Caleb and Brown Pty Ltd (Company Registration ABN: 66 619 023 559),
a company incorporated in Australia and having its registered office 2/365 Little BourkeSt, Vic, 3000. (the "Company"); and
The Client (the "Client")
(The Company and the Client are hereinafter collectively referred to as the "Parties"and each, a "Party".)
This Agreement (the “Agreement”) contains the principal terms proposed by the Company, acting as the agent of the Client in the sale and purchase transactions for Cryptocurrency, including but not limited to the exchange of digital assets, upon the terms and subject to the conditions set out in this Agreement.
By opening an account with the Company, the Client agrees that all transactions undertaken with the Company shall be bound by and subject to the terms of this Agreement which are publicly available on the website of the Company.
NOW IT IS HEREBY AGREED as follows:
In this Agreement, unless the context otherwise requires:
"affiliates"in relation to any person, means any other person that directly or indirectly through one or more intermediaries controls or is controlled by, or is under common control with, that first-mentioned person and where such person is an individual, the expression "affiliate" shall include the spouse, children, siblings and parents of such individual;
"Confidential Information " has the meaning ascribed to it in Clause 5.1; “Cryptocurrency” shall refer to Bitcoin and other digital assets;
“Cryptocurrency address” shall refer to an identifier of alphanumeric characters that represents a destination for Cryptocurrency payments; and
"encumbrances" means any claim, charge, mortgage, lien, option, equity, power of sale, hypothecation, retention of title, right of pre-emption, right of first refusal or other third party right or security interest of any kind or an agreement, arrangement or obligation to create any of the foregoing.
In this Agreement, unless the context otherwise requires
(a) references to time shall be Melbourne, Australia time;
(b) references to a"person" include any company, limited liability partnership, partnership, business trust or unincorporated association (whether or not having separate legal personality) and references to a "company" include any company, corporation or other body corporate, wherever and however incorporated or established;
(c) clause headings are for convenience of reference only and shall not affect the interpretation of this Agreement;
(d) references to a statutory provision includes any subordinate legislation made from time to time under that provision;
(e) references to a statute or statutory provision include that statute or provision as from time to time modified or re-enacted or consolidated so far as such modification or re-enactment or consolidation applies or is capable of applying to any transactions entered into in accordance with this Agreement and (so far as liability thereunder may exist or can arise)shall include also any past statutory provision (as from time to time modified or re-enacted or consolidated) which such provision has directly or indirectly replaced provided that nothing in this Clause shall operate to increase the liability of any Party beyond that which would have existed had this Clause been omitted;
(f) references to this Agreement include any Recitals and Schedules (if any) to it and references to Clauses and Schedules are to Clauses of and Schedules to this Agreement; and
(g) unless the context otherwise requires or permits, references to the singular number shall include references to the plural number and vice versa and words denoting any gender shall include all genders.
1.1 The Company shall, in accordance with the terms and conditions of this Agreement, at an agreed upon time and date, execute the exchange of Cryptocurrency, and the Client shall provide the funds or Cryptocurrency (as the case may be) being exchanged to the Company, free from all encumbrances and with all rights, benefits and entitlements attaching there to.
1.2 Save for Clause 1.5, upon the Client agreeing to the exchange terms and price (including the Company’s fees), the trade will be executed and deemed final.
1.3.1 In order to complete a purchase of Cryptocurrency via the Company, the Client must have a verified account with the Company and a Cryptocurrency address registered with the Company and must make payment from an account in the Client’s own name or company.
1.3.2 By submitting a Purchase Order to a broker at the Company, the Client authorizes the Company to proceed with the relevant transaction based on the quantity and price indicated in the Purchase Order and agrees to pay the relevant fees due to the Company.
1.3.3 Once the Client has made all necessary payments, the Company shall transfer the Cryptocurrency to the Client’s Cryptocurrency address registered with the Company. This transaction shall be indicated on the Cryptocurrency blockchain and shall be taken as evidence of transfer of the Cryptocurrency by the Company and receipt of it by the Client.
1.4.1 In order to sell Cryptocurrency via the Company, the Client must have a verified account with the Company and a bank account registered in the Client’s account with the Company.
1.4.2 By submitting a Sale Order to a broker at the Company, the Client authorizes the Company to proceed with the relevant transaction based on the quantity and price indicated in the Sale Order and agrees to pay the relevant fees due to the Company.
1.4.3 The Client shall transfer the Cryptocurrency to the Cryptocurrency address specified by the Company before submitting the Sale Order, failing which the Company has the right to adjust the price in the Sale Order.
1.4.4 The Client will receive payment from the Sale Order within 5 business days via a bank transfer or direct to the Client’s account with the Company upon which the Client will receive a confirmation from the Company informing them of the completion of the transaction.
1.5.1 In the following situations, the Company reserves the right to cancel, reverse or refuse to process any Sale or Purchase Order regardless of whether funds have been transferred by the Client:
(a) the Client fails to clear any anti money laundering checks or if the Company has 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;
(b) the Company is unable to proceed with the transaction due to a court order, legal obligation or order by the Government of Australia; and
(c) any other reason in the Company’s reasonable discretion, including but not limited to the Company suspecting an error in the transaction.
1.5.2 For avoidance of doubt, should the Sale or Purchase Order be cancelled, reversed or refused by the Company in accordance with this clause, the Company is not obliged to offer the Client the same price or terms in a new transaction.
2.1 The consideration for the exchange of the Cryptocurrency by the Company and the Client shall be at the quoted price received by the Company at the time of the transaction.
3.1 Unless otherwise stated, the payments to be made by one Party to the other Party under this Agreement shall be made by way of bank transfer from the Client's bank account to the Company's bank account or vice versa, depending on the transaction.
4.1 The Company Warranties
4.1.1 The Company has the capacity to enter into, perform and deliver this Agreement and will take all necessary action to authorize its entry into, performance and delivery of this Agreement, including but not limited to anti-money laundering and compliance checks.
4.1.2 The Company warrants that the Cryptocurrency it is providing is legally valid and the transaction complies with all applicable laws and regulations.
4.2.1 The Client has the capacity to enter into, perform and deliver this Agreement including but not limited to the following:
(a) if the Client is an individual, he/she is of an age of majority to enter into this Agreement, meets all eligibility requirements, and is fully able and legally competent to agree on the terms, conditions, obligations, affirmations, representations and warranties set forth herein; and
(b) if the Client is a company, it is duly incorporated and existing under the laws of Australia or the relevant country in which it is incorporated.
4.2.2 The Client warrants when it enters into a Sale Order, that the Cryptocurrency it is providing is legally valid and complies with all applicable laws and regulations.
4.2.3 The Client warrants that the Cryptocurrency address to which the Cryptocurrency will be delivered to or received from is a valid address that the Client controls. The Client agrees to indemnify the Company against any losses incurred by either the Company or the Client due to the wrong or unauthorized Cryptocurrency address being provided by the Client.
4.2.4 The Client acknowledges that:
(a) they are aware that the Company does not provide any recommendations or purport to offer any investment advice of any kind in relation to the transaction; and
(b) they are aware of the speculative and volatile nature of investing in Cryptocurrency and that they are capable of gauging the merits and risks of the transaction on their own.
5.1 Confidential Information to be Kept Confidential
5.1.1 The Parties shall use all reasonable endeavours to keep confidential and to ensure that their respective affiliates and their respective officers, employees, agents, professionals and other advisers keep confidential any information received or obtained as a result of entering into this Agreement (or any agreement entered into pursuant to this Agreement) which relates to:
(a) the existence of and the provisions of this Agreement and of any agreement entered into pursuant to this Agreement; and
(b) the negotiations relating to this Agreement (and any such other agreements). Hereinafter referred to as “Confidential Information”.
5.2.1 No Party may use for its own business purposes or disclose to any third party any Confidential Information without the consent of the other Party. This Clause does not apply to:
(a) information which is or becomes publicly available (otherwise than as a result of a breach of this Clause)
(b) information which is independently developed by the relevant Party or acquired from a third party, to the extent that it is acquired with the right to disclose it;
(c) information which was lawfully in the possession of the relevant Party free of any restriction on disclosure:
(d) information which following disclosure under this Clause becomes available to the relevant Party from a source which is not bound by any obligation of confidentiality in relation to such information;
(e) the disclosure by a Party of Confidential Information to its directors or employees who need to know that Confidential Information for purposes relating to this Agreement but those directors and employees shall not use that Confidential Information for any other purpose;
(f) the disclosure of information to the extent required to be disclosed by law or any court of competent jurisdiction, any governmental official or regulatory authority or any binding judgment, order or requirement of any other competent authority;
(g) the disclosure of information to any tax authority to the extent reasonably required for the purposes of the tax affairs of the Party concerned or any of its affiliates; and
(h) the disclosure to a Party's professional advisers of information reasonably required to be disclosed for purposes relating to this Agreement.
5.2.2 Each Party shall inform any officer, employee or agent or any professional or other adviser advising it in relation to matters relating to this Agreement, or to whom it provides Confidential Information, that such information is confidential and shall instruct them:
(a) to keep it confidential; and
(b) not to disclose it to any third party (other than those persons to whom it has already been or may be disclosed in accordance with the terms of this Clause).
5.2.3 The disclosing Party shall remain responsible for any breach of this Clause by the person to whom that Confidential Information is disclosed.
5.3.1 The provisions of this Clause shall survive the termination of this Agreement for whatever cause.
6.1 This Agreement contains the whole agreement between the Parties relating to the subject matter of this Agreement at the date hereof to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the Parties in relation to the matters dealt with in this Agreement. In this Clause,"this Agreement" includes all documents entered into pursuant to this Agreement.
6.2.1 Any liability to any Party under this Agreement may in whole or in part be released, compounded or compromised, or time or indulgence given, by such Party in its absolute discretion with out in any way prejudicing or affecting its rights against the other Party in respect of the same.
6.3.1 The failure by any Party to exercise any right (including the right of rescission) or to require performance by the other Party or to claim a breach of any term of this Agreement shall not be deemed to be a waiver of such or any other rights or remedies available to it.
6.4.1 This Agreement shall be binding on and shall ensure for the benefit of each Party's successors and assigns. Any reference in this Agreement to any of the Parties shall be construed accordingly.
6.4.2 No Party may assign or transfer all or part of its rights or obligations under this Agreement without the prior written consent of the other Party.
6.5.1 Save as expressly provided in this Agreement, no provision of this Agreement is enforceable by any person who is not a Party to this Agreement.
6.6.1 Any time, date or period mentioned in any provision of this Agreement may be extended by mutual agreement between the Parties in accordance with this Agreement or by agreement in writing but as regards any time, date or period originally fixed or any time, date or period so extended as afore said time shall be of the essence.
6.7.1 Each Party shall bear and be responsible for its professional and other costs and expenses incurred, in relation to the performance of its obligations under this Agreement, including all professional and other costs and expenses incurred.
6.8.1 If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties.
6.9.1 Should the Company fail or omit to carry out its obligations under this Agreement due to reasons beyond the control of the Company including but not limited to natural disaster, terrorism, war, government restrictions including restrictions on Cryptocurrency, infectious diseases, sabotage, congestion of the Cryptocurrency blockchain or any such reason that may prevent or delay the Company from performing such obligation, such failure or omission shall not be deemed a breach of this Agreement by the Company.
7.1 This Agreement shall be governed by, and construed in accordance with, the laws of Australia.
7.2 Each Party agrees that any dispute arising out of or in connection with this Agreement or any document or transaction in connection with this Agreement (including any question regarding its existence, validity or termination, or any dispute or claim relating to any non-contractual obligations arising out of or in connection with this Agreement) shall be referred to and finally resolved by arbitration in Australia to the exclusion of the ordinary courts. The place of arbitration shall be in Australia and the language of the arbitration shall be English. The arbitration tribunal shall consist of one arbitrator to be appointed by the Parties. The arbitral award made and granted by the arbitrators shall be final, binding and incontestable.