Service Terms and Conditions
GENERAL SERVICE TERMS AND CONDITIONS OF BLOCKEX DIGITAL ASSET TRADING PLATFORM
1. APPLICATION AND SCOPE
- 1.1. The Agreement between you and us:These terms and conditions of business together with any Transaction confirmation (“Terms”) set out the basis on which BX OP Services Limited, (trading as BlockEx Markets) may provide you with Services via the Platform and shall govern each Transaction entered into between you and us, whether or not you have signed and returned them. The Terms, are in addition to the terms of the Software License Agreement.
- 1.2. Definitions: the meaning of defined terms used herein are set out below.
- 1.3. Capacity: Unless otherwise agreed in writing with BlockEx, you act as principal and not as an agent (or trustee) on behalf of someone else. If you have expressly notified BlockEx in writing that you are not acting in a principal capacity but are acting as an agent on behalf of an end user or users and BlockEx has agreed in writing to such arrangement, you may be subject to supplemental terms.
- 1.4. No Regulatory or Fiduciary Obligations: We assume no regulatory responsibility or fiduciary or equitable duty to you, other than that which are otherwise mandatory under the Applicable Regulations.
- 2.1. Exchange Services: We may provide you with Services in relation to Transactions in Digital Assets via the Platform. We may facilitate Transactions on your Instructions with other Platform users.
- 2.2. Other Investment Services: We may provide you with other Services by agreement from time to time. Such services may be subject to separate terms and conditions.
- 2.3. Know-Your-Client Information: Prior to using the Platform, the Customer shall be required to provide information requested by BlockEx relating to itself and activities. Moreover, BlockEx may at any time request additional information relating to the Customer, end users and/or their Transactions via the Platform. Failure to provide such information may result in suspension or termination of the Customer’s access to the Platform.
- 3.1. Placing of instructions:All instructions for Transactions will be irrevocable if provided electronically via the Platform, except in exceptional circumstances as determined by BlockEx. BlockEx shall be authorised, but not obligated, to follow instructions submitted via the Platform. We will not be liable for any failure or delay in facilitating instructions. In relation to payment orders, there are cut-off times will apply and are available on request. We may request any additional information and documentation in our sole discretion. In the Terms “instructions” and “orders” have the same meaning.
- 3.2. Limits:We have the right (but no obligation) to set and adjust limits to control your use of the Platform at our absolute discretion. Such limits may include (without limitation) controls over price, maximum order size and total exposure; controls over use prior to completion of appropriate verification & identification in relation to you or a particular transaction; controls required to comply with Applicable Regulations. We may close out any one or more of your Transactions in order to comply with such limits. In addition, BlockEx may place global limits on total aggregate orders on the Platform in respect of all clients, which may affect your orders.
- 3.3. Contingent Orders: The Customer shall be responsible for the due performance of any partially executed limit or other contingent order placed with BlockEx prior to BlockEx receiving a notice of withdrawal or cancellation.
- 3.4. Aggregation of orders: We may combine orders from different Customers in our sole discretion which aggregation may result in you obtaining a less favourable price in relation to a particular order.
- 3.5. Best execution: In facilitating Transactions on your instructions, we shall endeavour to secure best possible outcome for all Customers, however we have no legal obligation to provide “Best Execution”.
- 3.6. Liability for Instructions: All instructions on the Platform are given entirely at your own risk and you accept full responsibility and liability for all instructions and all Transactions entered into as a result thereof. We have no responsibility or liability to monitor or check your instructions and shall not be liable in any way for any unauthorised or non-permitted Transactions. Further, we shall not be obliged to monitor whether any local legal or regulatory rules apply to the Customer or its End User’s. In the event of any dispute regarding any Transaction, BlockEx may in its absolute discretion cancel, terminate, reverse or close out the whole or part of the position resulting from such Transaction.
- 3.7. High Volumes: At times when the Platform experiences heavy trading volume, the Customer acknowledges that Orders and cancellation requests may take longer for BlockEx to execute and process through the Platform, and that Orders may be executed at prices that materially differ from the best bid or offer quotes displayed at the time of order entry. BlockEx will endeavour to inform the Customer should this scenario arise.
- 4.1. Confirmations (contract notes): We shall provide you on a daily basis with confirmations for Transactions facilitated via the Platform. Confirmations shall, in the absence of manifest error, be conclusive and binding on you.
- 4.2. Monthly Statements: We shall provide you with monthly statements showing all Transactions in the preceding month. Statements shall, in the absence of manifest error, be conclusive and binding on you.
- 4.3. Communications: You consent that we may communicate with you electronically, including by posting notices and information via the Platform and/or by email. You shall be responsible for ensuring that we have your up-to-date contact details. We are not liable if, due to circumstances out of our reasonable control, communications are intercepted, delayed, corrupted, note received or received by persons other than the intended addressee(s). You shall advise us immediately in writing if any communication you receive from us does not correspond with your records.
5. PLATFORM SECURITY
- 5.1. Secure Access: The Customer agrees that it will not access or attempt to access the Platform and/or BlockEx’s computing systems and/or networks except through BlockEx’s approved security procedures and with the benefit of an up-to-date virus detection/scanning program. The Customer agrees that (i) it shall not permit any persons other than Authorized Parties to have access to the Platform; (ii) neither it nor its Authorized Parties will share its security details (including username & password) for accessing the Platform without the express written consent of BlockEx; and (iii) it will not alter, disable, or circumvent any BlockEx security procedures or permit any other person to do so. The Customer agrees that it is responsible and liable for all Orders transmitted through the Platform using the Customer’s login details, including without limitation the clearance and settlement of all Transactions resulting from such Orders, irrespective of whether (i) the persons accessing the Platform are the Customer’s Authorized Parties; (ii) the Orders are claimed by the Customer to be unauthorised or unsuitable; or (iii) the Orders exceed any limit imposed by BlockEx; and the Customer will be bound by any transactions resulting therefrom.
- 5.2. Customer Responsibility for its Systems: The Customer acknowledges and agrees that it is responsible for: (i) the provision of, and maintenance and support services required in relation to the Customer’s System; (ii) the installation and proper use of any software (and any upgrades thereto) provided by any Provider to the Customer to enable the Customer to use the Platform; and (iii) the installation and proper use of any virus detection/scanning program any provider may require relating to the Customer’s access to the Platform. In the event the Customer becomes aware of a defect, malfunction or Computer Virus in the Customer’s System, the Platform or BlockEx’s computing system and/or networks, the Customer will immediately notify BlockEx of such defect, malfunction or computer virus and will cease all use of the Platform and/or BlockEx’s computing system and/or networks until the Customer has received permission from BlockEx to resume such use. The Customer will not introduce into the Platform any code, computer virus, or electronic mechanism that would damage or disrupt the Platform or BlockEx’s systems, computers or software.
- 5.3. No Real-Time Data: The Customer understands and agrees that the market and quotation data available on the Platform is indicative only until a Transaction is confirmed via the Platform. BlockEx expressly excludes all responsibility or liability for market data shown on the Platform, prior to the point of written confirmation of a Transaction executed via the Platform.
- 5.4. Discretion to Suspend Access: In its sole discretion, and without notice or liability, BlockEx shall have the right to restrict, suspend or withdraw, temporarily or permanently, the Customer’s ability to use the Platform, or any part thereof (either generally or in relation to one or more jurisdictions) for any reason and at any time.
- 6.1. Delivery and Payment: Unless otherwise agreed by BlockEx, all Transactions will be “pre-funded” and the settlement shall occur immediately on the Transaction execution date. You are responsible for payment and delivery for each Transaction we executed for or with you, whether by arranging payment of the purchase price or delivery of the relevant assets prior to the settlement time. Payment shall be made free from set-off, counterclaim or deduction and you must pay any additional amounts to ensure we receive the full amount without withholding or deduction. You shall not knowingly give instructions to BlockEx if there are not sufficient cleared funds or securities in the relevant accounts to cover the Transaction. We shall not be obliged to make any payment or delivery scheduled to be made by us under a Transaction for as long as an Event of Default or Potential Event of Default with respect to you has occurred and is continuing. We will notify you in writing if the securities settlement conventions in certain markets may result in a delay before proceeds of sale or title to assets passes to you. While BlockEx will use best endeavours to facilitate Transactions via the Platform, BlockEx is not responsible and expressly excludes all liability for losses and claims whatsoever caused by failure or delay in payment or delivery by you or any other customer using the Platform or their respective end users.
- 6.2. Customer’s Custodian/Clearing Broker: You will provide to your custodian or clearing broker a standing instruction to accept automatically all orders and Transactions facilitated via the Platform. You shall ensure that your custodian or clearing broker is instructed to provide BlockEx with access to all information regarding all money and assets held by you or on your behalf in relation to your obligations under Transactions.
- 6.3. Costs and Risks: The Customer shall bear all costs and risks of payment and delivery by or to the Customer, whether upon settlement of any Transaction, termination of the Terms or otherwise, including all applicable contract, market, custodian or clearing firm fees, taxes or charges, in relation to the relevant Transaction.
7. NATURE OF SERVICES
- 7.1. Exchange Only: BlockEx provides a platform to facilitate Transactions between users. All decisions on whether to buy, hold or dispose of any asset and/or any legal, regulatory or tax consequences of such action are yours or those of your end users; we will only enter into Transactions you instruct. We assume no fiduciary or equitable duty in our relations with you.
- 7.2. Additional Information: Notwithstanding that we provide you only with services to facilitate Transactions, we may be required by Applicable Regulations to request information or additional terms and conditions prior to facilitating any Transaction and you agree to provide such information upon request.
- 7.3. Legal and Tax: You have sole responsibility for the management of your legal and tax affairs. We will not provide any legal or tax advice or administrative support.
- 7.4. No On-Going Advice or Monitoring: Unless otherwise agreed in writing, we shall be under no obligation to provide on-going advice in relation to the management of your investments. Further, where you instruct us to enter into contingent liability transactions that involve actual or potential liability in excess of the cost of acquiring the investment (i.e. leverage), you shall be responsible for monitoring such investment and arranging for appropriate funds or assets to satisfy any margin calls.
- 7.5. Valuation: All valuations provided in confirmations and periodic statements are the valuations based on the market price transacted by BlockEx according to your instructions. Where no market price is available, BlockEx will arrive at the price on a best efforts basis and any reference in a contract or confirmation note to a market price shall be construed accordingly.
8. COMMISSIONS, FEES AND CHARGES
- 8.1. Commissions, Fees and Charges: You will pay our commissions fees and charges as published at the time they are incurred. Commissions fees and charges will be notified to you from time to time. Unless stated otherwise, all commissions, fees and charges shall be exclusive of taxes (including without limitation VAT). In addition we shall charge you out-of-pocket expenses incurred by us in the provision of the Platform and Services to you, together with any applicable taxes and duties.
- 8.2. Payment of Commissions, Fees and Charges: Commissions, fees and charges shall be automatically deducted from your account with your custodian or clearing broker. You shall give an irrevocable instruction to your Clearer to pay such amounts to BlockEx. In the event there are insufficient funds in your account, you shall remain liable to BlockEx for any shortfall. All such payments shall be made by you without any deduction or withholding.
- 8.3. Default interest: If you fail to pay us any amount when it is due, we reserve the right to charge you interest (both before and after any judgment) on any such unpaid amount calculated at the rate which we reasonably determine to be the cost of funding such overdue amount, provided that such amounts shall in no case be higher than the highest amount by the applicable regulations. Interest will accrue on a daily basis and will be due and payable by you as a separate debt.
- 8.4. Currency indemnity: If we receive or recover any amount in respect of an obligation of yours in a currency other than that in which such amount was payable, whether pursuant to a judgment of any court or otherwise, you shall indemnify us and hold us harmless from and against any cost (including costs of conversion) and loss suffered by us as a result of receiving such amount in a currency other than the currency in which it was due.
- 8.5. Payments and deliveries net: Unless we expressly agree with you in writing (or give you written notice) to the contrary, all payments and deliveries between us shall be made on a net basis and we shall not be obliged to deliver or make payment to you or both (as the case may be) unless and until we have received from you the appropriate documents or cleared funds.
- 8.6. Taxes: We may deduct or withhold all forms of tax (wherever imposed) from any payment if obliged to do so under the Applicable Regulations. You shall at all times be fully responsible for payment of all taxes, levies or imposts due and for the making of all related claims whether for exemption from withholding taxes or otherwise, for filing any tax returns and/or for providing any relevant tax authorities with all necessary information in relation to any investment business we carry on for or with you or any investments which we hold on your behalf.
9. CONFLICTS OF INTEREST
- 9.1. Conflict Handling: Where BlockEx is aware that it is faced with competing interests, it will take reasonable steps to protect client interests, including as required under law, Applicable Regulations and internal policy.
- 9.2. Execution of Orders for Others: The Customer acknowledges that BlockEx, its affiliates may trade on the Platform for its proprietary accounts, on behalf of other clients and on behalf of accounts.
10. CUSTOMER INFORMATION OBLIGATIONS
10.1. Customer shall:
- 10.1.1. provide to BlockEx all information to enable effectively provide the Services in relation to Transactions via the Platform, including execute and settle each Transaction to the relevant account of the Customer (or the relevant third party as appropriate);
- 10.1.2. provide to BlockEx all information requested to enable BlockEx to comply with Applicable Regulations and internal policy obligations, including but not limited to, financial information relating to the Customer, know-your-customer and anti-money laundering, local market disclosure rules relating to the identity of the ultimate client.
- 10.2. In the event BlockEx does not receive such information it may in its absolute discretion immediately cancel or terminate access to the Platform and Services, and reverse or close out any Transactions without liability to the Customer or any third party for any loss, cost or damage arising therefrom and further it shall be entitled to recover from the Customer on a full indemnity basis any costs, disbursements, expenses, losses or damages which BlockEx incurs as a result of the Customer’s breach which shall become immediately due and payable upon demand together with interest thereon calculated in accordance with the Terms.
- 10.3. Without prejudice to the foregoing, the Customer shall provide to BlockEx upon demand all such information as may be required to be filed or disclosed pursuant to any Applicable Regulations; file such reports, letters and other communications as may be required by any applicable law and within any applicable time periods; and send a copy of all such reports referred to above to BlockEx promptly upon such filing.
- 10.4. In circumstances where you act as agent for another, you shall expressly notify BlockEx in writing and you warrant that you are expressly authorized by your principal to give any instructions given to us and you will be liable to BlockEx as if you were acting as principal in respect of all obligations and liabilities arising therefrom and BlockEx may require that additional terms and conditions shall apply to such Transactions. Further, you shall provide all information requested by BlockEx in relation to the third party.
- 10.1. Customer shall:
11. TIME OF ESSENCE
Time shall be of the essence in respect of all your obligations under these Terms.
12. APPLICABLE REGULATIONS
- 12.1. Platform and Services Are Not Regulated: Unless notified otherwise you should assume that BlockEx and the Platform and Services it provides are not regulated in any location. You and your end users are not entitled to any regulatory redress or compensation as a customer of BlockEx and/or the Platform. Nevertheless we take your custom very seriously and should you have a complaint in relation to your dealings with us, such complaint should be raised in the first instance with: the Compliance Officer compliance@BlockEx.com. We will endeavour to respond to any complaint or request for information as soon as possible.
- 12.2. Closing out: If we enter into any Transaction to close out any existing Transaction(s) between users on the Platform then your respective obligations under both such Transactions shall automatically and immediately be terminated upon entering in to the second Transaction, except for any settlement payment due from one to the other in respect of such close-out.
13. REPRESENTATIONS, WARRANTIES & COVENANTS
13.1. Representations and warranties: You represent and warrant to us as of the date the Terms come into effect and as of the date of each Transaction that:
- (a) you have all necessary authority, powers, consents, licences and authorisations and have taken all necessary action to enable you lawfully to enter into and perform the Terms and each Transaction;
- (b) the Terms, each Transaction and the obligations created under them both are binding upon you and enforceable against you in accordance with their terms (subject to applicable principles of equity) and do not and will not violate the terms of any regulation, order, charge or agreement by which you are bound;
- (c) you or the relevant End User owns, with full title guarantee, all digital assets deposited with, transferred pursuant to a Transaction on the Platform and are free from any prior mortgage, charge, lien or other encumbrance whatsoever and neither you or End User will further pledge or charge such assets or grant any lien over them while it is pledged or charged to us except with our prior written consent;
- (d) no Event of Default or Potential Event of Default has occurred and is continuing with respect to you;
- (e) any information which you provide or have provided to us in respect of your financial position, domicile or other matters is accurate and not misleading in any material respect;
- (f) you are willing and financially able to sustain a total loss of funds resulting from Transactions;
- (g) you are not a US person nor are you beneficially owned by a US person.
You will promptly notify us in writing if any of the above representations and warranties shall materially change or cease to be true and correct.
13.2. Covenants: You covenant to us that:
- (a) you will at all times obtain and comply with the terms of and do all that is necessary to maintain in full force and effect all authority, powers, consents, licenses and authorizations referred to above;
- (b) you will promptly notify us of the occurrence of any Event of Default or Potential Event of Default;
- (c) you will use all reasonable steps to comply with all Applicable Regulations in relation to the Terms and any Transaction, so far as they are applicable to you;
- (d) you will not send orders or otherwise take any action that could create a false impression of the demand or value for a financial instrument, or send orders which you have reason to believe are in breach of Applicable Regulations. You shall observe the standard of behaviour reasonably expected of persons in your position and not take any step which would cause us to fail to observe the standard of behaviour reasonably expected of persons in our position; and
- (e) you will, upon demand provide us with such information as we may reasonably require to evidence the matters referred to in the representations, warranties and covenants above or to comply with any Applicable Regulations.
- 13.1. Representations and warranties: You represent and warrant to us as of the date the Terms come into effect and as of the date of each Transaction that:
14. PAYMENTS & HOLDING CLIENT MONEY
- 14.1. BlockEx does not propose to hold client money.
- 14.2. You will appoint and hereby irrevocably authorize us to appoint on your behalf a licensed financial institution proposed by BlockEx for these purposes as part of the Platform on-boarding process.
15.1. Events of Default: It is an Event of Default with respect to the Customer if at any time one or more of the following occurs:
- (a) the Customer fails to make any payment or delivery or settlement or exercise under the Terms and such failure continues for one business day;
- (b) an Act of Insolvency occurs with respect to the Customer (or where the Customer is acting as agent, its customer), or with respect to the Customer’s bank, custodian or clearer;
- (c) the Customer fails to make a payment following demand by BlockEx in respect of any Transaction:
- (d) any representation made by the Customer was incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated, or if you breach any covenant or warranty;
- (e) the Customer fails to comply with Applicable Laws, including without limitation Anti Money Laundering Laws;
- (f) the Customer fails in any way to perform any of its other obligations under these Terms promptly after receipt of notice of such failure and (where capable of remedy) does not remedy such failure within one day after BlockEx serves written notice relating to such failure on the Customer;
- (g) there is a material adverse change in the financial condition or net asset value of the Customer (or if the Customer is acting as agent, its customer) or the Customer’s bank, custodian or clearer or an Act of Insolvency occurs with respect to the Customer’s bank, custodian or clearer;
- (h) the Customer’s bank, custodian or clearer resigns or otherwise terminates its relationship with the Customer and is not immediately replaced with a counterparty acceptable to BlockEx;
- (i) any other agreement between the Customer and BlockEx is terminated, including any software license agreement;
- (j) any event occurs in relation to a Party which we have agreed with you shall constitute an Event of Default.
- 15.1. Events of Default: It is an Event of Default with respect to the Customer if at any time one or more of the following occurs:
16. RIGHTS ON DEFAULT
- 16.1. On an Event of Default or at any time after we have determined, in our absolute discretion, that you have not performed (or we reasonably believe that you will not be able or willing in the future to perform) any of your Obligations to us we shall be entitled (but without any obligation) to do any or all of the following in our sole discretion without prior notice to you:
- (a) (instead of returning to you money or assets equivalent to those credited to your account) to pay to you or instruct the third party financial institution to pay to you the fair market value of such assets or money at the time we exercise such right, and/or
- (b) to or give an instruction to a third party to sell, pledge, deposit or otherwise deal or cease to deal with such of your assets and/or money as are in our possession or in the possession of any nominee or third party, in each case as we may in our absolute discretion select and upon such terms as we may in our absolute discretion think fit (without being responsible for any loss or diminution in price) in order to realise funds sufficient to cover any amount due by you hereunder, and/or
- (c) to cancel, terminate, close out, replace or reverse any Transaction, buy, sell, borrow or lend or enter into any other transaction at any price determined by us in our sole discretion or take, or refrain from taking, such other action at such time or times and in such manner as, at our sole discretion, we consider necessary or appropriate to cover, reduce or eliminate our loss or liability under or in respect of any of your contracts, positions or commitments in relation to Transactions on the Platform; and/or
- (d) set off any Obligation to the Customer against the Customer’s Obligations to BlockEx, as further described in Clause 17 below; and/or
- (e) immediately cease to provide the Platform and/or any Services.
17. LIEN & SET OFF
- 17.1. BlockEx shall be entitled to retain all monies and assets from time to time held by BlockEx or any agent or nominee in customer accounts (including the Customer’s third party bank, clearer or custodian) under these Terms as security for all the Customer’s obligations under the Terms for amounts becoming due or owing, for safekeeping and administration or otherwise. In the event of failure by the Customer to discharge any obligations when due, BlockEx shall be entitled to apply in or towards discharge thereof such monies as aforesaid held by BlockEx and shall be entitled without notice to the Customer to sell or otherwise realise any of the assets so held by BlockEx and apply the proceeds of such realisation in or towards discharge of the said obligations under the Terms. For this purpose BlockEx may make such currency conversions as may be necessary at its then current rates for the sale and purchase of the relevant currencies.
- 17.2. BlockEx shall also have a charge, pledge and lien, to the full extent permitted by law, on all monies and assets from time to time held by any third party (including custodian or clearer) in customer accounts under these Terms as security for all the Customer’s obligations for amounts becoming due or owing under these Terms.
- 17.3. The Customer hereby authorises BlockEx to instruct any third party custodian or clearer to apply (upon notice) any assets and/or credit balance (whether or not then due and payable) on any account that has been opened in its name under these Terms and any interest on it towards the satisfaction of any sum that is due from the Customer and which remains unpaid under these Terms. BlockEx is not obliged to exercise its rights under this clause, which are without prejudice to any right of set-off, lien or other right to which BlockEx is otherwise entitled. BlockEx may convert between currencies for the purposes of exercising its rights under this clause.
18. ADDITIONAL RIGHTS, MARGIN
- 18.1. BlockEx reserves the right to take all and any action in its sole discretion in order to maintain and protect the Platform and its customers and end users. BlockEx will use best endeavors to ensure such action is taken in the best interest of the Platform and all users, including the Customer.
- 18.2. BlockEx may impose such additional reasonable obligations on the Customer as it shall in its discretion determine are necessary to protect the Platform from the risk of defaults, including requirements to pre-fund Transactions, depositing margin or providing fixed deposits. The Customer acknowledges that BlockEx is not account keeper for the Customer’s end users and the Customer is solely responsible for calling any premiums, initial margin and/or variation margin from its end users in respect of outstanding Transactions. Such additional obligations may be subject to additional terms.
- 19.1. Each party shall keep all Confidential Information (as defined below) secret and confidential and not disclose any of it to any person (except as may be required by applicable law or regulation) other than to individuals:
- (a) who are directors or employees of the recipient’s group or directors, partners or employees of the recipient’s advisers; and
- (b) who need in the recipient’s reasonable opinion to know the same for the purposes of considering, evaluating, advising on or furthering the relationship between the parties;
- 19.2. Each party shall only use the Confidential Information for the sole purpose of performing the Terms considering, evaluating, advising on or furthering the relationship between the parties and shall not use it for any other purpose;
- 19.3. Each party shall keep the Confidential Information and any copies thereof secure and in such a way so as to prevent unauthorised access by any third party, shall not make any copies of it or reproduce it in any form except for the purpose of supplying the same to those to whom disclosure is permitted in accordance with these Terms; and
- 19.4. Each party shall only inform the other party immediately if the recipient becomes aware that Confidential Information has been disclosed to an unauthorised third party.
- 19.5. Each party shall at its expense, within seven days of termination of the Execution Services under these Terms and in any event on receipt of a written demand from the other party:
- (a) return or destroy all written Confidential Information provided pursuant to these Terms without keeping any copies thereof;
- (b) destroy all analyses, compilations, notes, studies, memoranda or other documents prepared to the extent that the same contain, reflect or derive from Confidential Information.
- 19.6. The obligations of this clause 18 shall survive termination of the Platform and Services and shall continue for as long as any Confidential Information remains.
20. THIRD PARTY RIGHTS
A person who is not a party to the Terms has no right to enforce any of the Terms against BlockEx
21. LIABILITY AND INDEMNITY
- 21.1. BlockEx nor its directors, officers, employees, or agents or those of its associates shall not be liable for any loss or damage or costs or expenses that are caused to the Customer or its end users, whether arising out of breach of contract, misrepresentation or otherwise, incurred or suffered resulting from Platform and/or Services provided under the Terms and any Agreement (including any Transaction or where you have declined to enter into a Transaction) either directly or indirectly, unless it is the result of gross negligence, wilful misconduct or fraud on the part of BlockEx in the performance of this Agreement.
- 21.2. Without limiting the generality of the foregoing, BlockEx shall not be liable to Customer or any other person:
- (a) for any partial or non-performance of our obligations hereunder by reason of any cause beyond our reasonable control, including without limitation any breakdown, delay, malfunction or failure of transmission, communication or computer facilities, industrial action, act of terrorism, act of God, acts and regulations of any governmental or supra national bodies or authorities or the failure by the relevant intermediate broker or agent, agent or principal of our custodian, sub-custodian, dealer, exchange, clearing house or regulatory or self-regulatory organisation, for any reason, to perform its obligations;
- (b) by reason of any delay or change in market conditions before any particular Transaction is effected;
- (c) for any losses that arise from any damage to the Customer’s business or reputation as a result of a breach of these Terms by BlockEx;
- (d) for any adverse tax implications of any Services whatsoever.
- (e) arising from these Terms or from any obligations which relate to these Terms (including, but not limited to, obligations in tort) for any indirect, special, punitive or consequential loss or damage;
- (f) for losses arising from a direction to deliver securities or cash to a broker, even if BlockEx might have information indicating that this course of action, or the choice of a particular broker for a transaction, was imprudent;
- (g) for any losses arising from their inability to redeliver securities on the same day that they are received for an account of the Customer.
- 21.3. Except to the extent that they are the result of the gross negligence, wilful default or fraud of BlockEx, the Customer agrees to indemnify BlockEx and its directors, officers, employees, agents or nominees against any costs, claims, liabilities, damages, penalties, judgments, suits, expenses or other matters of any kind whatsoever (including, without limitation, tax, imposts, levies and trade and transaction reporting costs) which arise directly or indirectly out of the performance by BlockEx of any Services (including under any matching deal on the Platform), including (without prejudice to the generality of the foregoing):
- (a) any failure of the Customer, its customers or counterparties to make any payment or delivery when it becomes due;
- (b) any breach by the Customer or its agent of these Terms;
- (c) any failure of the Customer or its counterparties to provide instructions to BlockEx with respect to any rights or options attaching to securities held by BlockEx; or
- (d) any failure by the Customer to comply with these Terms which results in any breach by BlockEx of any Applicable Regulations; or
- (e) any unauthorised instructions in respect of a Transaction;
- (f) the costs of BlockEx defending itself successfully against the alleged fraud, negligence or wilful default of itself or any agent or nominee.
- 21.4. Except for where the Customer has expressly notified BlockEx in writing that it is acting as agent, BlockEx shall treat the Customer as the principal to all Transactions facilitated by BlockEx and for the avoidance of doubt the indemnities in these Terms shall extend in all cases to all costs and liabilities which may arise from the Customer entering into a Transaction as agent or otherwise for any end user.
- 21.5. Nothing in these Terms shall exclude or restrict any duty or liability owed to the Customer by BlockEx under the Applicable Regulations.
- 21.6. The Customer shall compensate BlockEx for all losses, costs, expenses and liabilities (including legal costs) reasonably incurred in connection with initiating or defending a claim resulting from your failure to comply with these Terms and any Transaction or arising in connection with any action properly taken by us or our agents under these Terms and any Transaction.
- 22.1. Method: These Terms may be terminated by either Party by prior written notice. Termination shall be effective upon receipt by the other Party of such notice.
- 22.2. Upon terminating the Terms, all amounts due by you to us will become immediately due and payable including (without limitation):
- (a) all outstanding fees, charges and commissions; and
- (b) any dealing expenses incurred by terminating the Terms; and
- (c) any losses and expenses realised in closing out any Transactions or settling or concluding outstanding obligations incurred by us on your behalf.
- 22.3. Existing rights: Termination shall not affect any outstanding Transactions governed by the Terms which shall continue to be governed by the Terms until all Obligations have been fully performed.
- 23.1. Amendment: These Terms may be amended by notice to you, which shall be deemed to have been accepted by you unless written notice of objection stating your counterproposals is received by us within ten business days of the date on which our notice is deemed to have been received by you or otherwise if you enter into a Transaction or provide any other Investment Service to you after receiving notice of such amendment, such notice which may be given electronically or via the Platform.
- 23.2. Notices: All notices and other communications (except instructions, confirmations of trade, statements of accounts, and margin calls which are dealt with in the Terms) to be given by one of us to the other under the Terms or any Transaction, shall be in writing and given to the address or facsimile number and to the individual or department specified by the Customer. Details for notices addressed to BlockEx are set out below.s
- (a) If sent as provided herein any notice or other communication shall, be deemed to take effect in the case of facsimile, on dispatch and, in the case of registered pre-paid post, five business days after dispatch. In proving such service of notice it shall be sufficient to prove:
- (b) in the case of delivery by post, that the letter was correctly addressed and sent by registered post; or
- (c) in the case of transmission by facsimile, that it was transmitted to the correct number.
- (d) Notices and other communications made pursuant to the Terms or any Transaction shall not be effective if given by electronic mail.
- (e) Each notice or other communication (except confirmations of trade, statements of account, and margin calls which are dealt with in the Terms) to be given to you by us shall be conclusive and binding upon you as to your rights and liabilities, unless written notice of objection is received by us within ten business days of the date on which such document was deemed to have been received.
(f) Address for notices and communications to BlockEx (except confirmations of trade, statements of account, and margin calls which are dealt with in the Terms):
For the attention of: Compliance Officer
- 23.3. Assignment: These Terms shall be for the benefit of and binding upon each of us and our respective successors and permitted assigns. Neither Party shall assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer its respective rights or obligations under the Terms or any interest therein, without the prior written consent of the other Party.
- 23.4. Rights and remedies: Unless otherwise specifically excluded, the rights and remedies provided under the Terms shall be cumulative and not exclusive of those provided by law. No failure by us to exercise or delay by us in exercising any of our rights under the Terms or otherwise shall operate as a waiver of those or any other rights or remedies. No single or partial exercise of a right or remedy shall prevent further exercise of that right or remedy or the exercise of another right or remedy.
- 23.5. Partial invalidity: If, at any time, any provision of the Terms is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of the Terms nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired.
- 23.6. Recording of calls and Monitoring of Communications: We may record telephone conversations without use of a warning tone to ensure that the material terms of the Transaction, and any other material information relating to the Transaction is promptly and accurately recorded. Such records will be our sole property and shall be accepted by you as admissible evidence of the instructions or orders given. For security, legitimate business purposes and to maintain business standards, we may monitor your electronic communications with us, including but not limited to emails sent and received.
- 23.7. Joint and several liability: If you are a trust, partnership, or of a similar legal constitution, or the Terms of an Agreement is entered into between us and more than one person, your liability under the Terms shall be joint and several.
- 23.8. Our records: Our records, unless shown to be wrong, will be evidence of your dealings with us in connection with the Platform and our Services. Subject to compliance with all applicable laws and regulations (including data protection), we may pass your information to our officers, affiliates, and professional advisors for the purposes of operating the Platform and performing the Services.
- 23.9. Your records: You agree to keep adequate records to demonstrate the nature of orders submitted and the time at which such orders are submitted.
- 23.10. Electronic communications: Any communication between us using electronic signatures shall be binding as if it were in writing. Orders or instructions given to you via electronic mail or other electronic means will constitute evidence of the orders or instructions given.
- 23.11. Use of Data: Notwithstanding the Term 19 (Confidentiality) above, the Customer is aware of, and consents to, the use of its personal data, and the Customer warrants that it will ensure that all of its employees, agents and sub-contractors are aware of, and consent to, the use of their personal data, by BlockEx for the purposes of the Terms, including the use of personal data for regulatory purposes, and the transfer of data to non-EEA countries (if relevant). BlockEx is authorised to disclose such information regarding the Customer, its Transactions and otherwise concerning any accounts of the Customer as BlockEx shall be obliged to disclose under or pursuant to any applicable law or by its auditors, and otherwise to its officers, directors, employees and those of its associates for the purposes of performing its obligations under the Terms. The Customer must inform BlockEx if any of these details change.
24. GOVERNING LAW AND JURISDICTION
- 24.1. Governing law: The Terms shall be governed by and construed in accordance with the laws of England and Wales.
- 24.2. Jurisdiction: Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to decide any proceedings and to settle any disputes arising out of or in connection with the Terms or any Transaction.
- 24.3. Service of process: If you are situated outside of the United Kingdom, process by which any proceedings in the United Kingdom are begun may be served on you by being delivered to the address nominated by you for this purpose on opening a relationship with BlockEx to use the Platform. This does not affect our right to serve process in another manner permitted by law.
In the Terms:
“Act of Insolvency” means:
- (a) a Party commences a voluntary case or other procedure seeking or proposing liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to itself or to its debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to an insolvent Party), or seeking the appointment of a trustee, receiver, liquidator, conservator, administrator, custodian, examiner or other similar official (each a “Custodian”) of it or any part of its assets; or takes any corporate action to authorise any of the foregoing; and, in the case of a reorganisation, arrangement or composition, the other Party does not consent to the proposals;
- (b) an involuntary case or other procedure is commenced against a Party seeking or proposing liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to it or its debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to an insolvent Party) or seeking the appointment of a Custodian of it or any part of its assets and such involuntary case or other procedure either (i) has not been dismissed within thirty days of its institution or presentation or (ii) has been dismissed within such period but solely on the grounds of an insufficiency of assets to cover the costs of such case or other procedure;
- (c) a Party is unable to pay its debts as they fall due or is bankrupt or insolvent, as defined under any bankruptcy, company or insolvency law applicable to such Party; or any indebtedness of a Party is not paid on the due date therefore, or becomes capable at any time of being declared, due and payable under agreements or instruments evidencing such indebtedness before it would otherwise have been due and payable, or proceedings are commenced for any execution, any attachment or garnishment, or any distress against, or an encumbrancer takes possession of, the whole or any part of the property, undertaking or assets (tangible and intangible) of a Party;
- (d) a Party is dissolved, or if a Party’s capacity or existence is dependent upon a record in a formal register, the registration is removed or ends, or any procedure is commenced seeking or proposing a Party’s dissolution or the removal from such a register or the ending of such a registration of a Party;
“Applicable Regulations” means any laws and rules of a relevant jurisdiction and/or regulatory authority; the rules of the relevant exchange; and all other applicable laws, rules and regulations, customs, procedures, policies, directives relating to countries, markets, Exchanges, market centres, including without limitation rules relating to anti money laundering and client identification in force from time to time.
“Associate” means (in relation to a person):
- (a) an undertaking in the same group as that person;
- (b) an appointed representative of the first person or of any undertaking in the same group, and
- (c) any other person whose business or domestic relationship with the first person or its associate might reasonably be expected to give rise to a community of interest between them which may involve a conflict of interest in dealings with third parties;
“Business day” shall be construed as a reference to a day (other than a Saturday or Sunday) on which:
- (a) in relation to a date for the payment of any sum denominated in (a) any currency (other than euro), banks generally are open for business in the principal financial centre of the country of such currency; or (b) euros, settlement of payments denominated in euros is generally possible in London or any other financial centre selected by us in relation to a Transaction or matching deal; and
- (b) in relation to a date for the delivery of any property, property of such type is capable of being delivered in satisfaction of obligations incurred in the market in which the obligation to deliver such first property was incurred; and
- (c) for all other purposes, is not a bank holiday or public holiday in London;
“Confidential Information” means information relating to trading positions, volumes, non-public trading information or other proprietary information which is made available (whether before or after these Terms are agreed) in writing, visual or machine readable form (including by fax and other forms of electronic transmission) or orally for the purpose of considering, negotiating, advising in relation to or furthering the performance of the Terms and also includes any information, analyses, compilations, notes, studies, memoranda or other documents derived from, containing or reflecting such information but excludes information which:
- (a) is publicly available at the time of its disclosure under these Terms; or
- (b) becomes publicly available following disclosure under these Terms (other than as a result of disclosure by the recipient or any other person contrary to the terms of these Terms); or
- (c) was lawfully in the recipient’s possession prior to disclosure under these Terms (as can be demonstrated by the recipient’s written records or other reasonable evidence) free of any restriction as to its use or disclosure prior to its being so disclosed; or
- (d) following disclosure under these Terms, becomes available to the recipient (as can be demonstrated by the recipient’s written records or other reasonable evidence) from a source other than the other party to these Terms, which source is not bound by any obligation of confidentiality in relation to such information.
“Customer” means the client of BlockEx in relation to each Transaction, including the Broker’s end users;
“Customer Costs” means:
- (a) premiums on any option purchased by us on behalf of you;
- (b) any other charges imposed any taxes imposed by any competent authority on any account opened or Transaction effected for you; and any fines or other penalties imposed by any competent authority except to the extent such fines or other penalties are imposed as a result of our gross negligence or wilful misconduct;
- (c) the amount of any trading loss that may result from Transactions executed by us on your behalf;
- (d) interest and service charges on any deficit balances in your account at the rates then charged by us (and which are available upon request) together with our reasonable costs and expenses (including legal fees) incurred in collecting such deficit; and
- (e) any taxes not expressly covered by ourselves as set out in the Terms (including without limitation stamp duty and transfer taxes);
“Execution Services” means execution and transmission of orders for Transactions.
“Platform” means the internet based electronic trading platform through which we have agreed to provide digital asset trading services.
“Services” means a service provided by us, for example an internet trading service offering clients access to electronic trading facilities for digital assets ;
“Event of Default” means any of the events listed in the Terms;
“Exchange” means any exchange or multilateral trading facility relevant (as determined by BlockEx) for the purposes of the Terms, and includes its clearing house (if any);
“Indebtedness” shall be construed so as to include any obligation (whether present or future, actual or contingent, as principal or surety or otherwise) for the payment or repayment of money;
“Market” means, except where indicated otherwise, any exchange, regulated market or multilateral trading facility.
“Obligations” means obligations present or future, actual or contingent or prospective, owing or which may become owing by you to us under any Transaction or designated by us for these purposes in writing, including margin obligations;
“Party” means you or us;
“Potential Event of Default” means any event which may (with the passage of time, the giving of notice, the making of any determination or any combination of the above) become an Event of Default;
“Terms” means these terms of business including each schedule and/or additional terms notified from time to time by BlockEx in relation to Transactions via the Platform;
“Transaction” means a digital asset transaction made on the Platform or any other transaction which both Parties agree is considered a Transaction for the purposes of these Terms, and any reference in the Terms to “the Terms” includes the terms of any Transaction.
Hierarchy: Any reference to “the Terms” shall be construed as including the schedules attached to these General Terms and Conditions and all additional terms notified to you as applicable to Transactions via the Platform as the same may from time to time be amended, varied, novated or supplemented. We may from time to time send to you additional terms, including in respect of Transactions via the Platform. In the event of any conflict between these General Terms and Conditions of Business and any other contract between you and BlockEx, these Terms shall prevail.
Headings: Headings are for ease of reference only and do not form part of the Terms.
General interpretation: A reference in the Terms to a “Term”, a “Clause” or “Schedule” shall be construed as a reference to, respectively, a term, a clause or schedule of the Terms, unless the context requires otherwise. References in the Terms to any statute or statutory instrument or Applicable Regulations include any modification, amendment, extension or re-enactment thereof. A reference in the Terms to “document” shall be construed to include any electronic document.