be given through the HashKey OTC platform; and
(B) HTS does not permit your giving of authority to another person to give or receive instructions from HTS.
2.8. In the event that HTS becomes insolvent, you may not be able to fully recover your assets (including DPTs) that are held in custody accounts maintained by HTS itself. Similarly, if the Safeguarding Institution becomes insolvent, you may not be able to fully recover your assets (including DPTs) that are held in custody accounts maintained with the Safeguarding Institution. In either case, any shortfall in the assets (including DPTs) may be shared among you and other customers of HTS (and/or where applicable, the customers of the Safeguarding Institution).
2.9. The terms and conditions that HTS has agreed with Safeguarding Institution that would apply to its safeguarding of HTS’ customers’ assets (including DPTs) are:
(A) The Safeguarding Institution is responsible for the safekeeping of the assets and the Safeguarding Institution shall be responsible:
a. to hold the assets in separate accounts in its books, to arrange for the customer assets to be deposited in the Wallet or otherwise held by or to its order as it may think proper for the purposes of providing for their safekeeping, and to record the amounts and locations thereof;
b. to provide periodical reports, transaction advice and/or statements of accounts relating to the assets; and
c. in the event of termination of this Agreement, to deliver or transfer the assets to the HTS or to such other person(s) as the HTS shall instruct within thirty (30) days of receipt of the notice, net only of any outstanding liabilities attaching to the assets of which the Safeguarding Institution is or becomes aware and of any Fees and expenses owed to the Safeguarding Institution.
Further, HTS will, subject to the regulatory requirements effective from time to time, take steps to ensure that:
(A) All assets (including DPTs) belong to HTS’ customers deposited in the custody account are held on trust by HTS for its customers.
(B) The Safeguarding Institution must not claim any lien, right of retention or sale over any asset (including digital payment tokens) standing to the credit of the custody account, except —
(i) where HTS has obtained the customer’s written consent and notified the Safeguarding Institution in writing of the written consent; or
(ii) in respect of any charges as agreed upon in the terms and conditions relating to the administration or custody of the asset (including DPTs); and
(C) the account is designated as a trust account, or a customer’s or customers’ account, which is distinguishable and maintained separately from any other account maintained with Safeguarding Institution in which HTS deposits its own assets (including DPTs).
2.10. Unless we have informed you of any contrary arrangements, the DPTs received from you will be deposited in a custody account together with, and comingled with, the assets (including DPTs) received by HTS from its other customers.
2.11. As your assets (including DPTs) may be commingled with those of other customers of HTS in the same custody account maintained by HTS or with the Safeguarding Institution, your interest in the assets may therefore not be identifiable (although HTS will maintain records of your interest in the assets that have been commingled). HTS does not generally support any method which presently exists or which may hereafter be developed, to associate certain DPTs or other cryptocurrencies with any particular metadata, and you acknowledge and agree that where any such DPTs/cryptocurrencies are delivered to HTS, any associated metadata may be lost, and HTS has no liability for any losses in relation thereto. HTS will receive, keep and administer the assets on a fungible basis and to re- deliver the assets not in specie but of the same denomination. There is a risk that your assets may be used to meet the default of other customers such that you may potentially be exposed to the losses of HTS’ other customers. In the event that there is a shortfall of assets (including DPTs) in the custody account, there is a risk that you may not recover all assets that are held for you.
2.12. You shall retain full and exclusive ownership over all assets, including any entitlements, rights of exercise, and powers that accrue to you in connection with the ownership thereof.
2.13. HTS will provide you with a statement of account containing, where applicable, the following particulars, electronically:
(A) transactions to purchase or sell assets entered into by you and the price at which the transactions are entered into; and
(B) the balances of assets held for you.
2.14. Unless otherwise agreed, HTS does not require you to provide any assets as collateral for the service provided by HTS.
3. Safeguarding of “Relevant Money” Received from Customers
3.1 Under section 23 of the PS Act read with regulation 16(1) of the PSR, HTS will be subject to the requirement to ensure that, no later than the next business day after any “relevant money” is received from you or on your account, the whole or such part, as may be prescribed, of the “relevant money” is safeguarded. For these purposes, “relevant money”:
3.1.1 means any money that is received by HTS from you, or on your account, in respect of the provision of its DPT Services, and that HTS continues to hold at the end of each business day;
3.1.2 does not include all of the following —
(i) any money paid to HTS to reduce the amount owed to HTS by you;
(ii) any money that is repaid by HTS to you;
(iii) any money which is paid to HTS, or which HTS has informed you will be used, to defray any fee or charge imposed by HTS for providing any payment service to you;
(vi) any money paid to any other person that is entitled to the money.
3.2 With reference to regulation 16(4) of the PSR, you hereby agree with HTS that all interests earned from the maintenance of relevant moneys received by HTS from you, or on your account, in a trust account does not accrue to you. In other words, all such interests shall be retained by HTS and to avoid doubt shall not constitute “relevant money” liable to be safeguarded under section 23 of the PS Act.
3.3 HTS safeguards your relevant money by depositing the relevant money in a trust account maintained with a safeguarding institution. The safeguarding institution with whom HTS maintains this trust account is Standard Chartered Bank (Singapore) Limited (“SCB”), a Qualifying Full Bank in Singapore.
3.4 The relevant money received from you will be deposited in a trust account together with, and commingled with, the relevant money received by HTS from its other customers.
3.5 As your relevant money is commingled with those of other customers in the same trust account maintained with SCB, there is a risk that you may potentially be exposed to the losses of HTS’ other customers.
3.6 In the event that SCB becomes insolvent, you may not be able to fully recover the relevant money held in the trust account. Any shortfall in the relevant money may be shared among you and other customers of HTS (and/or the customers of SCB).
4. Fees and charges
4.1 In order that you, as a customer or potential customer of HTS, would have notice of the following information before using any payment service provided by HTS, HTS notes as follows.
4.2 The exchange rate which HTS is offering in respect of any purchase or sale of a digital payment token will be displayed to you prior to entry into any trade.
4.3 Unless otherwise notified to you in writing prior to any transaction, HTS does not:
(A) charge separate fees apart from the exchange rate for the provision of its DPT Services; or
(B) charge you for holding your assets in custody accounts.
5. Normal business days and hours
5.1 Our normal business days and hours are 9:00am to 6:00pm on all days (other than a Saturday, Sunday or a public holiday in Singapore) on which commercial banks generally are open for the transaction of business in Singapore (“Singapore Business Day”). Any changes thereto will be published and updated at HTS’ Website from time to time. You agree that such publication shall be sufficient notice to you of our normal business days and hours, and any changes to the same. In the event of any discrepancy, the business hours as stated on HTS’ website will prevail.
5.2 HTS will maintain personnel at its permanent place of business in Singapore to address any queries or complaints on each Singapore Business Day between 9:00am and 6:00pm.
6. Risk Warning on Digital Payment Token Services
The Monetary Authority of Singapore (MAS) requires us to provide this risk warning to you as a customer of a digital payment token (DPT) service provider.
Before you:
(a) pay your DPT service provider any money or DPT; or
(b) pay a third party any money or DPT under an arrangement by your DPT service provider,
you should be aware of the following.
1. Your DPT service provider is licensed by MAS to provide DPT services. Please note that this does not mean you will be able to recover all the money or DPTs you paid to your DPT service provider or any other third party referred to above , if your DPT service provider’s or the third party’s business fails.
1A. You should be aware that MAS does not supervise or regulate your DPT service provider for the provision of unregulated services. This includes any service of trading digital payment token derivatives such as futures.
2. You should not transact in the DPT if you are not familiar with this DPT. This includes how the DPT is created, and how the DPT you intend to transact is transferred or held by your DPT service provider.
3. You should be aware that the value of DPTs may fluctuate greatly. You should buy DPTs only if you are prepared to accept the risk of losing all of the money you put into such tokens.
4. You should be aware that your DPT service provider, as part of its licence to provide DPT services, may offer services related to DPTs which are promoted as having a stable value, commonly known as “stablecoin”.
Schedule of Risk Disclosures
The Client acknowledges that the Client has read, understood, and accepted the Risk Disclosures set out in Singapore-Specific Disclosures before entering into this Agreement. The Client understands that the value of Digital Payment Tokens may fluctuate greatly and the Client is prepared to accept the risk of losing all money the Client has put into such tokens.
For and on behalf of
[COUNTERPARTY’S FULL LEGAL NAME]
By:
Name: [ ]
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