This VIRTUAL ASSET SERVICES AGREEMENT (this “Agreement”), is made and entered into on [date] (the “Effective Date”), by and between:
(i) Gate Information Pty Ltd (ABN: 60 659 401 617), a company incorporated in Australia and having its registered office at Level 44, 600 Bourke Street, Melbourne VIC 3000 (hereinafter referred to as “Gate AU”); and
(ii) [Entity Name of Counterparty] [(ABN:)], a company incorporated in Australia and having its registered office at [address] (hereinafter referred to as “Counterparty”).
Gate AU and Counterparty are hereinafter referred to individually as a “Party” and jointly as the “Parties”.
Before signing this Agreement, both Parties should be aware that the risk of loss in trading or holding Virtual Assets (as defined below) is substantial. The value of Virtual Assets is subject to extreme volatility. Each Party should therefore carefully consider whether trading or holding Virtual Assets is suitable in light of their respective financial conditions.
WHEREAS, the Parties desire to enter into periodic Trade Confirmations (as defined below) for the purchase and sale of Virtual Assets (as defined below) as set forth herein and therein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 Definitions
Capitalized words used in this Agreement are defined and shall have the meaning given to them in this Article 1.
(a) “Acceptance Window” shall have the meaning given to it under Section 2.1(c).
(b) “Affiliate” means: (i) with respect to a natural person, their spouse, de facto spouse or immediate family members, body corporate controlled by one or more of that person, their spouse, de facto spouse or immediate family members, and the executor of their estate; or (ii) with respect to a body corporate (whether incorporated or not), any individual or legal entity directly or indirectly controlling, controlled by or under common control with such Party, where control may be by either management authority, contract, or shareholding interest.
For the purpose of this definition, an individual or a legal entity has control, if it (x) holds the right, directly or indirectly, to appoint or remove the directors or equivalent persons of the company who hold a majority of the voting rights at meetings of the directors or equivalent persons on all or substantially all matters; (y) holds, directly or indirectly, more than 30% of the rights to vote on those matters that are to be decided upon by a vote of the members or equivalent persons of the company; or (z) has the right to exercise, or actually exercises, significant influence or control over the company.
(c) “Agreed Trade” shall have the meaning given to it under Section 2.1(d).
(d) “Applicable Law” shall mean all laws, orders, decrees, rules, regulations, circulars, notices or guidelines (including the requirements of any Regulatory Authority) having legal effect and as applicable to a Party in respect of its rights and/or obligations under this Agreement in force in any applicable jurisdiction from time to time. These include anti-money laundering, anti-bribery, anti-terrorist financing, Sanctions, data privacy, tax and consumer protection laws (as applicable).
(e) “Authorized Trader” shall have the meaning given to it under Section 2.5.
(f) “Business Day” means a day on which banks are open for business in Hong Kong Special Administrative Region of the People’s Republic of China (excluding Saturdays, Sundays, or public holidays).
(g) “Claim” shall mean any claim, action, audit, investigation, inquiry or other proceeding brought or instituted against a Party or any of its Affiliates (and/or one or more of their employees, shareholders, directors or representatives) by a person or entity.
(h) “Confidential Information” shall collectively refer to all non-public information or material disclosed or provided by one party (“Disclosing Party”) to the other, either orally or in writing, or obtained by the party receiving such information (“Receiving Party”) from a third party or any other source, concerning any aspect of the business or affairs of the Disclosing Party or its Affiliates, including but not limited to, information relating to this Agreement, and any information or material pertaining to products, formulae, specifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory, discoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and supplier lists, raw materials, costs of goods and relationships with third parties.
Confidential Information shall not, however, include any information that (i) is or becomes available to the public through no breach of this Agreement; (ii) was previously known by Receiving Party without any obligation to Disclosing Party to hold it in confidence; (iii) is obtained by Receiving Party, without confidentiality restrictions, from a third party free to disclose such information without restriction; (iv) is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information as established by written records of Receiving Party; or (v) is approved for release by written authorization of the Disclosing Party, but only to the extent of such disclosure.
(i) “Counterparty Account” shall mean a financial account maintained by Counterparty at financial institutions or electronic money institutions for the deposit or withdrawal of fiat currencies. Counterparty shall notify Gate AU of the latest list of Counterparty Accounts by notification under Section 6.10.
(j) “Counterparty Purchase Price” shall mean the price per Counterparty Purchased Virtual Asset multiplied by the total number of Counterparty Purchased Virtual Assets, in accordance with applicable Trade Confirmation.
(k) “Counterparty Purchased Virtual Assets” shall mean certain number and type of Virtual Assets that Counterparty is obligated to purchase from Gate AU, in accordance with applicable Trade Confirmation.
(l) “Counterparty Wallet” shall have the meaning given to it under Section 2.2(c).
(m) “Foreign Bank” shall mean an organization that (i) is organized under the laws of a foreign country, (ii) engages in the business of banking, (iii) is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or principal banking operations, (iv) receives deposits to a substantial extent in the regular course of its business, and (v) has the power to accept demand deposits, but does not include the U.S. branches or agencies of a foreign bank.
(n) “Foreign Shell Bank” shall mean a Foreign Bank without a Physical Presence in any country but does not include a regulated affiliate.
(o) “Fork” shall mean a change to the protocol of a Virtual Asset wherein a permanent divergence in the blockchain results in two or more versions of a single Virtual Asset. By way of example, on August 1, 2017, a fork of Bitcoin occurred which resulted in two separate blockchains (Bitcoin and Bitcoin Cash), each supporting a distinct, tradeable Virtual Asset.
(p) “Gate AU Account” shall mean a financial account maintained by Gate AU at financial institutions or electronic money institutions for the deposit or withdrawal of fiat currencies. A list of Gate AU Account shall be made available on the Gate AU website or be communicated to the Authorized Traders of Counterparty prior to or at the point of the transaction.
(q) “Gate AU Purchase Price” shall mean the price per Gate AU Purchased Virtual Asset multiplied by the total number of Gate AU Purchased Virtual Assets, in accordance with applicable Trade Confirmation.
(r) “Gate AU Purchased Virtual Assets” shall mean certain number and type of Virtual Assets that Gate AU is obligated to purchase from Counterparty, in accordance with applicable Trade Confirmation.
(s) “Gate AU Quote” shall have the meaning given to it under Section 2.1(b).
(t) “Gate AU Wallet” shall have the meaning given to it under Section 2.2(b).
(u) “Loss” shall mean any claim, cost, loss, damage, judgment, penalty, interest, and/or expense (including reasonable attorneys’ fees) arising out of any Claim.
(v) “Non-Cooperative Jurisdiction” shall mean any country or territory that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering (“FATF”). See http://www.fatfgafi.org for FATF’s list of non-cooperative countries and territories.
(w) “OFAC” shall mean the United States Office of Foreign Assets Control. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at http://www.treas.gov/offices/enforcement/ofac/.
(x) “Physical Presence” shall mean a place of business that is maintained by a Foreign Bank and is located at a fixed address, other than solely a post office box or an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, at which location the Foreign Bank (i) employs one or more individuals on a full-time basis, (ii) maintains operating records related to its banking activities, and (iii) is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities.
(y) “Regulatory Authority” shall mean any governmental, regulatory authority or law enforcement department, agency, commission, board, tribunal, crown corporation or other law, rule or regulation making entity (including any stock exchange or central bank) in any jurisdiction.
(z) “Required Party” shall have the meaning given to it under Section 6.6.
(aa) “Sanction(s)” shall mean any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the Australian Government (including the Department of Foreign Affairs and Trade and the Australian Sanctions Office); (ii) the United States government; (iii) the United Nations; (iv) the European Union; (v) the United Kingdom; (vi) Superintendencia de Bancos de Panamá; (vii) any other jurisdictions selected for inclusion hereunder by Gate AU from time to time; and/or (viii) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the OFAC, the United States Department of State, and His Majesty’s Treasuries.
(bb) “Settlement Date” shall refer to the date set forth in applicable Trade Confirmation.
(cc) “Subject Party” shall have the meaning given to it under Section 6.6.
(dd) “Trade Confirmation” shall have the meaning given to it under Section 2.1(e).
(ee) “Trade Request” shall have the meaning given to it under Section 2.1(a).
(ff) “Valid Communication” shall have the meaning given to it under Section 2.1.
(gg) “Virtual Asset” shall mean any digital representation of value, including a virtual currency, cryptocurrency, token, coin, or virtual commodity (but which does not have legal currency or monetary status and which is not authorized or guaranteed by any Regulatory Authority), that are recognized as a mean of exchange by natural or legal persons and that can be digitally transferred, stored and traded, with or without conditions, and thus can be used for payment, investment or other purposes, as determined and approved by Gate AU from time to time for use in connection with the Virtual Asset Services.
(hh) “Virtual Assets Network” shall mean the peer-to-peer computer network, or applicable protocol, that governs the transfer of the applicable virtual assets.
(ii) “Virtual Asset Services” shall mean the service provided by Gate AU for the overthe-counter trading of Virtual Assets.
1.2 Interpretation
The headings in this Agreement are inserted for convenience only and shall not affect their construction or interpretation. Documents incorporated by reference into this Agreement form part of the Agreement and shall have effect as if set out in full in the body of this Agreement. Unless otherwise stated, references to clauses are to the clauses of this Agreement.
A reference in this Agreement to a particular law is a reference to it as it is in force for the time being taking into account any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular. Words referring to a particular gender shall include the other gender.
This Agreement shall be binding on, and ensure to the benefit of, each of the Parties and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A “person” shall mean any individual, corporation, partnership, association, limited liability company, trust, estate or other entity (whether or not having separate legal personality), either individually or collectively.
2.1. Trade Request
From time to time during the term of this Agreement, either Party may engage the other Party in discussions regarding the purchase or sale of a specified amount of a given Virtual Assets at a specified price. Such discussions may be conducted via a form of valid communication as agreed by both Parties in Exhibit A, which may include email, telegram, and any other written means or by telephone at an Authorized Number (as stated in Exhibit A) (the “Valid Communication”). Any updates to Exhibit A shall be communicated to the other Party by notification under Section 6.10. Unless otherwise indicated by Gate AU, the Parties shall effect the purchase or sale of the Virtual Assets in accordance with the following procedures:
(a) Counterparty may submit to Gate AU, via Valid Communication, a request to purchase or sell specified Virtual Assets (the “Trade Request”) on a spot basis. Gate AU may also invite Counterparty to submit a Trade Request via Valid Communication.
(b) Upon receipt of the Trade Request, Gate AU may provide to Counterparty, via Valid Communication, a price (which may be denominated in a fiat currency or another Virtual Asset) at which it is willing to sell or purchase (as the case may be) a specified quantity of such Virtual Assets (the “Gate AU Quote”).
(c) For a Gate AU Quote to be accepted, Counterparty must accept such Gate AU Quote via Valid Communication within fifteen (15) seconds of the time that the Valid Communication is sent (the “Acceptance Window”); provided, however, that Gate AU may withdraw a Gate AU Quote given by Valid Communication at any time prior to Counterparty’s acceptance.
(d) If Counterparty accepts the Gate AU Quote within the Acceptance Window, a binding transaction will be deemed to have been executed at the time of acceptance, on the terms set forth in the Gate AU Quote (the “Agreed Trade”); if Counterparty fails to accept the Gate AU Quote within the Acceptance Window, the Gate AU Quote shall be deemed to be rejected and shall expire immediately, and no transaction may be effected in accordance with such Gate AU Quote. Notwithstanding anything to the contrary herein, if Gate AU determines that a Gate AU Quote contains any error with respect to the price or amount of Virtual Assets set forth therein, then Gate AU shall have the right to cancel the Agreed Trade based upon such Gate AU Quote by delivering notice to Counterparty within two (2) minutes after Counterparty’s acceptance of such Gate AU Quote.
(e) Following the Agreed Trade, Gate AU shall send to Counterparty a summary of the terms of the Agreed Trade including the following information: (i) the type and amount of Virtual Assets to be purchased or sold; (ii) whether Gate AU is selling or purchasing the relevant Virtual Assets; (iii) the Settlement Date; (iv) the price per Virtual Asset, the aggregate price to be paid by the purchaser, and any additional fees (if applicable); and (v) other items (including but not limited to wallet address and/or payment account details, and other required information), which shall become binding on both Parties subject to the further terms contained in this Agreement (the “Trade Confirmation”).
(f) The Parties acknowledge and agree that the failure of Gate AU to send such Trade Confirmation shall not affect the validity of the Agreed Trade, and in such case, terms of the Agreed Trade shall prevail.
2.2. Purchase and Sale
(a) On each Settlement Date, Counterparty or Gate AU, as the case may be, shall sell, transfer, and deliver Gate AU Purchased Virtual Assets or Counterparty Purchased Virtual Assets, respectively, as specified in applicable Trade Confirmation, to the other Party, and such purchaser shall purchase all of the other Party’s right, title, and interest in and to such Gate AU Purchased Virtual Assets or Counterparty Purchased Virtual Assets from the seller.
(b) Promptly following the Trade Confirmation, (i) if Counterparty is purchasing the Counterparty Purchased Virtual Assets from Gate AU, then Counterparty shall deliver the Counterparty Purchase Price to Gate AU by transfer of immediately available funds to a corresponding Gate AU Account in the designated fiat currency or Virtual Assets on the designated Virtual Assets Network to the wallet address designated by Gate AU in advance (“Gate AU Wallet”), or (ii) if Gate AU is purchasing the Gate AU Purchased Virtual Assets from Counterparty, then Counterparty shall deliver, or shall direct its agents or designees to deliver, the Gate AU Purchased Virtual Assets to Gate AU by transfer of immediately available Virtual Assets on the designated Virtual Assets Network to the designated Gate AU Wallet.
(c) Promptly following payment of the Counterparty Purchase Price or transfer of the Gate AU Purchased Virtual Assets by Counterparty, as set forth in Section 2.2(b) above, (i) if Counterparty is purchasing the Counterparty Purchased Virtual Assets from Gate AU, then Gate AU shall deliver, or shall direct its agents or designees to deliver, the Counterparty Purchased Virtual Assets to Counterparty by transfer of immediately agreed Virtual Assets on the designated Virtual Assets Network to the wallet address designated by Counterparty during the Counterparty onboarding process at Gate AU or in other correspondence in advance (each a “Counterparty Wallet”), or (ii) if Gate AU is purchasing the Gate AU Purchased Virtual Assets from Counterparty, then Gate AU shall deliver or shall direct its agents or designees to deliver, the Gate AU Purchase Price to Counterparty by transfer of immediately agreed funds to a corresponding Counterparty Account in the designated fiat currency or Virtual Assets on the designated Virtual Assets Network to the designated Counterparty Wallet.
(d) In the event that an Agreed Trade is not settled on the Settlement Date, Gate AU shall have the right to terminate such Agreed Trade at Gate AU’s sole discretion.
2.3. Term
(a) This Agreement shall remain in effect until terminated in writing by either Party with five (5) Business Days’ prior notice.
(b) During the term of the Agreement, Gate AU may terminate the Agreement and/or applicable Trade Confirmation(s) without notice under the following circumstances, where:
(i) Gate AU reasonably believes that Counterparty’s use of the Virtual Asset Services is in violation of any Applicable Law and/or the Agreement;
(ii) Counterparty fails to make any payment in accordance with the Agreement and/or applicable Trade Confirmation(s);
(iii) at the sole discretion of Gate AU, it becomes or may become contrary to Applicable Law for Gate AU to maintain or give effect to all or any of the obligations under the Agreement and/or applicable Trade Confirmation(s) or otherwise provide access to the Virtual Asset Services;
(iv) Gate AU is requested to close out any transactions under applicable Trade Confirmation(s) (or any part thereof) by any Regulatory Authority (whether or not the request is legally binding);
(v) Gate AU, at its sole discretion, considers it desirable or necessary to close out any transactions under applicable Trade Confirmation(s) (or any part thereof) to maintain the trading safety of the Virtual Asset Services; or
(vi) in the event that Counterparty becomes unable to meet its obligations as it becomes due or has a bankruptcy petition presented against Counterparty, or Counterparty proposes a form of composition or arrangement to its creditors, or if Counterparty ceases or threatens to cease all or part of its business.
2.4. Taxes
The Gate AU Purchase Price or Counterparty Purchase Price, as applicable, is exclusive of any applicable taxes. To the extent any taxes are applicable on the sale of the Gate AU Purchased Virtual Assets or Counterparty Purchased Virtual Assets, Counterparty shall be obligated to pay all applicable taxes. To the extent that Gate AU does not collect any applicable taxes but it is later determined that taxes were collectible by Gate AU, Counterparty shall pay such applicable taxes to Gate AU upon notice of the applicable taxes. Gate AU is not liable for any taxes that Counterparty is legally obligated to pay, in any jurisdiction, which are incurred or arise in connection with or related to Counterparty’s business activities (under this Agreement or otherwise), and all such taxes will be the financial responsibility of Counterparty.
2.5. Authorized Traders
No person other than the signatory to this Agreement shall have the ability to place orders with Gate AU on behalf of Counterparty; provided, however, that Counterparty may designate authorized individuals to trade with Gate AU on its behalf (each an “Authorized Trader”) by listing the names and titles of such individuals in Exhibit B attached hereto. At any time after entering into this Agreement, Counterparty may designate additional Authorized Traders by sending an email to otc_au@gate.com, stating Counterparty’s intention to authorize such individual(s) to trade on its behalf. Such designation shall only be valid if sent by Counterparty from the email address specified in Exhibit B or, if no email address has been specified, from the email address designated for receipt of notice in Section 6.10 below.
2.6. Forks
Unless specifically contemplated by a Trade Confirmation, this Agreement shall not be construed to include in the Gate AU Purchased Virtual Assets or Counterparty Purchased Virtual Assets any additional cryptocurrencies resulting from a Fork of any Virtual Assets.
3.1. Gate AU Representations and Warranties
Gate AU represents and warrants to Counterparty, as of the Effective Date and on each Settlement Date:
(a) Gate AU is a corporation duly organized, validly existing, and in good standing under the laws of the place of its incorporation. Gate AU has all necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by Gate AU and (assuming due authorization, execution and delivery by Counterparty). This Agreement creates legally binding obligations on Gate AU and is enforceable against Gate AU in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally.
3.2. Counterparty Representations, Warranties and Undertakings
Counterparty hereby represents and warrants to Gate AU, as of the Effective Date and on each Settlement Date:
(a) the information relating to Counterparty set forth in this Agreement and all information and documents provided by Counterparty before or after entering into this Agreement including but not limited to information on its financial status and creditworthiness, activities, shareholders (if any, and the ultimate beneficial owners), registered office address and principal place of business, as Gate AU requests from time to time, are true, accurate, complete, and up-to-date as of the date it was provided in all respects, except to the extent that Counterparty has provided prompt notice of any changes to such information in writing.
(b) Counterparty has not withheld from Gate AU any information which makes the information provided to Gate AU misleading, incomplete, inaccurate, or untrue in any manner as of the date it was provided.
(c) Counterparty is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized, and it has obtained all necessary regulatory approval, licenses, consents, registrations, power, and authority to enter into and carry out its obligations under this Agreement and each Trade Confirmation and conduct its business in its current form.
(d) This Agreement constitutes binding obligations on Counterparty and is enforceable against Counterparty.
(e) The entry into and performance by Counterparty of this Agreement and/or any Agreed Trade, will not involve or result in a contravention of or conflict with: (i) its constitutional documents; and/or (ii) any contractual or other obligation or restriction that is binding on it as a party or any of its assets.
(f) Counterparty is a sophisticated party and is fully familiar with the inherent risks involved in Virtual Assets and the transactions contemplated in this Agreement, including, without limitation, risk of new financial regulatory requirements, potential loss of capital, and risks due to volatility of the price, and it is capable of assuming, and will voluntarily assume, all risks associated with the Agreement and each Trade Confirmation.
(g) Neither the execution and delivery of this Agreement, the transactions contemplated in this Agreement, and/or any Agreed Trade, does or will violate any Applicable Law in the jurisdiction of its place of incorporation, place of principal office, or to which Counterparty is subject to.
(h) Neither the Counterparty, any Affiliate of Counterparty, nor any person for whom Counterparty is acting as an agent or nominee for, as the case may be, (i) bears a name that appears on the list of Sanctions; (ii) is a Foreign Shell Bank; or (iii) resides in or whose subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction.
(i) Counterparty is not the subject of any actual, pending, or threatened public or nonpublic investigations, existing enforcement actions, litigation, arbitration, or other court or arbitral proceedings which could be anticipated to have any material adverse effect on the transactions contemplated in this Agreement or the accuracy of the representations and warranties hereunder. Unless prohibited by any Applicable Law, Counterparty shall immediately notify Gate AU, if it becomes aware of any such investigations, actions or proceedings.
(j) Counterparty enters into this Agreement in its own capacity for its own benefit and not as a trustee for any other third parties.
(k) Counterparty is the sole legal and beneficial owner of the Gate AU Purchased Virtual Asset, Counterparty Account, and Counterparty Wallet, and for each Agreed Trade, Counterparty has the legal and equitable right to dispose of and deal with such fiat currencies and/or Virtual Assets representing the Counterparty Purchase Price or the Gate AU Purchased Virtual Assets (as the case may be) free and clear from any security, interest, lien, charge, mortgage, claim (pending or threatened), encumbrance, escrow or restriction on transfer. Each of such Counterparty Wallets is owned by and operated solely for the benefit of Counterparty, and no person, other than Counterparty, has any right, title or interest in any such Counterparty Wallets.
(l) Unless expressly agreed by Gate AU, no third party agent, broker, finder or other entities acting on behalf of Counterparty is or will be entitled to any brokers’ or finders’ fee or any other commission or similar fee from Gate AU in connection with the transactions contemplated by this Agreement.
(m) Counterparty agrees, understands and acknowledges that Gate AU does not provide and will not provide any fiduciary, advisory, exchange or other similar services to Counterparty and/or its Affiliate(s).
(n) Counterparty has adequate information to make an informed decision to enter into transactions contemplated by this Agreement. Counterparty is solely responsible for its decisions to send each Trade Request and accept a Gate AU Quote and has uated and understood all risks related to each Trade Request and Gate AU Quote.
(o) Other than as expressly set forth in this Agreement, Counterparty acknowledges that it has not relied on any statement or representation by Gate AU (whether written or oral) when entering into any transaction contemplated by this Agreement.
Counterparty further undertakes to Gate AU, as of the Effective Date, on each Settlement Date and continuing during the term of this Agreement, that it shall not remit, or authorize to remit, part of or all of assets, funds, monies, and/or Virtual Assets received or obtained relating to any transaction contemplated by this Agreement, including but not limited to Agreed Trades, to any person whose place of residence, place of incorporation, registered address, or place of business is in the mainland of the People’s Republic of China, and it shall abide by any other conditions prescribed by Gate AU and notified to Counterparty from time to time.
4.1. Events of Default
Each of the following shall be deemed an “Event of Default” by Counterparty:
(a) Counterparty fails to comply with any provision of, or perform any obligation under this Agreement and/or Trade Confirmation(s), including but not limited to the obligation to deliver to Gate AU the Counterparty Purchase Price or the Gate AU Purchased Virtual Assets, as the case may be, in accordance with applicable Trade Confirmation;
(b) Any representation, warranty or undertaking made by Counterparty in this Agreement or in any document or instrument delivered under or in connection with this Agreement is not or ceases to be true, accurate or complete in any aspect;
(c) Counterparty has instituted against it a proceeding seeking a judgement of insolvency or bankruptcy or any other relief under any Applicable Law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and such proceeding or petition is instituted and either: (i) results in a judgement of insolvency or bankruptcy or the entry of an order for relief of the making of an order for its winding-up or liquidation, or (ii) is not dismissed, discharged, stayed or restrained, in each case within sixty (60) days of the institution or presentation thereof;
(d) Counterparty is unable to pay its debts upon maturity;
(e) Any Regulatory Authority with jurisdiction over Counterparty suspends the conduct of Counterparty’s usual business or revokes any material authorizations, memberships, licenses or other similar approvals required for Counterparty to satisfy any of its obligations under this Agreement and/or Trade Confirmation(s); or
(f) Where the source of funds of Counterparty is deemed or reasonably suspected (whether by a Regulatory Authority, by us acting in good faith, or otherwise) to be proceeds of illicit activities.
4.2. Remedies
Upon the occurrence of any Event of Default, Gate AU is entitled to, at its sole and absolute discretion, take any one or more of the following actions:
(a) Cancel and/or terminate any unsettled Agreed Trade and/or this Agreement and require Counterparty to pay an amount reasonably determined by Gate AU to compensate it for any and all Losses arising (whether directly or indirectly) from or in connection with, or anything done or not done as a direct or indirect consequence of, the cancellation and termination of any transaction under the Agreement, including any cost of funding and costs incurred as a result of Gate AU having to terminate, liquidate, obtain or reestablish any hedge or related trading position;
(b) Set off any obligations owed by Gate AU to Counterparty against any obligations owed by Counterparty to Gate AU;
(c) Terminate any or all of Gate AU’s obligations for future performance (if any) owed to Counterparty; and/or
(d) Take such other actions as Gate AU, at its sole and absolute discretion, acting in good faith, deems necessary or appropriate for its protection, without notice or advertisement.
4.3. Indemnity
Counterparty shall defend, indemnify, and hold harmless Gate AU and its Affiliates, and each of their employees, directors, agents, shareholders and representatives (each an “Indemnified Party”) from and against any Loss incurred or suffered (whether directly or indirectly) by such Indemnified Party to the extent that any such Loss arises out of or is in connection with:
(a) the breach of any Applicable Law by Counterparty;
(b) the breach of any provision of this Agreement including any representations, warranties and undertakings contemplated in this Agreement and/or any Trade Confirmation(s) by Counterparty;
(c) any Loss caused (whether directly or indirectly) by Counterparty, Counterparty’s Affiliates, or any of their employees, directors, agents, shareholders and representatives; or
(d) the default, negligence or fraud on the part of Counterparty, Counterparty’s Affiliates, or any of their employees, directors, agents, shareholders and representatives.
4.4. Indemnification Procedure
In connection with any Claim or Loss hereunder, the Indemnified Party may:
(a) give Counterparty prompt notice of the relevant Claim(s) and Loss(es) (however, any delay in notification will not relieve Counterparty of its obligations under this Agreement);
(b) where applicable, cooperate reasonably with Counterparty (at Counterparty’s sole expense) in connection with the defense or settlement (as the case may be) of the relevant Claim(s) and Loss(es); and/or
(c) where applicable, permit Counterparty to control the defense or settlement (as the case may be) of the relevant Claim(s) and Loss(es), except that Counterparty may not enter into any settlement of any relevant Claim(s) and Loss(es) without the Indemnified Party’s prior written consent if such settlement arises from or is in connection with any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Indemnified Party or otherwise requires the Indemnified Party to take or refrain from taking any material actions (such as the payment of fees). The Indemnified Party (at its own cost) may participate in the defense or settlement (as the case may be) of the relevant Claim(s) and Loss(es) with legal counsel elected by itself.
4.5. Limitation of Liability
(a) UNDER NO CIRCUMSTANCES WILL Gate AU OR ITS AFFILIATES, GROUP COMPANIES AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES BE LIABLE FOR ANY LOSSES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR LOSS RESULTING FROM BUSINESS INTERRUPTION. Gate AU WILL NOT BE LIABLE FOR ANY DELAY, LOSS OR DAMAGES ATTRIBUTABLE TO ANY SERVICES OR ACTIONS OF ANY THIRD PARTY.
(b) Except for express representations and warranties provided by Gate AU in this Agreement and to the maximum extent permitted by Applicable Laws, the transactions contemplated under this Agreement and the Virtual Asset Services are made and provided on an “AS IS,” “WHERE IS,” and “WITH ALL FAULTS” basis without any representation or warranty, whether express, implied, or statutory. The terms and conditions set forth herein are the result of arm’s-length negotiation between entities familiar with transactions of Virtual Assets, and said price, terms and conditions reflect the fact that Counterparty shall have the benefit of, and is not relying upon, any information provided by Gate AU or statements, representations or warranties, express or implied, made by or enforceable directly against Gate AU.
(c) Counterparty shall be fully responsible for Losses arising from or in connection with the transactions contemplated under this Agreement, unless such Losses are caused by fraud or willful misconduct of Gate AU. If Gate AU, its Affiliates or group companies, are subject to a Claim by any third party due to Counterparty’s conduct, Gate AU may recover any and all Losses incurred by it against Counterparty as a result of any such Claim.
(d) Notwithstanding the foregoing, to the fullest extent permitted by Applicable Laws, the total liability of Gate AU, its Affiliates and group companies (and their respective employees, directors, agents and representatives) arising out of or in connection with this Agreement, whether in contract or in tort or other legal theory, shall not exceed 20% of the total profits made by Gate AU through the transactions contemplated under this Agreement.
5.1. Upon registration, Gate AU will conduct a user identification verification process to the extent required to comply with all applicable anti-money laundering regulations, Sanctions and other relevant Applicable Law. Counterparty’s use of Virtual Asset Services is conditional on the successful completion of this process. Where appropriate, Gate AU may ask Counterparty to provide additional information to determine its eligibility to use Virtual Asset Services.
5.2. Counterparty warrants that it will not use Virtual Asset Services to hold or trade in funds or Virtual Assets which Counterparty knows or suspects to be in violation of anti-money laundering regulations, Sanctions or other relevant Applicable Law. In the event that Counterparty receives any funds or Virtual Assets from other users in the course of Counterparty’s use of Virtual Asset Services which Counterparty knows or suspects to contravene applicable anti-money laundering regulations, Sanctions and other relevant Applicable Law, Counterparty warrants that it will immediately notify Gate AU by email at otc_au@gate.com.
5.3. Gate AU reserves the right to freeze, block, or suspend any transaction, account, or withdrawal without notice if it reasonably suspects a breach of applicable laws (including, without limitation, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ), Sanctions, or if directed by a Regulatory Authority. Gate AU shall not be liable for any loss arising from such suspension or freezing of assets where it has acted in accordance with Applicable Law or its internal compliance policies.
6.1. Amendments. Any addition, deletion or amendment (as the case may be) of provisions to this Agreement (whether in part or in whole) must be in writing and signed by the Parties.
6.2. Waivers. Any waiver of any provision of this Agreement (whether in part or in whole) must be in writing and signed by the Parties, and any such waiver shall not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement (whether in part or in whole). For the avoidance of doubt, no failure to exercise and no delay in exercising any right, remedy or power in this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power in this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy or power provided in this Agreement or by law or at equity. This Section 6.2 may not itself be waived except agreed by both Parties in writing.
6.3. Assignment, Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns. Gate AU may assign or otherwise deal with its rights under this Agreement to its Affiliates without the prior written consent of Counterparty. Counterparty may not assign or otherwise deal with its rights and/or obligations under this Agreement without prior written consent of Gate AU, such consent to be subject to Gate AU’s sole and absolute discretion. Any assignment, transfer of rights under this Agreement or the creation or variation of any interest in such rights in violation of this Section 6.3 shall be null and void.
6.4. Severability. If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. The remainder of this Agreement has full force and effect, and the validity or enforceability of that provision in any other jurisdiction is not affected. This Section 6.4 has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
6.5. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of Hong Kong, without giving effect to the principles of conflicts of law thereof. Any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Center (“HKIAC”) in accordance with the Administered Arbitration Rules of the HKIAC (“HKIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be Hong Kong. The tribunal shall consist of one arbitrator, jointly appointed by the Parties. Failing agreement by the Counterparty within 14 days after receipt of Gate AU’s nomination of an arbitrator, the arbitrator shall be nominated by the President of HKIAC. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and the Parties expressly waive their rights to appeal any decision and award given in accordance with this section. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity.
Each Party irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in the courts referred to in this Section 6.5.
To the extent required by the Australian Consumer Law or any other applicable legislation, nothing in this clause prevents a party from exercising any non-excludable statutory right to seek a remedy or assistance from an Australian court, tribunal or regulator.
6.6. Confidentiality. The Parties hereby agree not to disclose, and to otherwise keep confidential, the Confidential Information (including each Gate AU Quote, Trade Confirmation, the existence of this Agreement, the existence or nature of any relationship between the Parties, the name of the other Party or the fact that the Parties engaged in any transactions). However, a Party may disclose Confidential Information to its directors, officers, members, employees, agents, affiliates, and professional advisers or to financial institutions providing services to a Party on a need-to-know basis in connection with any applicable anti-money laundering or compliance requirements or such other persons as required by any Applicable Law. If either Party is required by Applicable Law, or advised by legal counsel to disclose such information (the “Required Party”), the Required Party will, to the extent legally permissible, provide the other Party (the “Subject Party”) with prompt written notice of such requirement so that such Subject Party may seek an appropriate protective order or waive the compliance with this Section 6.6. The Subject Party shall promptly respond to such request in writing by either authorizing the disclosure or advising of its election to seek such a protective order. If the Subject Party fails to respond promptly, such disclosure will be deemed approved. If a Party discloses Confidential Information to a person permitted in this Agreement, such Party must use reasonable endeavors to ensure that no person to whom such Party disclosed such Confidentiality Information discloses it to any other person. The confidentiality obligations set forth in this Section 6.6 shall survive the termination of this Agreement.
6.7. Telephone Recording. Counterparty acknowledges that all telephone conversations between the Parties may be taped without an automatic tone-warning device in order to enable Gate AU to verify the instructions and for Gate AU to fulfil any regulatory requirements. Counterparty agrees to accept the recordings on relevant tapes as final and conclusive evidence of the contents of the instructions in case of dispute. Such tapes will always remain the property of Gate AU.
6.8. Entire Agreement. This Agreement and each Trade Confirmation(s) executed on or after the date hereof contain the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, written or oral, among the Parties with respect thereto. Notwithstanding anything to the contrary, in the event that Counterparty registers an account with Gate AU and accesses or uses the over-the-counter (OTC) services provided by Gate AU at its website, mobile applications, APIs, or developer tools for purposes of and in connection with any transactions similar to transactions hereunder, Counterparty shall also comply with applicable terms, policies and conditions published by Gate AU, including without limitation, the Terms of Use at User Agreement | Gate.com.
6.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be an original, but all such counterparts taken together shall constitute one and the same instrument. Transmission by telecopy, email or other form of electronic transmission of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
6.10. Notices, Consents, etc. Any notices, consents or other communications required or permitted to be sent or given hereunder by either of the Parties shall in every case be in writing and shall be deemed properly served if (i) delivered personally, (ii) sent by registered or certified mail, in all such cases with first class postage prepaid, return receipt requested, (iii) delivered by a recognized overnight courier service, or (iv) sent via email, to the Parties, at the addresses as set forth below or at such other addresses as may be furnished in writing.
If to Gate AU:
Attention: Gate AU OTC
Email: otc_au@gate.com
If to Counterparty:
Attention:
[name]
Email: [insert]
Date of service of such notice shall be: (i) the date such notice is personally delivered or sent by email; (ii) three (3) Business Days after the date of mailing if sent by certified or registered mail, or (iii) one (1) Business Day after the date of delivery to the overnight courier if sent by overnight courier.
6.11. Cumulative Remedies. The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by laws.
6.12. Rights of Third Parties. Save for each Indemnified Party, a person who is not a party to this Agreement has no right to enforce any provision of this Agreement. The Parties may amend any term of this Agreement without the consent of any person who is not a Party
6.13. Publicity. Neither Party may issue any press release or other public statement with respect to this Agreement, its terms, or any order or Trade Confirmation entered into pursuant to this Agreement, unless the content, timing and method of distribution of the press release or public statement has been approved in writing by the other Party, which approval may be withheld at the other Party’s sole discretion.
[Intentionally left blank. Signature page to follow]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
For and on behalf of
Gate Information Pty Ltd
Name:
Title: Director
For and on behalf of
[ENTITY NAME OF COUNTERPARTY]
Name:
Title: Director / Authorized Signatory
The following table is a list of communication channels deemed to be Valid Communication. Authorized Traders of the Counterparty may communicate with Gate AU via any communication channel below. Gate AU may also contact the Authorized Traders of the Counterparty via any communication channel below.
| Communication Channels of Gate Au | |
|
[email address A] [email address B] |
|
| Telegram |
[Telegram Account A] [Telegram Account B] |
| Phone (Authorized Number) |
[Authorized Number A] [Authorized Number B] |
| Communication Channels of Counterparty | |
|
[email address A] [email address B] |
|
| Telegram |
[Telegram Account A] [Telegram Account B] |
| Phone (Authorized Number) |
[Authorized Number A] [Authorized Number B] |
As detailed in Section 2.5 of this Agreement, the individuals set out in the table below are Authorized Traders, which may trade on Counterparty’s behalf. To designate any additional individuals, Counterparty must do so by sending an email to otc_au@gate.com . Such message must be sent from the email address set out below (or, if no email address is set out below, from the email address specified for receipt of notice in Section 6.10 to this Agreement).
Counterparty Email Address (for adding Authorized Traders):
| Authorized Traders | |
| Name | Title |
