These Terms of Service ("Terms")set out the conditionsunder which Bitafex PTY LTD (the "Company")offer the use of itstrading and payment platform (the "Platform") toUsers.
Please read these Terms carefully. Your useof the Platformindicates your acceptance of and agreement with these Terms.
The Platform, managed by the Company, is anelectronic softwareservice for trading cryptographic unique software Tokens("Tokens")with other users of the Platform ("Users").
The Company reserves the right, at its solediscretion, tochange, add or remove portions of these Terms, at any time. Youwill be notifiedof such changes two business days in advance through yourAccount and upon suchnotification it is your responsibility to review theamended Terms.
Your continued use of the Platform,including by givingInstructions or entering Transactions, following theposting of changes willmean that you accept and agree to the changes. Youagree that all subsequentInstructions given by you and Transactions entered byyou will be subject to theTerms then in effect. As long as you comply withthese Terms as modified fromtime to time, the Company grants you a personal,non-exclusive, non-transferable, non-sublicensable, limited right to enter anduse the Platform
Your acceptance of these Terms, as amendedfrom time to time,gives the Company a mandate to bring together Users to tradeon the Platformaccording to the following clauses as well as perform thefunctions describedherein.
HIGH RISK INVESTMENT WARNING: Holding andtrading Tokens carriesa high level of risk and may not be suitable for allinvestors. Before decidingto hold or trade Tokens you should carefullyconsider your objectives, financialsituation, needs and investment experience.The value of Tokens may rise orfall, and will be affected by matters outsideof the Company's control. Bytrading or holding Tokens, you could sustainlosses of all of your investedfunds.
1. Use of the Website and Platform:Jurisdictional Limits
The information in this website and the useof the Platform isnot intended for any person who is not an Australianresident and is not madeavailable to any person in any jurisdiction where itsdistribution or use wouldbe contrary to any law or regulation. Nothing in thiswebsite or the Platformshould be considered an offer or solicitation to buy orsell any service orproduct to any person in any jurisdiction where such offeror solicitation wouldbe unlawful.
2. Company's Authority
The Company is not a principal in anyTransaction. In giving anInstruction, the User appoints the Company as itsagent to match the User'sInstructions to buy or sell the specified Tokens atthe price nominated by theUser against Instructions from other Users.
Upon matching, all Transactions will besubject to immediatesettlement and delivery, and any Instruction isirrevocable authority from theUser to the Company to access the User's Accountto settle the Transaction anddeduct any Commission or Fee or other amountowing to the Company under theseTerms or for any other reason.
The Platform is available only toAustralian Users and is notoffered or available to any person who residesoutside of Australia.
The Company is not licensed as anAustralian Financial ServicesLicensee and it does not offer general orpersonal financial advice. Nothing inthis website is intended to be or shouldbe taken as financial, legal ortaxation advice. Users should seek their ownfinancial, legal, tax and accountingadvice as to the likely outcomes for themof trading Tokens.
3. Who May Be a User of the Platform
A User must be an Australian residentindividual or businesswhich has met the Company's Account opening procedures,including, if required,any client verification procedures, and which isauthorized to use the Platformby the Company. The Company retains absolutediscretion in determining who maybe a User of the Platform and may cease toallow a User to transact through thePlatform at any time without priornotification. The Company shall have absolutediscretion in accepting orrejecting an application to be a User or anyInstruction.
Users agree to provide the Company withaccurate, current andcomplete information about themselves as prompted by theregistration process,and keep such information updated.
4. Users' Accounts
Users are responsible for maintaining theconfidentiality oftheir Account information, including their password, and forall activityincluding Instructions and Transactions which occur on theirAccount. Usersagree to notify the Company immediately by email of anyunauthorized use oftheir Account or password, or any other breach of security.The Company will notbe liable for any loss a User may incur as a result ofunauthorized use of thatUser's Account's credentials. Users will be heldliable for losses incurred bythe Company or any other User of the Platform dueto someone else's unauthorizeduse. Users shall not use any Account other thantheir own or access the Accountof another User at any time. Users may notattempt to gain unauthorized accessto the Platform, and any attempt to do soor to assist others (Users orotherwise) to do so, or distribution ofinstructions, software or tools for thatpurpose, will result in the accountsof such Users being terminated, and thisdoes not limit the right of theCompany to take any other action against you.
Users may not create or use any Accountother than their own. Fora User to be exempt from any of these rules, the Usermust request express andprior permission from the Company. The creation or useof multiple Accountswithout obtaining such prior express permission from theCompany will lead tothe immediate suspension of all User Accounts on thePlatform, as well as allpending trades.
A User's ability to deposit and withdrawinto its Account may beregulated by applicable know-your-customer oranti-money laundering lawsincluding the Anti-Money Laundering - CounterTerrorism Financing Act 2006 (Cth)and its rules and regulations. The Companymay restrict Transactions that mayviolate those laws or its internal KYC-AMLpolicies. The Company's KYC-AMLpolicy is located on its website. The Companymay restrict any Transaction thatis flagged as a suspicious activity by theCompany's internal processes and/orfile suspicious activity reports on flaggedTransactions.
All Deposited Currency credited to User'sAccount will bemaintained in trust in a bank account with a reputableAustralian deposit-takinginstitution under the Company's name or in the nameof a custodian appointed bythe Company. Such account may be segregated foreach User or be a pooled accountcontaining funds of multiple Users of theCompany's products. The Companyretains absolute discretion to determinewhether to use segregated or pooledaccounts and the Company retains the rightto switch between segregated orpooled accounts without approval from a User.However, if the Company maintainsUser Accounts in a pooled account, it willensure that proper procedures aremaintained at all times to identify theassets of each User. Regardless ofwhether pooled or segregated accounts areused, at no time will the Company mixits own funds with assets held in a UserAccount.
All User Accounts denominated in DepositedCurrency may beconverted to Tokens upon a User's entering Transactions throughthe Platform.The Tokens in a User's Account may only be transferred to otherUsers throughthe procedures of the Platform's electronic trading platform orwithdrawnaccording to the Company's procedures.
Although Tokens are held by the Company onUser's behalf, theUser remains the absolute beneficial owner of the number ofTokens which areidentified in the User's Account. The Company will maintainstrict procedures toensure that the correct number of Tokens are recorded asthe property of therelevant User, as well as adopting security measures toprevent Tokens beingmisused, misplaced, misappropriated or stolen.
5. Account Transfers
Users acknowledge that:
(a) The networks by which Token transfersoccur are outside ofthe Platform. The Company gives no guarantee of and takesno liability for thesecurity of the Token transfer network. Losses of Tokensmay occur due to use ofthe Token transfer network which are outside of thecontrol of the Company;
(b) The speeds of the Token transfernetworks are outside of thecontrol of the Company. It may take some days for atransfer of Tokens to aUser's Account (deposit) to be received by thePlatform, or for a transfer ofTokens from a User's Account (withdrawal) to beeffected. The Company is notliable for any consequences of failures of Tokendeposits or withdrawals to beeffected in a timely manner.
The Company is not obliged to accept anydeposit of Tokens orDeposited Currency to any Account.
6. Execution Policy
In general, the Company will executeTransactions in the order inwhich they are placed by Users, but having regardto the price at which theInstructed Transaction is placed. However, theCompany reserves the right to putInstructed Transactions on hold, or only fillthem in part. This would usuallyoccur where the Instructed Transaction islarge and /or there is insufficientdemand from other Users to transact in thatvolume or at that price.
7. Fees and Commissions
The User acknowledges that the Company maycharge Fees in respectof the Account and Commissions on Transactions. SuchFees and Commissions areset out in the Company's website and may be updatedfrom time to time by theCompany. Any updated Fees and Commissions apply fromthe date that the updatedFees and Commissions are set out on the Company'swebsite. The Company willendeavor to notify Users through their User Accountsin advance of any changesto Fees or Commissions.
The Company is authorized to deduct fromthe proceeds of anyTransaction or from a User's Account the Commission payablein respect of anyTransaction and any other Fees levied upon the User'sAccount.
8. Limitations on the Use of the Platform
The Company in its absolute and solediscretion may: 1) restrictthe number of open Instructions a User may have onthe Platform at any one time;2) restrict the ability of a User to change orcancel a posted Instruction perany unit of time; 3) periodically define theincremental values for Instructionson the Platform; and 4) cancel in whole orin part Instructions that do notadhere to these limitations.
9. The Company's Obligations
The Company warrants and represents:
- it will use all reasonable care and skillin facilitating thematching of Instructions of the Users via the Platform toconclude Transactions.
- the trading price for a Transaction iscalculated on the basisof actual matched offers made by other Usersparticipating in the biddingprocess on the Platform combined with theapplicable Company's commission (ifany).
- it shall comply with the laws andregulations relating tooffering the Platform in Australia.
10. User's Obligations and Acknowledgements
The User acknowledges that once anInstruction is placed it isirrevocable, and once a Transaction is matched, itwill proceed immediately tosettlement and delivery through the Platform. TheUser acknowledges that, when aTransaction is entered, the Platform sends andreceives the Tokens from thebuyer's and the seller's respective Accounts.
It is the User's responsibility and theUser undertakes to ensurethat it holds sufficient Deposited Currency and/orTokens in its Account to meetits settlement obligations and any otherliabilities arising from anyTransaction, including sufficient DepositedCurrency to meet the Commission. Inaddition, the User undertakes to ensurethat it retains in its Accountsufficient Deposited Currency to meet anyregular Fees payable on the Account.
The User represents and warrants that:
(i) it will only operate an Account and usethe Platform to performtrades of Tokens for the purposes and in accordancewith the conditions setforth in these Terms
(ii) it is duly authorized and has thecapacity to provide eachInstruction and enter into each Transaction on thePlatform
(iii) it is a resident of Australia
(iv) it will comply with all applicablelaws of Australia and anyother jurisdiction in which or from which it seeks tooperate its Account, giveInstructions or enter Transactions
(v) all amounts deposited into its Account(other than through Transactions),whether as Tokens or Deposited Currency,come from legal sources which the Userowns or otherwise has full legalauthority to deal with
(vi) the User's use of the Platform,provision of Instructions orentering any Transaction does not infringe therights of any third party or anyapplicable law.
The User will not:
(i) use the Platform to perform any illegalactivity of any sort,including, but not limited to, money laundering orterrorism financing; or
(ii) use the Platform to perform payment ofany ransomware,including, but not limited to cryptolocker; or
(iii) give any Instruction or enter anyTransaction or do orundertake any other activity, whether or not through thePlatform, which wouldor may negatively affect the performance of the Platformor the reputation ofthe Company.
The User confirms that in using the Platformand holding andtransacting in Tokens, it has considered the risks posed bysuch actions,including the risks that:
- The value of Tokens may rise or fall
- The value of Tokens will be affected byfactors outside of thecontrol of the Company
- The value of Tokens may be affected bynew Tokens being createdor developed or other forms of digital currencies orsimilar commodities beingdeveloped
- Tokens may not be transferrable oraccepted for transfer by anythird party
- Tokens may not be accepted as payment forgoods and services byany person
The User is responsible for any taxliability arising from itsholding or Transactions in Tokens and will indemnifythe Company where theCompany is obliged to pay tax on behalf of the User inrespect of the User'sAccount or any Token held, or bought or sold by the User.
11. Intellectual Property
All intellectual property rights vested intexts, images or anyother content found on or related to the Platform areowned by the Company.Accordingly, Users may not copy, distribute, reproduce,republish, upload,transmit, modify, post, frame-in or otherwise use in any wayany such contentwithout the prior express authorization of the Company.
The Company's property or that of ourvendors or licensors isprotected by patent, trademark and/or copyright laws ofAustralia and may not beused without the Company's express written consent.
The Company may take any action availablein law or equity toprotect its intellectual property and to remedy any breachor potential breachof its rights, including by seeking an injunction toprevent a breach of itsrights.
12. Website Commentary
The website may include commentary andinformation on Tokens, themarket for Tokens, uses for Tokens and otherinformation, interactive tools,quotes, reports and data concerning Tokens andtrading in Tokens and othersubject matter. Some of this information may besupplied by entities notaffiliated with the Company (Third Party Information).To the maximum extentpossible, the Company will identify and attribute allinformation sourced fromthird parties. The Company does not explicitly orimplicitly endorse or approvethe Third Party Information. While the Companytakes reasonable steps to ensurethat the Third Party Information on its websiteis correct and up to date, theCompany does not verify or validate suchinformation and takes no responsibilityfor its content or any consequence ofany person placing reliance on the ThirdParty Information. The Company is notobliged to remove or update such ThirdParty Information where it becomes awarethat it is incorrect, misleading orincomplete.
The User indemnifies the Company and eachof its directors, officers,shareholders, advisers, consultants, agents andcontractors (each a"Company Indemnitee") against all liabilities,claims, losses andexpenses (Losses) which may be incurred or suffered by theCompany Indemniteedirectly or indirectly arising out of any failure by theUser to maintainsufficient Deposited Currency or Tokens in its Account orotherwise for failingto meet its obligations under these Terms. Such Lossesmay include legal feesincurred in defending or responding to such Losses andconsequential losses.This indemnity will apply regardless of whether a Transactionwas entered inerror, but will not apply to the extent that Losses wereincurred or suffered bya Company Indemnitee due to its own fraud or willfuldefault.
To the extent permitted by law, none of theCompany or theCompany Indemnitees will be held liable for any damages, losses,costs, loss ofprofit, loss of revenue, loss of business, loss of opportunity,loss of data, orany other direct, indirect or consequential loss to any personincluding theUser arising out of use of the Platform, the Company acting onany Instruction,any Transaction, any failure of the Platform, any failure orlack of anysecurity measures or for any other reason, except to the extent ofthe Company'sfraud or willful default. The Company shall not be liable for anyperceived lossas a result of cancelling in whole or in part a User'sInstructions.
The Company will not be held liable for anymalfunction,breakdown, delay or interruption to the Internet connection, or iffor anyreason the Platform is unavailable at any time or for any period. TheCompanymakes no representation that its website or the Platform is free fromerrors,viruses, worms or other technical anomalies which may cause problems ordamageto User's own computer hardware or software, and the Company acceptsnoliability for such errors, viruses or worms.
While the Company takes appropriatemeasures to ensure thewebsite, the Platform and all of the Company's systemsare properly secured andprotected against attack, it gives no warranty thatits security systems areimpregnable and loss of Tokens and Deposited Currencyheld on behalf of Usersand data referring to or belonging to Users may occur.
Where the Company's website contains linksto other sites andresources provided by third parties, these links are providedfor yourinformation only. We have no control over the contents of those sitesorresources, and accept no responsibility for them or for any loss or damagethatmay arise from your use of them.
In the case of fraud or other suspiciousactivities, the Companywill report all necessary information, including names,addresses and all otherrequested information, to the relevant authoritiesdealing with fraud andbreaches of the law. Users recognize that their Accountmay be frozen at anytime at the request of any competent authorityinvestigating a fraud or othersuspicious activity.
Nothing in these terms excludes or limitsthe liability of eitherthe Company or the User for fraud, or any otherliability which may not by lawbe limited or excluded.
Subject to the foregoing, the Company'saggregate liability inrespect of claims based on events arising out of or inconnection with a User'suse of the Platform, whether in contract or tort(including negligence) orotherwise, shall in no circumstances exceed thegreater of either (a) the totalamount held in the User's the Platform Accountfor the User making a claim lessany amount of commission that may be due andpayable to the Company in respectof such account; or (b) 125% of the value ofthe Transaction(s) that are thesubject of the claim less any amount ofcommission that may be due and payableto the Company in respect of suchTransaction(s).
A User may close its Account at any time bynotification to theCompany in the form determined by the Company
The Company may suspend or terminate aUser's Account at any timeimmediately upon written notice to the User for anyreason, including withoutlimitation: (1) attempts to gain unauthorized accessto the Platform or anotherUser's Account or providing assistance to othersattempting to do so; (2)overcoming software security features limiting use ofor protecting any content;(3) usage of the Platform to perform illegalactivities such as moneylaundering, terrorism financing, paying of ransomwareor other criminalactivities, (4) violations of these Terms; (5) failure to payor fraudulentpayment for Transactions, (6) unexpected operationaldifficulties; or (7)requests by law enforcement or other government agencies.
The Company may by notice to Usersdiscontinue or modify thePlatform and/or revise or terminate these Terms atany time. Users are deemed tohave accepted these revisions or termination tothe extent that they continueusing the Platform.
Subject to these Terms and applicable laws,within 60 days ofclosure of a User's Account, whether by the User or theCompany, the Companymust:
(a) In respect of any Deposited Currencyheld in the User'sAccount, pay to the User's nominated bank account the amountof the DepositedCurrency; and
(b) in respect of any Token held in theUser's Account, in itsabsolute discretion either:
(b) a. transfer the Tokens to the User or aperson nominated bythe User (which may be another Token trading platformprovider); or
(b) b. sell the Tokens at the prevailingmarket price and pay theamount raised to the User's nominated bank account.
The Company is entitled to retain from anyamounts (whether Tokenor Deposited Currency) which may otherwise be payable tothe User on closure ofits Account any amount payable by the User to theCompany, including as fees orcommissions on sale of Tokens under (b) b. above.The Company may be legallylimited in the values it may refund over a certainperiod of time and a Usershall not hold the Company liable for an inability torefund all values asexpeditiously as the User may desire.
The User also agrees that the Company may,in its sole discretionby giving notice, terminate Users' access to thePlatform, prohibit access tothe Platform and its content, services and tools,delay or remove hostedcontent, and take technical and legal steps to preventthe User's access to thePlatform if the Company - in its exclusive discretion- believes that the Userhas breached or may breach these Terms or is otherwiseacting inconsistentlywith the intentions of these Terms.
The Company also reserves the right toterminate Accounts thathave been inactive for a period of 6 months or more, orto modify or discontinuethe System. Users agree that the Company will not beliable to them or to anythird party for termination of their accounts oraccess to the System.
Notwithstanding any suspension ortermination of a User'sAccount, the User remains liable for all fees andcommissions payable in respectof the Account or any Transaction entered priorto the suspension ortermination.
15. Governing Law
These Terms and User's use of the websiteand the Platform willbe governed by the laws of New South Wales Australia. AllUsers submit to thenon-exclusive jurisdiction of the courts of New SouthWales.
If any provision of these Terms is deemedinvalid orunenforceable by a court of competent jurisdiction, the provisionwill beenforceable to the maximum extent permissible and the remainingprovisionsremain in full force and effect.
In these Terms:
Deposited Currency means the authorizedcurrency of Australia orsuch other sovereign nation as is acceptable to theCompany and held in a User'sAccount.
Commission means an amount levied aspayment to the Company forarranging and matching a Transaction. A Commissionis generally levied as apercentage of the value of a Transaction.
Fee means an amount levied by the Companyin relation to a User'sAccount. It may be levied against a particular User'sAccount or in respect of aclass of Accounts or across all Accounts. Fees mayalso be levied in respect ofspecific services provided to Users.
Instruction means an offer to buy or offerto sell Tokens throughthe Platform at the price, if any, nominated in such Instructionplus anyapplicable Commission.
Transaction means the purchase or sale ofTokens arising from anInstruction.
Token means a cryptographic unique softwaretoken