Terms of Business
Last updated: 25 October 2022
These Terms of Business are made by and between Caleb and Brown Pty Ltd and you. By clicking accept you agree to be bound by the following terms.
1. Caleb and Brown Terms of Business
(a) By accessing or using our Services (as defined in clause 5) you agree to be bound by these terms of business (Terms of Business). You must not use, and should immediately cease using, our Services if you do not agree to these Terms of Business.
(b) By clicking "I Agree", creating an account, registering with us or accessing or using any part of the Services, you agree to be bound by these Terms of Business.
(c) We may revise these Terms of Business from time to time. We will display a notice on our website (www.calebandbrown.com) (Website) indicating when any such revisions have been made. Any changes published on the Website will be taken to be effective when they are published and the changes supersede all prior versions.
(d) Your subsequent or continued use of your Account, the Website, the Caleb and Brown Portal (Portal) and/or Services will constitute your acceptance of these changes and subject your Account to the modified Terms. If you do not agree to a variation, you may terminate being a user of the Services.
2. Purpose and basis of these terms
(b) Subject to clause 2(c), if there are any other agreements or documents between us and you pertaining to the Services, such other agreements or documents will be supplemental to and constitute part of the Terms. If and to the extent that the Terms are inconsistent or conflict with any other agreement or document between us and you, or to the extent that the Terms and any other agreements address the same matters, the terms of that other agreement or document shall prevail in respect of the specific subject matter, products or Services to which that other agreement or document relates.
(c) These Terms of Business supersede any previous agreement between us relating to the subject matter of these Terms of Business.
3. Definition and construction
(a) Unless otherwise stated, definitions are set out in these Terms of Business.
(b) In these Terms of Business:
(i) "Account" means your registered identity used in connection with the provision of the Services and includes an Individual Account and a Corporate Account.
(ii) "Business Day" means a day which is not a Saturday or a Sunday and upon which banks are open for business in Melbourne.
(iii) "Digital Currency" means a digital representation of value in which encryption techniques are used to regulate the generation of digital units and verify the transfer of assets, operating independently from a central bank.
(iv) "Referral Partner" means a referrer who has an agreement with us to receive commissions on Trades on customer Accounts in exchange for referring those customers to us.
(v) "We", "Us", "Our", and "Caleb & Brown", means Caleb and Brown Pty Ltd (ABN 66 619 023 559) or its nominated related body corporate (as that term is defined in the Corporations Act 2001 (Cth) (Corporations Act) that may provide the Services to you from time to time.
(vi) "you" and "your" means the customer receiving the Services, including your Authorised Agent (where applicable).
(c) References to clauses are to the clauses of these Terms of Business.
(d) Headings are included for convenience only and shall not affect the interpretation of these Terms of Business.
(e) Any reference in any documentation between you and us to an earlier version of these Terms of Business shall, from the date these Terms of Business take effect, be read as a reference to these Terms of Business or the relevant or corresponding part thereof.
(f) References in these Terms of Business to statutes and any other laws, rules or regulations shall be to such statutes, laws, rules or regulations as modified, amended, restated or replaced from time to time.
(g) Unless otherwise stated, any reference to a monetary amount is in Australian dollars.
(a) Neither the relationship between you and us nor the Services to be provided by us will give rise to any fiduciary or equitable duty which would oblige us to accept responsibilities more extensive than those set out in the Terms or which would prevent us from dealing in Digital Currencies for any other person or entity.
(b) Nothing in the Terms (or any of the arrangements contemplated by them) shall be deemed to create a partnership, joint venture or equivalent between you and us.
5. Description of services
(a) We may:
(i) execute Digital Currency purchases and disposals on your behalf as your agent (including in connection with any airdrop event or fork) (Trades); and
(ii) hold fiat or Digital Currency for the purposes of executing Trades, (together the Services).
(b) The provision by us of the Services will be subject to the Terms and applicable law.
(c) By undertaking business with us, you confirm that you have the necessary experience and knowledge to understand the risks involved in any transaction which we will carry out for you. We give no warranty as to the performance or profitability of any transaction or investment that you may effect through us.
(d) We are not responsible for the provision of any tax, legal, accounting or other advice relating to the Services or any Digital Currency.
(e) We are authorised by you to do anything which we consider necessary or appropriate either to provide the Services (including but not limited to acting as your agent and delegating our authority as your agent to another), to mitigate any loss incurred in the provision of the Services or to comply with any applicable law relating to the Services, including executing any transactions relating to an instruction from you to implement a Trade or Digital Currency we hold for you.
(a) Before you can trade Digital Currencies with us you must register via our Website or one of our brokers for a trading account. Following registration, one of our brokers will contact you and provide your Customer ID Number which will be used to initiate Trades.
(b) You can register as either an individual or corporate.
(c) You must not act as an agent for any other person.
6.2 Individual Account
This Account is owned by only one (1) natural person who is, on a continuing basis unless an Authorised Agent has been appointed in accordance with clause 6.4, the only person authorised to take any action in the Account. By opening an Individual Account, you represent and warrant that you are and shall at all times continue to be the sole beneficial owner of the Account and user of all Services connected with the Account.
6.3 Corporate Account
(a) This Account is owned by a corporation, unincorporated association, company, partnership, fiduciary, sole proprietorship or other legally recognised group (interchangeably defined as an "Entity") holding an Account in any capacity other than an individual capacity. An Entity can apply to open an Account through any natural person(s) who is duly authorised by the Entity to do so (an "Authorised Representative").
(b) Such Authorised Representative represents, warrants and agrees, on behalf of the Entity, as well as on their own behalf, that the Authorised Representative:
(i) is fully authorised to bind the Entity and execute all documents or do all things necessary to otherwise complete our requirements in the Authorised Representative's stated capacity;
(ii) has provided us with all documents or other information necessary to demonstrate and verify that authority; and
(iii) will provide other documents and complete other requirements as we may request from time to time.
(c) We may refuse to recognise any such authorisation if, in our sole and absolute discretion, it appears to be incomplete or improperly executed.
(d) By opening a Corporate Account, the Authorised Representative represents and warrants on behalf of the Entity that the Entity is, and shall at all times continue to be, the sole beneficial owner of the Account and user of all Services connected with the Account.
6.4 Authorised Agents
(a) You may apply to appoint an individual, or individuals, to act on your behalf in respect of the Services (Authorised Agent). We may (in our absolute discretion) accept an application for you to appoint an Authorised Agent, which shall be subject to:
(i) you completing the Authorised Agent Authorisation form;
(ii) the nominated Authorised Agent undertaking and passing any checks that we require (including AML/CTF checks); and
(iii) any other reasonable requirements we may impose from time to time.
(b) In addition to any rights we may have under an Authorised Agent Authorisation form and these Terms of Business, you acknowledge and accept that we, our related parties, officers, employees, consultants, advisers and agents are entitled to rely on the instructions, statements and representations made by an Authorised Agent in respect of the Services as if such instructions, statements and representations were made by you. You acknowledge that we will not investigate or confirm the authority of the Authorised Agent (unless we are actually aware that the instruction was not authorised) in respect of each individual instruction provided by the Authorised Agent. Notwithstanding this we may refuse to act on any instruction until the validity of the instructions have been confirmed, and we (and our related parties, officers, employees, consultants, advisers and agents) will not be liable to you or any other person for any consequences resulting from not acting on the instruction.
(c) You agree that neither you, nor anyone claiming through you, has any claim against us and our related parties, officers, employees, consultants, advisers and agents in relation to acting on instructions received from the Authorised Agent (authorised by you or otherwise).
(d) You acknowledge that there is a risk that fraudulent instructions can be made by someone who is your Authorised Agent.
(e) You must advise us in writing of any change to your Authorised Agent, including if their authorisation rights have been revoked by you.
(f) If you fail to notify us promptly in writing of any change to your Authorised Agent, you remain responsible for any loss or damage arising from or in connection with us acting on any instructions provided by your Authorised Agents.
(g) You release and indemnify us for any loss or damage suffered by you as a result of us relying on this clause 6.4 and the instructions of your Authorised Agent.
7. Anti-money laundering and counter-terrorism financing
(a) We are registered with the Australian Transaction Reports and Analysis Centre (AUSTRAC) as a digital currency exchange service provider (DCE100576808-001) .
(b) We are required to comply with anti-money laundering and counter-terrorism financing (AML/CTF) laws, including the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF Laws).
(c) Prior to providing the Services to you (in our discretion), we will collect and verify your personal information as required under the AML/CTF Laws. We may also report your transaction activity to AUSTRAC.
(d) You acknowledge and agree to provide all reasonable assistance to us in complying with our obligations under the AML/CTF Laws. We may refuse to provide the Services to you and cancel your registration if you do not assist us in complying with the AML/CTF Laws.
(a) In addition to instructions received directly from you or an Authorised Agent, you authorise us to rely and act upon, and treat as fully authorised and binding upon you, any instruction from the email address or phone number associated with your Account, or any instruction via Portal associated with your Account, which purports to have been given by you or on your behalf and which is accepted by us in good faith as having been given by you or on your behalf, without further enquiry on our part as to the genuineness, authority or identity of the person giving or purporting to give such instruction. You will be responsible for and bound by all contracts, obligations, costs and expenses entered into or incurred by us on your behalf in consequence of or in connection with such instructions.
(b) Any instructions and any other documents we require shall be transmitted in such manner as may be specified by us and shall be at your own risk. We shall not be responsible or liable in any way for any direct or indirect losses, damages, costs or expenses suffered by you on account of any instruction not being received by us or not being acted upon. For the avoidance of doubt, you shall not assume that an instruction has been acted upon until you receive confirmation from us. Irrespective of the means of communication used by you for delivery of instructions, we shall not be responsible for and you hereby discharge us from any and all liability whether in contract, tort or otherwise for:
(i) any errors, ambiguity, inaccuracies, incomplete orders or instructions or any omissions in any instructions given by you;
(ii) any delays in transmission or any systems or service unavailability;
(iii) any risks associated with unauthorised interventions, or improper or fraudulent use of such means of communication; and
(iv) any other causes beyond our control.
(c) Neither we nor our directors, officers or employees shall be liable for any direct or indirect losses suffered on account of any instruction not being received by us or not being acted upon. For the avoidance of doubt, the transmission of a Trade instruction to us is not evidence of our receipt or that we have accepted such instruction.
(d) Without limitation we may at our absolute discretion refuse to accept or act in accordance with any instruction without being under any obligation to give any reason, including without limitation if you:
(i) do not follow the applicable procedure exactly;
(ii) use a TOR/VPN service; or
(iii) attempt to procure any other person to pay for your purchase.
(e) If we decline an instruction we will (to the extent permitted by applicable law) take reasonable steps to notify you promptly of declining such instruction and refund any payment, or return any Digital Currency, received by us (less any applicable losses incurred) in connection with the instruction, as soon as possible.
9.1 Purchasing Digital Currency
(a) To initiate a purchase of Digital Currency you must:
(i) deposit into the bank account we notify to you, or ensure we are already holding on your behalf, the purchase amount for the Digital Currency in fiat (Purchase Amount);
(ii) send us an email that:
(A) includes your Customer ID Number (which may be assumed in our discretion if the email address is associated with your Account);
(B) states the Purchase Amount and the Digital Currency you would like to purchase (e.g. USD $1,000 / 0.3 Ether for Bitcoin); and
(C) attaches a valid funds transfer receipt for the Purchase Amount evidencing all required transaction and account details (unless such funds are already held by us for you).
(iii) place a buy order under Portal by:
(A) navigating to the “Trade” page, selecting the Digital Currency you would like to purchase, defining the Purchase Amount of the selected Digital Currency and then clicking “Place Order” when you are logged in to your Caleb & Brown Account via Portal; and
(B) In order to place orders via Portal you will need to have Two-Factor Authentication (2FA) enabled.
(b) If following our receipt of the above your Trade instruction is accepted, we may (in our discretion) send you a Trade order processing email. Upon sending the Trade order processing email the Trade instruction will become binding.
(c) After sending the Trade order processing email we will deduct our Commission from the Purchase Amount, execute the purchase of the specified Digital Currency, send you a Trade order executed confirmation and an invoice detailing your order and hold the purchased Digital Currency on your behalf in accordance with these Terms of Business. Similarly, you can view your Trading History by clicking “Transactions” when you are logged in to your Caleb & Brown Account via Portal.
9.2 Swapping or disposing of Digital Currency
(a) To initiate a swap or disposal of Digital Currency you must:
(i) send us an email that:
(A) includes your Customer ID Number (which may be assumed in our discretion if the email address is associated with your Account);
(B) states the type of Digital Currency you would like to sell; and
(C) states the amount of Digital Currency you would like to sell (Disposal Amount) and the form of consideration (whether fiat or another Digital Currency) you would like to receive (e.g. 0.3 Ether for Bitcoin / $AUD); and
(ii) if we are not holding the full Disposal Amount for you, we will email you the address of our digital wallet into which you must transfer the Disposal Amount prior to accepting a Trade instruction.
(iii) place a sell/swap order under Portal by:
(A) navigating to the “Trade” page, clicking the “Select to Sell” button, in the pop-up window, selecting the Digital Currency you would like to dispose of, defining the Disposal Amount for the selected Digital Currency, and clicking “Place Order” when you are logged in to your Account via Portal; and
(B) In order to place orders via Portal, you will need to have 2FA enabled.
(C) You will only be able to input a Disposal Amount up to the amount of Digital Currency you currently hold. If you have entered a Disposal Amount in excess of what you currently hold, you will be prompted to deposit additional Digital Currency, and be provided with either a QR code to complete the deposit or the wallet address to which you can manually deposit the Digital Currency.
(b) When instructing us to dispose of a Digital Currency, you warrant that the Digital Currency you are providing is legally valid and complies with all applicable laws and regulations.
(c) If following our receipt of the above your order is accepted, we may (in our discretion) send you a Trade order processing email. Upon sending the Trade order processing email the Trade instruction will become binding.
(d) After sending the Trade order processing email we will deduct our Commission from the Disposal Amount, execute the sale of the Disposal Amount, send you the Trade order executed confirmation and an invoice detailing your order and hold the consideration received for the disposal on your behalf in accordance with these Terms of Business. Similarly, you can view your Trading History by clicking “Transactions” when you are logged in to your Caleb & Brown Account via Portal.
9.3 Trade prices
(a) You acknowledge and agree that any Trade executed in accordance with clauses 9.1 or 9.2 will (unless otherwise stated by us) be subject to, and priced on the basis of, the spot market price for the Digital Currency at the time the Trade is executed by us. The applicable market price of a Trade will only be known after the Trade is executed and notified to you through the Trade order executed confirmation.
(b) We may (in our discretion) provide you with an indication of the spot market price for Digital Currencies from time to time, however such indication in no way binds us to providing that price to you in respect of a Trade at any time.
9.4 Minimum trade amount
Without limiting the above, we may (in our discretion) only accept instructions to purchase or dispose of Digital Currency with a minimum trade value of $2,000 unless your instructions were provided via Portal, in which case we may (in our discretion) only accept instructions to purchase or dispose of Digital Currency with a minimum trade value of $500.
(a) We reserve the right to cancel, reverse or refuse to process any Trade at any time if:
(i) you failed to clear any AML/CTF checks or if we have reason to suspect that the transaction involves any criminal activity including but not limited to money laundering, terrorist financing or any other prohibited or illegal use;
(ii) we are unable to proceed with the transaction due to a court order, legal obligation or order by the Government of Australia;
(iii) we believe (in our discretion) the transaction would cause any risk to our business or the business of our service providers;
(iv) we believe (in our discretion) that the transaction cannot occur, including due to a lack of an applicable market, liquidity, pricing or as a result of impacts on the exchange; or
(v) for any other reason we determine in our reasonable discretion, including but not limited to suspecting an error in the transaction.
(b) For the avoidance of doubt, should the Trade be cancelled, reversed or refused by us in accordance with this clause, we are not obliged to offer you the same price or terms in a new transaction.
(a) We reserve the right to exercise our sole and absolute discretion to elect to support any airdrops or similar distributions, including making the determination on whether to make such support available in a market. We are not liable to you or any other person for any loss, cost damage, expense, fees, charges or liability suffered or incurred as a result of or in connection with our failing to support any particular airdrop, or subsequently ceasing our support for any airdrop, or the timing of the implementation of any such airdrop support.
(b) Without limitation, you may not participate in the receipt of any Digital Currency from an airdrop event and we are not required to provide Services to you in connection with any such Digital Currencies if:
(i) you reside in the United States;
(ii) you are located, domiciled, incorporated or otherwise established, or are a resident or citizen in or of any embargoed jurisdiction or country or are a member of any sanctions programs (or list) or equivalent maintained by the United States government, the Australian government, the United Nations Security Council, or any general international sanctions (“Restricted Person”);
(iii) you intend to transact in the Digital Currencies with any Restricted Person(s); or
(iv) you are located, domiciled, incorporated or otherwise established in, or are a resident or citizen of a jurisdiction where it would be unlawful under applicable law for you to participate in the receipt of any Digital Currency from an airdrop event or the provision and availability of such support in the jurisdiction is contrary to local law or regulation or could cause Caleb & Brown to be subjected to any local registration or licensing requirements.
(c) In the event that we elect to support any particular airdrop or similar distribution, you must opt-in to receiving the resultant Digital Currency from the airdrop event. We may notify you of our election by publishing a notification through our Website or notifying you via email.
(d)Notwithstanding clause 9.6 (a) and 9.6 (c), we may, in our sole and absolute discretion and without liability to you, elect not to facilitate any such Airdrop or distribution to you, if it would be commercially unreasonable or impracticable for us to do so.
(e) Subject to these Terms of Business, you remain the beneficial owner of any Assets in your Caleb & Brown Account and the beneficial owner of additional assets resulting from any applicable airdrop or similar distribution of Digital Currency that is supported by Caleb & Brown.
9.7 Network Fork
(a) We reserve the right to exercise our sole and absolute discretion to elect to support any particular fork of a Digital Currency. We are not liable to you or any other person for any loss, cost damage, expense, fees, charges or liability suffered or incurred as a result of or in connection with our failing to support any particular fork, or subsequently ceasing our support for any fork, or the timing of the implementation of any such fork support.
(b) Without limitation, you may not participate in the receipt of any Digital Currency from a fork of a Digital Currency and we are not required to provide Services to you in connection with any such Digital Currencies if:
(i) you are a Restricted Person;
(ii) you intend to transact in the Digital Currencies with any Restricted Person(s); or
(iii) you are located, domiciled, incorporated or otherwise established in, or are a resident or citizen of a jurisdiction where it would be unlawful under applicable law for you to participate in the receipt of any Digital Currency from a fork of a Digital Currency or the provision and availability of such support in the jurisdiction is contrary to local law or regulation or could cause Caleb & Brown to be subjected to any local registration or licensing requirements.
(c) In the event that we elect to support any particular fork, you are not required to opt-in to receiving any resultant Digital Currency from the fork. We may notify you of our election by publishing a notification through our Website or notifying you via email.
(d) Notwithstanding clause 9.7 (a) and 9.7 (c), we may, in our sole and absolute discretion and without any liability to you, elect not to facilitate the distribution of any resultant Digital Currency from a fork of a Digital Currency to you, if it would be commercially unreasonable or impracticable for us to do so.
(e) In the event that a fork of a Digital Currency occurs, we reserve our right to suspend all activities, including deposits, withdrawals, Trades (including purchases, disposals or swaps) in connection with the Digital Currency until we have in our sole and absolute discretion determined that it is appropriate to resume these activities.
10. Nominee Service
(a) We will:
(i) hold any fiat or Digital Currency provided to us by you, or received in connection with completing a Trade on your behalf, under these Terms of Business (Assets) on trust for you in accordance with the Terms;
(ii) only deal with the Assets as directed by you, permitted under the Terms or otherwise required by applicable law. However, you may only direct us to return such Assets to a bank in your name or digital wallet you are the legal and beneficial owner of (as applicable Your Account) or, in the case of Digital Currency, dispose of them in accordance with the Terms. If you receive any Assets in error that do not belong to you or for which you do not otherwise have an ownership entitlement, you must immediately return the Assets in accordance with instructions we provide to you;
(iii) maintain adequate records identifying any property forming part of the Assets as property held by us on your behalf;
(iv) clearly record in our books that any property forming part of the Assets is held on trust for you and not for our own interest; and
(v) keep the Assets segregated from our own property and take all other steps and precautions reasonably necessary to ensure that the Assets are not available to meet the claims of any of our creditors.
(b) If you would like to initiate a transfer of Assets to Your Account you must email us to request the transfer and include in the email:
(i) your Customer ID Number (which may be assumed in our discretion if the email address is associated with your Account);
(ii) the amount of fiat or Digital Currency you would like transferred to Your Account. For the avoidance of doubt, if you do not specify the relevant amount we are entitled to assume this is the entire amount we hold for you at that time; and
(iii) in the case of a transfer (in addition to any other information we require):
(A) domestic fiat transfers, your BSB, bank account number and account name;
(B) international fiat transfers, the bank name, the beneficiary name, account number, SWIFT Code, ABA Routing number, beneficiary address and banking address;
(C) Digital Currency, the public key address of your wallet, for Your Account into which you want the relevant Assets transferred. Note that we do not request, and you should not provide any person (including us) with the private key, password or secret combination for your digital wallet.
(c) We are not liable to you or any other person for any loss, cost damage, expense, fees, charges or liability suffered or incurred as a result of:
(i) you disclosing your private key or your private key becoming known to another person. If this is the case, you must nominate a new digital wallet into which you will receive Digital Currency transfers;
(ii) any delayed transfers due to congestion on any blockchain or cryptocurrency network;
(iii) any failure or error experienced on any applicable blockchain or cryptocurrency network;
(iv) us transferring Digital Currency to the wrong digital wallet as a result of you providing us with the wrong account address details; or
(v) you entering incorrect details in any of your instructions to us.
(d) By providing us with the digital wallet address to which the Assets are to be transferred, you represent and warrant to us that such digital wallet address is correct, owned by you, is under your control, and no other person has access thereto.
(e) Within 5 Business Days of receipt of an instruction under clause 10(b), we will transfer the relevant Assets to Your Account as specified in such notice.
(f) We reserve the right to suspend any transfer of Assets at any time if:
(i) you failed to clear any AML/CTF checks or if we have reason to suspect that the transaction is contrary to our AML/CTF policies and procedures or involves any criminal activity, including but not limited to money laundering, terrorist financing or any other prohibited or illegal use;
(ii) we have reason to suspect that the account or digital wallet to which the Assets are to be transferred is not legally or beneficially owned and controlled by you;
(iii) we determine (in our sole reasonable discretion) that the transfer of any fiat or Digital Currency to you would be unlawful;
(iv) we are unable to proceed with the transfer due to a court order, legal obligation or order by the Government of Australia; or
(v) any other reason we determine in our reasonable discretion, including but not limited suspecting an error in the transaction, and you shall have no claims whatsoever regarding such suspension, and agree to assist us with every request for information in this regard.
(g) You acknowledge that the Digital Currency we transfer to you may not be the same Digital Currency you have originally sent to us, and you shall have no claims in this regard whatsoever.
11. Fees, charges and taxes
(a) We charge you a fee (Commission) which is a percentage of the denominated value (e.g. AUD, USD, ETH, BTC) of your Purchase Amount or Disposal Amount (as applicable).
(b) The rate of Commission for each Trade will be agreed by us and you prior to the Trade being executed.
(c) If you have accessed our Services and opened an Account through a Referral Partner, the Referral Partner may receive a percentage of the Commission paid to us for each Trade made on your Account.
(d) You shall be responsible for payment of all taxes and duties arising out of or in relation to any transactions or in connection with any Service provided under the Terms and where under applicable law such taxes and duties are due to be paid or collected by us then you shall on demand pay us an amount equal to such taxes or duties and indemnify us for the same.
(e) You shall be solely responsible for all filings, tax returns and reports which must be made by you to any relevant authority, whether governmental or otherwise, and for the payment of all taxes (including without limitation any transfer, withholding or value added taxes), levies or duties due in relation to any transactions or in connection with any Service provided under the Terms. Accordingly, you shall at all times remain directly accountable to and liable to the relevant tax authorities for any relevant tax liabilities arising out of any transactions under the Terms or any Services provided by us to you.
(f) All fees, expenses and other amounts payable under the provisions of these Terms are exclusive of any applicable goods and services or other value added, sales, turnover, consumption or similar tax and will be subject to such taxes in addition.
12. Payments and interest
(a) You agree to pay any amounts due to us by you, in such fiat or Digital Currency as we may determine, as they become due regardless of any rights of equity, counterclaim or set-off which you may have against us and free and clear of, and without withholding or deduction for, any taxes of whatsoever nature, unless the same is required by applicable law binding on you.
(b) Unless otherwise agreed, we will not pay you interest on any money or Digital Currency held for you. We will retain interest earned (if any) on any money we hold for you.
(c) You authorise us to use any Assets held by us, or deduct from any amounts payable to us or payable in respect of any action or transaction required or permitted under the Terms or otherwise, to pay any amounts due to us under the Terms. For clarity, this includes taking ownership and dealing with (including selling) any Assets held by us to recover any losses, costs or amounts payable to us.
(d) If you fail to pay any amount when due and payable to us, we reserve the right to charge you interest on any such amount until the date payment is received by us at the effective cost to us of borrowing the due amount as determined in our absolute discretion. Interest will accrue daily and will be due and payable as a separate debt.
(e) If we receive or recover any amount in respect of an obligation of yours in fiat or Digital 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 fiat or Digital Currency other than the currency in which it was due.
(f) This clause 12 will survive termination.
13. Your warranties
You hereby represent and warrant (which representations and warranties shall be deemed to be repeated by you on a daily basis) that:
(a) you have the capacity, and full power and authority, to enter into, these Terms of Business and each transaction and any other documentation relating to the same, and to perform your obligations under the Terms including but not limited to the following:
(i) if you are an individual, you are of an age of majority to enter into these Terms of Business, meet all eligibility requirements, and are fully able and legally competent to agree on the terms, conditions, obligations, affirmations, representations and warranties set forth herein; and
(ii) if you are an Entity, you are duly incorporated and exist under the laws of Australia or the relevant country in which you are incorporated;
(b) you will be liable to us in respect of all obligations and liabilities arising from transactions (including Trades) effected on your instructions;
(c) entering into the Terms or any transaction under the Terms will not violate or conflict with any applicable law, any provision of any constitutional documents or any charge, trust deed, contract or other instrument or any contractual restrictions applicable to, binding on or affecting you or any of your assets or oblige you to create any lien, security interest or encumbrance;
(d) all governmental, regulatory and other consents that are required to have been obtained by you in relation to your entering into the Terms or any transaction (including Trades) under them have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
(e) you will comply with all applicable laws and disclosure requirements of any relevant jurisdiction or regulatory authority which apply in respect of us, you or your investments from time to time and will not engage in or facilitate or undertake any transaction that causes us to breach, or facilitate a breach of, applicable law, including tax evasion, anti-bribery and corruption, anti-money laundering and financial crime;
(f) the information you have provided to us is complete, accurate and not misleading in any respect and that in the event of any change to such information, you will promptly notify us of the same;
(g) you have not relied on any statement made by us in making any decisions regarding transactions in Digital Currency under the Terms;
(h) you are aware:
(i) that we do not provide any recommendations or purport to offer any investment advice of any kind in relation to transactions in Digital Currency; and
(ii) of the speculative and volatile nature of investing in Digital Currencies and you acknowledge and agree that you are capable of gauging the merits and risks of the transaction on your own;
(i) your use of the Services is for your own account, or that of the Entity you are authorised to represent, and is not on behalf of any other person or Entity; and
(j) any Digital Currency you transfer to us is beneficially owned by you, free from any claims, indebtedness, liens, or third-party interests, and there are no legal restrictions on you using any such Digital Currency under the Services.
14. Legal status of Digital Currencies
(a) The legal status of Digital Currencies (including cryptocurrencies, cryptographic coins, tokens and digital assets) remains uncertain in many countries and jurisdictions around the world. Such Digital Currencies may be legally prohibited in certain countries or jurisdictions, or be subject to specific restrictions and limitations with which you are solely responsible for complying at your own risk and expense. We take no position on the legal status of any Digital Currency.
(b) It is your responsibility to undertake your own investigations and enquiries and satisfy yourself of the legal status of the Digital Currency (particularly in Australia). You acknowledge and agree that you use Digital Currencies through the Services at your own risk.
(c) The Services will only support the Digital Currencies we determine from time to time (in our absolute discretion). However, it is your responsibility to ensure that you do not use any Digital Currencies through the Services that are financial products within the meaning of the Corporations Act. It is also your responsibility to ensure that you do not deal in any financial product Digital Currencies through the Services. We will not support financial products in any form.
(d) You acknowledge and accept that:
(i) Digital Currency is not recognised legal tender in Australia and other countries and that Digital Currency is not regulated by any central institution and maybe subject to extreme price volatility;
(ii) you understand the risks involved with Digital Currencies;
(iii) you are responsible to protect your Digital Currency, wallet, computer, software bank account, address and personal data against any theft, fraud or illegal activity;
(iv) all concluded transactions are irreversible;
(v) you have had the opportunity to obtain independent legal and financial advice about the risks associated with buying Digital Currencies; and
(vi) trading Digital Currencies involves risk, especially through price fluctuation.
15. Liability and indemnity
(a) We shall not be liable for:
(i) any default of any counterparty or other entity which holds money or Digital Currency on your behalf or in connection with the Services or through whom transactions on your behalf are conducted; or
(ii) any loss resulting from a failure or error experienced on any applicable blockchain or cryptocurrency network to which the Digital Currency relates; or
(iii) any claim, losses or liability arising as a result of the payment of your Assets to a beneficiary nominated by you in accordance with a Beneficiary Nomination form.
(b) If any guarantee, term, condition or warranty is implied into these Terms of Business under the Australian Consumer Law or any other applicable legislation (a Non-Excludable Provision) and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for a breach of the Non-Excludable Provision is limited to the supplying of the services again, or the payment of the cost of having the services supplied again.
(c) Subject to paragraphs (d) and (e) and our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, our maximum aggregate liability for all claims under or relating to these Terms of Business or the Website whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to:
(i) our Commission, in respect of any liability arising in respect of a Trade; and
(ii) otherwise $100.
(d) Subject to our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, we are not liable for, and no measure of damages will, under any circumstances, include:
(i) special, indirect, consequential, incidental or punitive damages; or
(ii) damages for loss of profits, revenue, goodwill, anticipated savings or loss or corruption of data, whether in contract, tort (including negligence), in equity, under statute or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
(e) Our liability to you is diminished to the extent that your acts or omissions (or those of a third party) contribute to or cause the loss or liability.
(a) You may terminate these Terms of Business at any time by sending us written email Notice and instruction to transfer all Assets to Your Accounts in accordance with clause 10(b) which shall take effect from the later of the date acknowledged by us and the date we cease to hold any Assets for you.
(b) We may terminate these Terms of Business by sending you written Notice which shall specify the date on which such termination shall take effect.
(c) Termination of these Terms of Business pursuant to this clause shall be:
(i) without prejudice to the completion of any transaction or transactions already initiated and any transaction or all transactions outstanding at the time of termination will be settled and delivery made;
(ii) without prejudice to and shall not affect any accrued rights, existing commitments or any contractual provision intended to survive termination; and
(iii) without penalty or other additional payment save that you will pay:
(A) our outstanding Commission;
(B) any expenses incurred by us in the provision of the Services or under these Terms of Business payable by you; and
(C) any additional expenses incurred by us as a consequence of termination.
17. Nomination of Beneficiary
(a) You may nominate a person or persons to be transferred your Assets on your death (Your Beneficiary) by sending us a completed Beneficiary Nomination form by email.
(b) If we have received a valid Beneficiary Nomination at the time of your death:
(i) we will transfer your Assets to Your Beneficiary in the proportions you direct in the Beneficiary Nomination; and
(ii) your estate shall have no interest in your Assets.
(c) You may revoke a Beneficiary Nomination at any time during your lifetime by sending us a valid Cancellation of Beneficiary Nomination form by email.
(d) For a Beneficiary Nomination or a Cancellation of Beneficiary Nomination to be valid, you must sign and date the form in the presence of two adult witnesses who are not nominated as a beneficiary in the Beneficiary Nomination or an existing Beneficiary Nomination.
(e) If we pay your Assets to your Beneficiary in accordance with a valid Beneficiary Nomination form, you and your legal personal representative indemnify us against any and all claims, losses or liability arising as a result of the payment of your Assets to Your Beneficiary.
(f) Without limiting the scope of the preceding subclause, a claim, loss or liability arising as a result of the payment of your Assets to your Beneficiary, may include but is not limited to:
(i) a claim against us by your executor, administrator, successors or other beneficiaries;
(ii) your Assets being designated as notional estate of a deceased person by a notional estate order under Chapter 3 of the Succession Act 2006 (NSW) or equivalent legislation; or
(iii) any claim made by a trustee in bankruptcy for the amount or value of your Assets.
(a) We and you will at all times keep confidential and shall not disclose to a third party any information of a confidential nature or otherwise acquired in connection with these Terms or the Services, except for information which either of is bound to disclose under compulsion of applicable law or by request of regulatory agencies or to our respective professional advisers or, in our case, where disclosure to a third party such as a digital currency exchange, service provider or applicable third party (including any bank) is necessary in order to facilitate the proper performance of the Services to you.
(b) We shall be under no duty to:
(i) disclose to you any information in making any decision;
(ii) take any action in connection with the provision of the Services; or
(iii) take into account any information or other matters which come to our notice or the notice of any of our directors, officers, partners, employees and agents where this would, or we reasonably believe that in doing so would, be a breach of any duty of confidence to any other person.
19. Data protection
(a) comply with all laws applicable to our use and custody of any data we hold about you in connection with the Services (Customer Data) (including but not limited to all applicable privacy laws) or Digital Currency we hold on your behalf;
(b) notify you if we become aware of any unauthorised access to the Customer Data or loss of Digital Currency we hold on your behalf; and
(c) establish and maintain measures and safeguards that are no less rigorous than the measures and safeguards that can reasonably be expected by reasonable, professional and reputable providers of services similar to the Services and are no less rigorous than the measures and safeguards we use for our own business:
(i) to guard against the destruction, loss or alteration of the Customer Data or Digital Currency in our possession or control;
(ii) to prevent any person who does not have the appropriate level of security clearance from gaining access to the Customer Data; and
(iii) to establish anti-virus measures to protect the Customer Data.
20. Assignment and amendment
(a) These Terms of Business, or any of the rights and/or obligations provided hereunder, may not be assigned or otherwise transferred by you to any other person or entity, whether by operation of law or otherwise, without our express written consent, and any attempted assignment in violation of this prohibition shall be void ab initio and of no effect.
(b) We may assign or transfer these Terms of Business and/or any or all of its rights and/or obligations hereunder at any time to any of our related bodies corporate (as defined under the Corporations Act). Any permitted assignment or transfer of or under these Terms shall be binding upon, and inure to the benefit of the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto.
21. Complaints and address for notices
If you have a complaint about us, you should raise it in the first instance with your broker. If you are not satisfied with the response of your broker (or if you prefer not to raise the matter with such person) please contact [email protected].
22. Notices, instructions and other communications
(a) All correspondence, notices, certificates and statements of account (Notices) may be provided to you by whatever means unless otherwise required by applicable law. Any Notices from us to you shall be sent to the last email address held for you on our records (as applicable).
(b) All Notices will, in the absence of manifest error, be deemed correct, conclusive and binding on you if not objected to in writing by you within three Business Days of receipt.
(c) Any Notice to be made by you to us shall be sent to your broker&39;s email address or such other e-mail address provided by us to you for such purposes.
(d) A written Notice shall be deemed to have been received by you:
(i) if delivered by hand on a Business Day, on the day of delivery and, if delivered by hand on a day other than a Business Day, on the first Business Day after the day of delivery;
(ii) if sent by first class post or airmail, on the second Business Day after the day of posting if the address is in the same country as that of the sender and if to a different country on the fourth Business Day;
(iii) if sent by facsimile or e-mail transmission before 5:00pm (Melbourne time) on a Business Day, on the day of transmission; and
(iv) if sent by facsimile or e-mail transmission on a day other than a Business Day or after 5:00pm (Melbourne time) on a Business Day, on the first Business Day after transmission.
(e) A Notice or communication made or delivered to us will be effective only when actually received by the appropriate department or officer responsible for the relevant subject matter.
23. Force majeure
(a) We will not be liable for any partial or non-performance of our obligations caused by such events as fires, telecommunications, utility, or power failures, equipment failures, labour strife, riots, war, non-performance of our vendors or suppliers, acts of God, pandemic or epidemic events, digital currency exchange default, custody provider default, bank default, suspension, failure or closure or other causes over which we have no reasonable control.
(b) We, our suppliers, counterparties, custody providers and applicable third parties such as digital currency exchanges and banks may experience cyber-attacks, extreme market conditions, or other operational or technical difficulties which could result in the immediate halt of transactions either temporarily or permanently. Provided that we have taken reasonable commercial and operational measures to prevent such events in technical systems controlled by us, we are not and will not be responsible or liable for any indirect loss, loss of data or any other loss and/or damage of any sort incurred by you as a result of such cyber-attacks, operational or technical difficulties or suspensions of transactions.
(a) You acknowledge and agree that in conducting business with us pursuant to these Terms, you do not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person other than as expressly set out in these Terms.
(b) No failure to exercise or delay in exercising any right or remedy under these Terms of Business shall constitute a waiver thereof and no single or partial exercise of any right or remedy under these Terms of Business shall preclude or restrict any further exercise of such right or remedy. The rights and remedies contained in these Terms of Business are cumulative and not exclusive of any rights and remedies provided by applicable law.
(c) If any provision in these Terms of Business shall in whole or in part be held by any court of competent jurisdiction to any extent to be illegal or unenforceable under any enactment or rule of law that provision or part shall to that extent be deemed not to form part of these Terms of Business and the enforceability of the remainder of these Terms of Business shall not be affected thereby.
(d) To enable us to comply with our reporting obligations under applicable law, you agree to promptly deliver to us any information that we may reasonably require from time to time.
25. Governing law and rights of third parties
(a) These Terms of Business are governed by the laws of Victoria.
(b) You and we agree that these Terms of Business (and any non-contractual obligations, disputes or claims arising out of or in connection with them) shall be governed by and construed in accordance with the laws of Victoria.
(c) Any officer (as defined under the Corporations Act) can rely on and enforce the provisions of these Terms of Business relating to any exclusion or limitation of liability applicable to them. Save for our officers, no person who is not a party to these Terms of Business may enforce any of their provisions or rely on any exclusion or limitation of liability contained herein.
You acknowledge that if you have accessed our Services through a Referral Partner, the Referral Partner may receive a commission in accordance with clause 11(c) in exchange for referring you to us.