Digital Reserve Client Service Agreement
By contacting us, you agree all below terms and conditions:
TERMS AND CONDITIONS
These terms and conditions set out the basis on which Digital Reserve Pty Ltd, ABN 20 639 344 228 of Level 26, 1 Blight Street, Sydney NSW (Digital Reserve, we, us or our) provides cryptocurrency trading and storage services to the Client named above (you, your).
By asking One Crypto to provide all or any of the Services, you accept and agree to be bound by these terms and conditions and they will constitute a legally binding agreement between you and One Crypto.
Where appearing in this agreement in capitals, the following words have the meaning set out below:
Account means the Funds and Digital Assets that we hold on your behalf from time to time.
Applicable Laws means any law or regulatory guidance that applies to the provision of the Services.
Authorised Person means any person who you authorise to provide instructions to us on your behalf.
Digital Asset means any crypto currency or other crypto asset in which we deal from time to time. Digital Asset does not include any financial product within the meaning ascribed to that term in the Corporations Act 2001 (Cth).
Digital Wallet means an electronic device or service that is capable of receiving Digital Assets.
Exchange means any business which buys or sells Digital Assets or provides a market for the purchase and sale of Digital Assets.
Expenses has the meaning given in clause 5.3.
Fees has the meaning given in clause 5.2.
Funds means fiat currency that we hold on your behalf to fund the purchase of Digital Assets for you or that we receive from third parties after we arrange for the sale of Digital Assets for you.
Instruction means any direction you give us in relation to your Account.
Services means the services described in clause 2 and all other activities that are reasonable necessary in order to provide those services.
Service Provider means any third party organisation that we use to assist us to provide the Services .
Storage has the meaning given in clause 2.3.
Trading means either buying or selling a Digital Asset and Trade has a corresponding meaning.
Trading has the meaning given in clause 2.2.1.
2.Appointment and Serv ices
You appoint One Crypto as your agent to provide the Services set out in this clause 2.
We will buy and sell Digital Assets on your behalf and as your agent in accordance with the directions you or your Authorised Person provide to us from time to time.
You authorise us to open, operate (and if necessary close) accounts in your name with Exchanges and do all such other things on your behalf as are reasonably necessary to enable us to provide the Trading Service.
On request by you or your Authorised Person, we will hold and store some or all of the
Digital Assets that we purchase on your behalf on trust for you.
You or your Authorised Person may request us to transfer some or all of Digital Assets that we hold on your behalf to your Digital Wallet or as you otherwise direct at any time.
3.Giving us Instructions
You must provide us with all information and documents including, but not limited to proof of identity and powers of attorney, that we reasonably require from time to time in order to provide the Services.
3.2.Form of instructions
You must provide instructions in relation to the Services to us in the manner we direct, including, but not limited to the following:
Trading and Storage instructions must be confirmed in writing;
We may require you to confirm those instructions and your identity by telephone.
We are under no obligation to act in accordance with your instructions if we reasonably consider that they are ambiguous, unclear or conflict with any Applicable Laws. We will notify you if we decline to act in accordance with your instructions for any reason.
4.Obligations and Responsibilities
You authorise us to provide such information (including personal information) and documents (including proof of identity) to Exchanges and Service Providers as they reasonably need to undertake the functions we request them to perform on your behalf.
4.2.Digital Wallet and bank account
You must provide us with, and update as required, details of a valid and operable bank account and Digital Wallet owned by you and capable of receiving Funds and Digital Assets respectively, in accordance with your directions and on termination of this agreement.
You must deposit and maintain sufficient cleared Funds and Digital Assets in your Account within sufficient time to enable us to fulfil your obligations under any Trade you instruct us to undertake and to pay Fees and Expenses when due.
We are under no obligation to execute a Trade if we are not provided with adequate cleared Funds or Digital Assets, as the case may be, within 2 hours of receipt of your instruction to effect the Trade.
We will only execute Trades between 8.30 am to 5.00 pm AEST on business days. Trades requested after
4.00 pm AEST may not be actioned until the next business day.
4.6.No liability for Trades
We may from time to time, at our absolute discretion provide information and recommendations regarding the purchase, sale or holding of Digital Assets.
Notwithstanding clause 4.6.1:
You are solely responsible for satisfying yourself regarding the suitability of any Trade for your circumstances, needs and objectives;
We are not required to satisfy ourselves regarding the appropriateness or suitability of any Trade for you; and
We are not responsible for and bear no liability for any losses you may incur because of a Trade.
4.7.Service Providers and Exchanges
You acknowledge that we may retain third party Service Providers and will transact on third party exchanges when providing the Services. You agree to be bound by any actions of those Service Providers and Exchanges that are taken in accordance with instructions we provide to them as if they were our actions.
You acknowledge and agree that many different types of risks are associated with Digital Assets, including but not limited to the following: fraud, hacks, project abandonment, new technology, underlying protocol failure; mining attacks, volatility, lack of verifiable third party audits, accidental loss, regulatory risk (including changes to Applicable Laws) and no legal recourse in the event of a disputed Trade.
You confirm that you have informed yourself regarding the nature and extent of these risks and you accept that they are an inherent part of buying, owning and selling Digital Assets.
You understand and acknowledge that:
We are not responsible for any losses that you incur as a result of any of the risks
mentioned in clause 4.8.1 or any other risk associated with Digital Assets;
We do not promise, represent, or guarantee that our Services will achieve a particular rate of return;
While we will use all reasonable endeavours to keep your Digital Assets secure, we do not and cannot guarantee that they will be safe from hacks. You agree that we will not be liable to you if your Digital Assets are lost or stolen as a result of a hack that could not reasonably have been prevented.
5.4.Time of Payment
Trading Fees will be deducted from the Funds held in your Account on completion of each Trade;
Storage Fees will be calculated daily based on the highest value of the Digital Assets we hold on your behalf on that day and deducted in arrears from the Digital Assets held your Account on Friday each week.
Transaction Fees will be deducted from the Digital Assets held your Account before each transfer of Digital Assets.
You are responsible for determining whether and to what extent, any taxes apply to your Digital Assets and for payment of those taxes.
You must pay the following fees for the Services (collectively, Fees):
Trading Fee – when we buy or sell Digital Assets on your behalf;
Storage Fee – when we store your Digital Assets on your behalf; and
Transaction Fee – for transferring your Digital Assets to you or as you direct.
We will notify you of the amount of each Fee in writing when you open an Account with us
We may vary our Fees at any time on 30 days prior notice in writing to you. If our Fees change during a month, the new Fee will apply pro-rata from the date the change takes effect to the end of the month.
You must pay all Expenses we incur on your behalf in providing the Services, including, but not limited to fees charged by Exchanges, taxes and other government charges and the cost of hardware used to provide the Storage services.
5.3.Agreement and authority
By opening an Account with us, you:
Agree to pay our Fees as notified to you from time to time and the Expenses; and
Authorise us to deduct our Fees and any Expenses from the Funds or Digital Assets in your Account in accordance with clause 5.4
You may appoint one or more people as Authorised Persons to represent or act for you, or give instructions on your behalf. You must provide us with written evidence of the appointment.
We may, at our discretion, decline to deal with your Appointed Person if they are not acceptable to us.
You agree and understand that we may:
Act upon the instructions of any Authorised Person;
Restrict an Authorised Person from providing instructions in relation to particular Services; and
Provide information relating to your account or your investments in response to a request from an Authorised Person;
without checking the authority of that Authorised Person on each occasion to give such instructions or to request such information.
If you wish to revoke the authority of an Authorised Person, you must tell us in writing.
7.Representations and Warranties
You represent and warrant that:
If more than one person constitutes the client, each is jointly and severally responsible for performing all of the obligations and liabilities under this agreement, and each representation, warranty and undertaking under this agreement is taken to have been made by each person;
The information you supply to us, or which is supplied on your behalf in connection with
your Account, is accurate and complete. We may rely on that information unless and until we receive notice of any change and you are liable for any loss arising through your failure to notify us of any change.
You will ratify and confirm any proper actions we or any Service Provider carry out based on your instructions, or the instructions of an Authorised Person;
As soon as you become aware of an error or omission, you are responsible for taking necessary action to mitigate further loss;
8.Te rm and Te rmination
8.1.Request to close Account
You may request us to close your Account at any time.
On receipt of your request to close your account, or on termination of your Account pursuant to clause 8.2, we will
Complete and settle any pending Trades;
Remit your Funds to your Bank Account;
Remit your Digital Assets to your Digital Wallet in accordance with your directions or, if you fail to provide us with details of your Digital Wallet or directions, to a Digital Wallet that we establish for you, details of which we will provide to you;
Before remitting your Funds and Digital Assets in accordance with the preceding clause, we will deduct all Fees and Expenses owed to us from your Account.
8.2.Suspension and termination
We may suspend, restrict, deactivate or terminate your Account if:
You fail to provide us with adequate instructions within a reasonable time;
You become bankrupt or insolvent;
You fail to or fraudulently pay for any Service;
You breach any clause of this agreement;
You mislead us (including by omitting any information that we may reasonably require) in relation to your Account and the Services;
You use, or we reasonably suspect you of using, our Services in order to perform any illegal activities, money laundering, terrorist financing or any other breach of Applicable Laws; or
We have reasonable grounds to believe that continuing to provide you with any of the Services could result in us breaching, or being an accessory to a breach of any Applicable Laws;
Your use of our Services is subject to any pending government proceedings, investigation or litigation;
We receive a request from a law enforcement or government agency to do so.
8.3.No obligation on suspension
If your Account is suspended, restricted, deactivated or terminated:
We are in no way obliged to reinstate or honour a Trade that we were unable to undertake on the same terms had the limitation, suspension, deactivation or termination not occurred.
Notwithstanding any other provision of this agreement, we are under no obligation to return your Funds or Digital Assets to you if your Account has been suspended or deactivated for the reasons set out in clauses 8.2.6-8.2.9 unless we are satisfied that the reason is no longer valid.
To the maximum extent permitted by law, you agrees to indemnify us (and each of our associated entities, directors, officers, employees, affiliates, members, service providers and agents, together the Indemnified Parties') from and against all loss, damage, penalties, fines, costs and expenses (including reasonable legal costs and expenses awarded by a court) which result from or relate to:
Your conduct and use of the Services;
Any breach of this agreement;
Your breach of any law, regulation or rule;
but only in the proportion that represents the extent to which the loss, damage, penalties, fines, costs and expenses were caused by your negligent or wrongful acts or omissions.
10.Limitation of liability
To the extent permitted by law, we and each of our officers, employees and associates (as that term is used in the Corporations Act 2001 (Cth)) from time to time have no liability for any loss or damage incurred by you directly or indirectly (except to the extent resulting from or caused by our negligence, fraud or dishonesty) as a result of or arising out of:
Any failure by an Exchange or Service Provider;
Acting (or refusing to act) on your instructions or the instructions of an Authorised Person, even if there was no error or omission in your instructions;
Your failure to comply with this agreement;
Anything lawfully done by us, in accordance with this agreement, the Applicable Laws or in compliance with a direction or request from a law enforcement or government agency;
Any delay, interruption, omission, failure, error or fault by us in passing on and executing your instructions;
Reliance on a document or message that we had no reason to believe was not authentic or delays caused by our further investigation of the authenticity of the instructions.
In this clause, Force Majeure means a circumstance beyond the reasonable control of a party which results in that party being unable to observe or perform on time an obligation under this agreement and meaning acts of God, floods, storms and any other natural disaster, acts of war, civil commotion, malicious damage, strikes, fire, communication line or link failure, failure of third party suppliers to supply, computer hardware failure, or power or utility failure.
We have no liability to you or any other person:
If we are unable to perform the Services due to circumstances out of our control, including but not limited to changes to laws, regulation or policy or a Force Majeure event.
For any delay or failure to perform our obligations under this agreement, to the extent that such delay or failure is due to Force Majeure.
If we are unable to perform any obligation or condition required by this agreement to be performed because of Force Majeure, we will notify you as soon as possible, with the notice to contain details of the circumstances giving rise to the event of Force Majeure.
If a dispute (Dispute) arises out of or relates to this agreement (including any dispute as to breach of or
termination of the agreement or as to any claim in tort, equity or pursuant to any statute) a party to the agreement may not commence any court or arbitration proceedings relating to the dispute unless it has complied with this clause 12, except where the party seeks urgent interlocutory relief.
13.Notice of Dispute
A party to this agreement claiming that a Dispute has arisen under or in relation to this agreement must give written notice to the other party to this agreement, specifying the nature of the Dispute.
13.1.Parties must endeavour to resolve
On receipt of that notice by that other party, the parties must endeavour to resolve the Dispute expeditiously otherwise if the parties cannot resolve the Dispute within ten (10) business days, the parties will refer the matter for mediation administered by the Australian Disputes Centre (“ADC”).
13.2.Process for mediation
Any such mediation is to be conducted in accordance with ADC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which terms are deemed incorporated;
The parties to the Dispute will share the costs of the mediator and of the mediation (apart from costs of their own representation, if any) in equal shares; and
At the conclusion of the mediation, the parties to the Dispute are not precluded from commencing legal proceedings or pursuing any other legal rights they may have in respect of the Dispute.
A notice, consent, information, application or request that must or may be given or made to a party under this agreement is only given or made if it is in writing and sent in one of the following ways:
Delivered or posted to that party at its last known address; or
Emailed to that party at its last known address email address.
14.2.Change of addresses
If a party gives the other party three (3) business days’ notice of a change of its address or email address, a notice, consent, information, application or request is only given or made by that other party if it is delivered, posted or emailed to the latest address or email address.
14.3.Time notice is given
A notice, consent, information, application or request is to be treated as given or made at the following time:
If it is delivered, when it is left at the relevant address.
If it is sent by post, three (3) business days after it is posted.
If it is sent by email, as soon as the sender’s information system sends the email to the recipient’s email box, provided the sender does not receive a message sent by the recipient’s information system advising the sender that the recipient has not received the email.
14.4.Receipt after business hours
If a notice, consent, information, application or request is delivered, or an error free transmission report in relation to it is received, on a day that is not a business day, or if on a business day, after 5pm on that day in the place of the party to whom it is sent, it is to be treated as having been given or made at the beginning of the next business day.
In the interpretation of this agreement, the following provisions apply unless the context otherwise requires:
15.1.1.A reference in this agreement to a business day means a day other than a Saturday or Sunday on which banks are open for business generally in the State of New South Wales.
If the day on which any act, matter or thing is to be done under this document is not a business day, the act, matter or thing must be done on the next day.
An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
A word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders.
References to the word ‘include’ or ‘including are to be construed without limitation.
If a clause or part of a clause of this agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this agreement, but the rest of this agreement is not affected.
You may not assign, transfer or novate any of your rights or obligations under this agreement without our written consent. We may assign, transfer or novate its rights or obligations under this agreement to any third party by giving you 10 business days' notice in writing.
We may vary this agreement (other than to your detriment), by giving you 10 business days written notice of the change.
If any part of this agreement is invalid, void or unenforceable, this agreement is only affected to the extent of such invalidity, voidness or unenforceability and the remainder of the agreement continues in full force and effect.
This agreement is governed by the laws of the state of New South Wales. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.