OTC TRADING COUNTERPARTY TERMS
Introduction
These Terms (“Term”) are between our service users (Counterparty, you, your) and flownet.xyz (FlowNet, us, we, our). Each of the Counterparty and FlowNet shall be a Party and together shall be referred to as the Parties.
The Parties desire to enter into periodic transactions for the purchase and sale of digital assets via electronic trading arrangements (hereinafter referred to as “Activities”) in accordance with the terms and conditions as set forth herein.
The Term governs the provision of the Activities by FlowNet to the Counterparty and will govern all orders submitted (the Orders) and all transactions entered into (the Transactions) pursuant to the Counterparty’s access to and use of the Activities. Our Term with you consists of this Term and any other documentation that we may reasonably require you to enter into with us in order to facilitate our provision of the Activities.
By using this service (“Services”), you confirm you have read, understood, and accepted these Terms and the relevant transaction and operation rules in connection with these Services, and that you agree to be legally bound by the terms and conditions thereof. We reserves the right to change or modify the Terms at any time, at our sole discretion, and will provide notice of such changes by posting the revised Terms on the Site and changing the “Last Updated” date therein. Your continued use of the Services after having been notified of these changes constitute your acceptance of these Terms.
FlowNet will work on a reasonable effort basis to facilitate your Transactions by enabling direct purchase and sale of digital assets with you and then sourcing the liquidity with its partnered counterparty. FlowNet will not execute for its own account or benefit or that of an FlowNet affiliate a Transaction while FlowNet is in possession of specific confidential information regarding the Transaction, or in a manner that is designed or intended to disadvantage you. You acknowledge and agree that FlowNet is not acting as your broker, intermediary, agent, or advisor or in any fiduciary capacity in any transactions. You understand that when FlowNet is acting as the principal of Transactions with you, such principal trading by FlowNet will be for the sole purpose of providing liquidity and satisfying your trading goals.
These Services may not be available to Users in certain jurisdictions.
Definitions
Confidential Information means all data, personal information, product and service related information, investment holdings information, financial information, research and development information, pricing, product plans, and marketing plans, and any other information that is identified by Disclosing Party as confidential or that by its nature should reasonably be recognizable by a prudent person as confidential information, whether disclosed orally, visually, in writing, or by way of any media.
Data Protection Laws means all laws and regulations applicable to the processing of Personal Data under the Term.
Default Event means any one or more of the following events in respect of a Counterparty:
- it is the subject of or is found guilty or at fault in any criminal proceedings or investigation carried out by a governmental or regulatory authority in any jurisdiction;
- it fails to pay any sum due and payable to FlowNet in accordance with the relevant time period for payment as prescribed within this Term;
- any representation or warranty made by it is or becomes untrue;
- an Insolvency Event occurs in relation to it; or
- any other circumstance occur or exist in respect of, in relation to or otherwise affecting it as a result of which FlowNet reasonably believes that it is necessary or desirable to take action under Clause 12.2.
Force Majeure Event means acts of God, fire, flood, drought, earthquake or other natural disaster, epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of Sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a regulatory or governmental authority, including without limitation imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); non-performance by suppliers, subcontractors, blockchains, networks, exchanges or custodial services (other than by companies in the same group as the party seeking to rely on this clause); and interruption or failure of utility service including hacks.
Fork means a change in the consensus rules of the underlying blockchain or network for an Eligible Cryptoasset, including, but not limited to, a hard fork, soft fork and 51% attack.
Insolvency Event means in relation to the Counterparty:
- its making a general assignment for the benefit of, or entering into a reorganisation, arrangement, or composition with creditors; or
- its stating in writing that it is unable to pay its debts as they become due; or
- its seeking, consenting to or acquiescing in the appointment of any trustee, administrator, receiver or liquidator or analogous officer of it or any material part of its property; or
- the presentation or filing of a petition in respect of it in any court or before any agency alleging, or for, the bankruptcy, winding-up or insolvency of such Counterparty (or any analogous proceeding) or seeking any reorganisation, arrangement, composition, re-adjustment, administration, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such petition not having been stayed or dismissed within 30 days of its filing (except in the case of a petition for winding-up or any analogous proceeding in respect of which no such 30 day period shall apply); or
- the appointment of a receiver, administrator, liquidator or trustee or analogous officer of such Counterparty over all or any material part of its property; or
- the convening of any meeting of its creditors for the purpose of considering a general assignment for the benefit of creditors pursuant to any laws or any other voluntary arrangement for the rescheduling or compromise of its indebtedness under applicable law.
Intellectual Property Rights means the worldwide intangible rights or interests, whether or not filed, perfected, registered or recorded and whether now or later existing, filed, issued or acquired, including, without limitation: (a) rights associated with works of authorship, including but not limited to, copyrights, moral rights, and mask-works; (b) trademarks, trade names, service marks and service names, corporate names, business names, brand names, trade dress, logos, mottos, Internet domain names and certification marks, and all goodwill associated with any of the foregoing items; (c) trade secret rights and the rights to preserve confidentiality of information; (d) patents, designs, algorithms and other industrial property rights; (e) database rights; (f) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated) whether or not analogous to any of the foregoing rights (including, without limitation, rights of publicity).
Sanctioned Person means the target of any Sanctions or located, organised or resident in a country or territory with which dealings are broadly restricted or prohibited by any Sanctions.
Sanctions means any economic, financial or trade sanctions or embargoes, export controls or other restrictive measures imposed by the United States of America (including those administered by the United States Department of the Treasury's Office of Foreign Assets Control), the European Union, any member state of the European Union, the United Kingdom (including those administered by HM Treasury) or the United Nations.
Settlement Deadline means a time agreed between the Parties from time to time.
Transaction Confirmation means an electronic confirmation provided by FlowNet to the Counterparty documenting the terms of a Transaction.
1 Activities
1.1 The Counterparty appoints FlowNet to provide the Activities to the Counterparty and FlowNet hereby accepts such appointment from the Effective Date subject at all times to the provisions of this Term.
1.2 The Counterparty may access and use the Activities manually through e-mail or accepted communication methods by FlowNet (a Manual Order). FlowNet does not produce, host or own the any e-mail or communication methods utilised in relation to Manual Orders and provides no representations as to its accuracy or fitness for purpose, nor does FlowNet accept any responsibility for any Losses incurred by the Counterparty arising out of or in connection with the Counterparty’s use of such chat functionality.
1.3 Access to the Activities is provided to the Counterparty at FlowNet’s sole discretion. FlowNet may add, modify or discontinue any feature, functionality or any other tool within the Activities at its own discretion and without further notice to the Counterparty. Where a material adverse change is made to the core functionality of the Activities, FlowNet will provide the Counterparty with prior notice of such change in accordance with the provisions under Clause 13.
1.4 The Activities are made available on an as is basis. The Counterparty acknowledges and agrees that FlowNet provides no warranty, whether express or implied, as to the operations of the services, Software, their uptime or availability or as to any results to be attained by the Counterparty from the access to and use of the Activities. The Activities do not include any set-up, maintenance, oversight, technical advice, support or testing relating to the services or Software.
1.5 FlowNet will exercise all due skill, care and diligence in the performance of the Activities under this Term. FlowNet shall owe no other duties to the Counterparty other than those duties to perform the Activities in accordance with this Clause 1.5. FlowNet’s duties and obligations under this Term shall be solely to the Counterparty and FlowNet accepts no duties, obligations or responsibilities to any other party, regardless of whether FlowNet is made aware of any such third-parties. FlowNet shall not be subject to, nor required to comply with, any other Term to which the Counterparty is a party. FlowNet shall be responsible for the performance of the Activities as expressly set forth in this Term and shall have no implied duties or obligations whatsoever.
1.6 The Activities are provided in relation to the Eligible Cryptoassets only. The Counterparty acknowledges and agrees that FlowNet shall determine the Eligible Cryptoassets in its sole discretion and that it may add or remove Eligible Cryptoassets at any time and without prior notice.
1.7 FlowNet shall enter Transactions made under this Term as principal. The Counterparty agrees that it will enter into Transactions under the Activities as principal and not as agent on behalf of any other party. Unless FlowNet has agreed otherwise, the Counterparty is solely responsible for performing any obligations under this Term.
1.8 The Activities will be provided on a non-advised basis, meaning that FlowNet will not provide the Counterparty with any advice as to the merits of any Orders or Transactions. The Counterparty acknowledges and agrees that it is solely responsible for any decisions taken in respect of any Orders or Transactions made via the Activities. FlowNet will not provide the Counterparty with any investment, legal, tax or other form of advice, nor can the Counterparty request any such advice from FlowNet.
1.9 The Counterparty acknowledges and agrees that it bears sole responsibility for any reporting of Orders and Transactions as may be required under applicable law and regulation and that FlowNet will not provide any infrastructure, support or assistance with respect to the reporting of Orders or Transactions as part of the Activities.
1.10 The Counterparty shall bear sole responsibility for maintaining its own wallets and custody solutions in relation to the Eligible Cryptoassets and FlowNet shall not provide, recommend or assist with such arrangements as part of the Activities.
1.11 Nothing in this Term will preclude FlowNet or its affiliates from entering into similar Terms with others or otherwise providing the Activities to other persons, including competitors of the Counterparty.
1.12 FlowNet may use third-parties, including affiliates, to support it in the provision of the Activities and nothing in this Term shall be deemed to prohibit the use of such third-parties for such purposes.
1.13 In performing the Activities, FlowNet offers no representation as to or guarantee of liquidity in any Eligible Cryptoasset and the Counterparty acknowledges and agrees that FlowNet has no ability to control liquidity and that it takes no responsibility for any Losses experienced by the Counterparty which are caused by or contributed to by illiquidity in any Eligible Cryptoasset.
2 Authorised Users
2.1 The Counterparty must ensure that it permits only its Authorised Users to access and use the Activities. The Authorised Users must be employees of the Counterparty. The Counterparty shall maintain a record of all of its current and historic Authorised Users and shall maintain such records for five (5) years after the date of termination of this Term. FlowNet reserves the right to request information from time to time on the identity of all such Authorised Users and their experience and suitability to access the Activities.
2.2 The Counterparty shall ensure that its Authorised Users are adequately trained and have the appropriate skills, experience and knowledge to access and use the Activities. The Counterparty shall bear all responsibility for training its Authorised Users to ensure that it can comply with this Clause 2.2.
2.3 The Counterparty warrants and represents that it has implemented, and shall maintain, appropriate policies and procedures to ensure that it can monitor and supervise its Authorised Users in the context of their access to and use of the Activities.
2.4 The Counterparty acknowledges and agrees that it will be bound by and solely responsible for any actions or omissions of its Authorised Users in the context of their respective access to and use of the Activities, including with their compliance with this Term.
2.5 The Counterparty is solely responsible for granting, maintaining and terminating access to and use of the Activities by its Authorised Users.
2.6 The Counterparty shall use reasonable endeavours to prevent any unauthorised access to and use of the Activities and, in the event that it suspects any such unauthorised access, promptly notify FlowNet.
2.7 The Counterparty shall be solely responsible for maintaining and keeping secure all security credentials or passwords required to access the Activities. If the Counterparty becomes aware that any of its Authorised Users has lost or misplaced their security credentials, or that the security credentials have become or may become compromised, it shall inform FlowNet immediately and FlowNet reserves the right to suspend the Counterparty’s access to and use of the Activities until such time as changes are made to its security credentials. Until such time as the Counterparty notifies FlowNet that the security credentials have been lost or misplaced, FlowNet shall be entitled to rely on any instructions made by an Authorised User and the Counterparty shall remain solely liable for any Orders or Transactions entered into as a result.
3 Prices, Orders and Transactions
3.1 The Counterparty acknowledges and agrees that FlowNet shall determine Prices in its sole discretion. Prices are proprietary in nature and so the Prices made available by FlowNet may differ to other prices provided in the Eligible Cryptoassets by other providers.
3.2 Prices are subject to constant change and whilst FlowNet endeavours to provide Prices that are up to date, circumstances may arise where Prices provided to a Counterparty are invalid by the time that an Order is received by FlowNet in relation to that Price. This may include, but is not limited to, instances where the quality or speed of the Counterparty’s connectivity causes delay or market volatility is causing Prices to change rapidly. FlowNet shall determine how long Prices remain valid in its sole discretion. An Order submitted in relation to a Price that is no longer valid will be rejected.
3.3 The Counterparty acknowledges that the Prices are provided solely for the Counterparty’s use of the Activities and the Counterparty may not communicate or otherwise use the Prices for any other reason.
3.4 The Counterparty acknowledges and agrees that each Transaction will be entered into as follows:
(a) FlowNet provides Prices, either following a Price Request by the Counterparty (in the case of the Software or a Manual Order) or via Prices that are generally available to be accessed by the Counterparty but are not made specifically to the Counterparty (in the case of the Software or the User Interface);
(b) the Counterparty sends an Order to FlowNet in relation to a Price; and
(c) if FlowNet accepts that Order then it is deemed to be executed and a Transaction will arise.
3.5 Notwithstanding whether an Order is made via the Software, FlowNet may request that such Order or any part of such Order be submitted and agreed via a Manual Order. A Manual Order shall remain subject to all other provisions of this Term.
3.6 Unless otherwise agreed, once submitted to FlowNet, an Order cannot be withdrawn, cancelled or amended by the Counterparty. FlowNet provides no guarantee that any Order can be filled in its entirety as this depends on factors outside of FlowNet’s control. FlowNet may add or remove types of Orders at its sole discretion and any such Order types will be automatically subject to the terms of this Term from the date that such Order types become available.
3.7 FlowNet shall have sole discretion as to whether it wishes to respond to a Price Request. The provision of a Price by FlowNet, whether following a Price Request or otherwise, does not constitute an offer to the Counterparty to enter into a Transaction at that Price, nor does it obligate FlowNet to accept any subsequent Order made by a Counterparty. The submission of an Order by a Counterparty in response to the provision of a Price by FlowNet will constitute an offer by the Counterparty to enter into a Transaction at the relevant Price and FlowNet shall determine in its sole discretion and taking into account any Risk Controls whether it wishes to accept that offer.
3.8 The acceptance and execution of an Order may be evidenced by a Transaction Confirmation provided by FlowNet to the Counterparty that shall contain the terms of the Transaction as agreed between FlowNet and the Counterparty where the provision of such Transaction Confirmation is agreed between the Parties. If the Parties have not agreed to provide Transaction Confirmations for Manual Orders, then Transaction Confirmations will not be provided. Where Transaction Confirmations are provided, the Transaction Confirmation shall serve as the definitive evidence of the terms of a Transaction.
3.9 The Counterparty acknowledges and agrees that a Transaction represents a binding contractual Term between FlowNet and the Counterparty which cannot be cancelled, amended or unwound by the Counterparty, regardless of whether the Transaction is entered into as a result of any inaccuracy or error by the Counterparty, including in relation to the terms of the Transaction.
3.10 The Counterparty acknowledges and agrees that it bears sole responsibility and risk in relation to Transactions. FlowNet shall have no responsibility for any errors that occur in relation to Transactions which arise as a result of the actions or omissions of the Counterparty or any other party.
3.11 If FlowNet becomes aware that any of the matters in this Clause 3.11 has occurred in relation to a Transaction, FlowNet reserves the right to treat that Transaction as void from the outset and take steps to unwind or reverse that Transaction. The matters include, but are not limited to, the following:
(a) the Price is not obtained in the manner required under Clauses 3.4 as appropriate;
(b) the Price is expressed as being indicative or conditional;
(c) the Price contains a material error;
(d) a Default Event has occurred in respect of the Counterparty;
(e) a Force Majeure Event has occurred; or
(f) the Counterparty uses Software that has not been approved by FlowNet in advance.
3.12 Where FlowNet decides to take any action in relation to a Transaction under Clause 3.11, it will notify the Counterparty in accordance with Clause 13. Without prejudice to Clause 10, the Counterparty shall indemnify and hold FlowNet, its affiliates and subsidiaries harmless against all Losses, and all other reasonable fees, charges, professional costs and expenses suffered or incurred by FlowNet arising out of or in connection with its taking action under Clause 3.11.
4 Netting and Settlement
4.1 In relation to a Transaction that results in a purchase of Eligible Cryptoassets by the Counterparty, the following must occur prior to the Settlement Deadline:
(a) the Counterparty shall pay to FlowNet the amount specified in the Transaction Confirmation as due and payable to FlowNet (the Settlement Payment); and
(b) on receipt of the amount under (a), FlowNet shall deliver the Eligible Cryptoassets to the Counterparty in the timeframes as agreed between the Parties.
4.2 In relation to a Transaction that results in a sale of Eligible Cryptoassets by the Counterparty, the following must occur prior to the Settlement Deadline:
(a) the Counterparty shall deliver the Eligible Cryptoassets to FlowNet in the amount as agreed between the Parties; and
(b) on receipt of the Eligible Cryptoassets under (a), FlowNet shall pay the Settlement Payment to the Counterparty in the timeframes as agreed between the Parties.
4.3 The settlement of a Transaction under either Clause 4.1 or 4.2 shall occur on a net basis in accordance with Clause 4.7.
4.4 The Settlement Payment may be made to FlowNet in either a supported fiat currency or in the form of Eligible Cryptoassets. A list of supported fiat currencies is available from FlowNet on request. Where a Settlement Payment is to be made by the Counterparty in fiat currency, it shall be paid by the Counterparty to the nominated bank account of FlowNet as notified by FlowNet to the Counterparty. Where a Settlement Payment is to be made by the Counterparty in Eligible Cryptoassets, the Eligible Cryptoassets shall be delivered to the FlowNet Wallet Address as communicated by FlowNet to the Counterparty.
4.5 The Counterparty shall deliver the Eligible Cryptoassets to the FlowNet Wallet Address as communicated by FlowNet to the Counterparty. FlowNet shall deliver the Eligible Cryptoassets to the Counterparty Wallet Address as communicated to FlowNet by the Counterparty. The Counterparty bears sole responsibility for ensuring that the Counterparty Wallet Address held by FlowNet is accurate and up to date.
4.6 The Counterparty acknowledges and agrees that settlement of a Transaction will be an on-chain transaction on the blockchain supporting the Eligible Cryptoasset in question and that FlowNet has no ability to control or influence the consensus mechanisms or other arrangements on that underlying blockchain which may be required to validate and sign a transaction and facilitate settlement of the Transaction.
4.7 If at any time in relation to the Activities FlowNet owes the Counterparty and the Counterparty owes FlowNet the same amount of money in the same currency or the same amount of a particular Eligible Cryptoasset, then each of FlowNet’s and the Counterparty’s obligation to pay such monies or such Eligible Cryptoassets as the case may be to the other will be automatically satisfied and discharged. In the event that FlowNet and the Counterparty owe one another different amounts of money in the same currency or different amounts of a particular Eligible Cryptoasset, then whichever of FlowNet or the Counterparty owes more may pay the excess to the other and each of FlowNet’s and the Counterparty’s obligations to pay such monies or Eligible Cryptoasset as the case may be to the other will be satisfied and discharged.
4.8 FlowNet reserves the right to require the Counterparty to transfer Eligible Cryptoassets or a supported fiat currency to FlowNet in advance of entering into a Transaction to address the present, future, actual, contingent or prospective obligations of a Counterparty (such transferred Eligible Cryptoassets or supported fiat currency “Prefunded Assets”). The Counterparty acknowledges and agrees that upon the transfer, all right, title and interest in and to the Prefunded Assets will pass to FlowNet. The Prefunded Assets held by FlowNet will be an unsecured amount owed by FlowNet to the Counterparty. This means that:
(A) the Prefunded Assets will not be held by FlowNet for or on behalf of the Counterparty (whether in a segregated account or otherwise);
(B) FlowNet can deal with the Prefunded Assets as its own property; and
(C) in the event of FlowNet’s insolvency, the Counterparty will only have an unsecured claim against FlowNet for a cash repayment obligation of an amount equivalent to the value of the Prefunded Assets, and such claim will be subject to the exercise by FlowNet of any set-off rights FlowNet may have under this Term or under applicable laws and regulations.
4.9 The Counterparty has the right to demand the return of Prefunded Assets by giving five (5) business days’ notice in writing and FlowNet will transfer ownership of some or all of those Prefunded Assets back to the Counterparty, if, in FlowNet’s reasonable opinion, it considers that the aggregate value of the Prefunded Assets exceeds the amount necessary to cover the Counterparty’s obligations to FlowNet, subject to the exercise by FlowNet of any set-off rights it may have under this Term or under applicable law and regulation.
5 Risk Controls and Limits
5.1 The Counterparty acknowledges and agrees that any Orders or Transactions submitted under or created by the use of the Activities may be subject to risk limits, risk tolerances and credit limits imposed by FlowNet from time to time (the Risk Controls). The Risk Controls may be general or specific to the Counterparty, may apply to all Eligible Cryptoassets or only certain Eligible Cryptoassets, and at all times are imposed, amended, maintained or removed at the sole discretion of FlowNet without prior notice to the Counterparty.
5.2 FlowNet may reject or cancel any Order that, in its sole discretion, breaches or may breach a Risk Control. FlowNet shall have no liability to the Counterparty for any losses or damages incurred by the Counterparty in connection with any Orders which are rejected or cancelled by FlowNet in circumstances where such Orders breach or are reasonably likely to breach a Risk Control.
5.3 The Counterparty agrees that it will cooperate with FlowNet and supply, in a form agreed between FlowNet and the Counterparty, all information and data that FlowNet considers reasonably necessary to set appropriate Risk Controls with respect to the provision of the Activities to the Counterparty.
6 Counterparty’s Obligations
6.1 As a condition of receiving the Activities, the Counterparty shall:
(a) exercise all due care, skill and diligence in its use of the Activities;
(b) ensure that it complies with all applicable law and regulation in connection with its access to and use of the Activities, including, but not limited to, circumstances where it uses the Activities to provide services or activities to its own counterparties, clients or customers (the Underlying Clients);
(c) enter into and continuously comply with its obligations under all documentation required by FlowNet in connection with the provision of the Activities;
(d) ensure that its Authorised Users comply with this Term at all times;
(e) ensure that it does not grant access to the Activities to any persons other than its Authorised Users;
(f) monitor and supervise the submission of Orders and Transactions via the Activities;
(g) take all reasonable steps to ensure that any automated trading arrangements, algorithms or other software utilised by the Counterparty in connection with its access to and use of the Activities are regularly tested in accordance with prudent business practices and do not interfere with fair and orderly markets;
(h) provide all such documentation or information as may be reasonably required by FlowNet to ensure its compliance with applicable law and regulation, including, but not limited to, information to verify the identity of the Counterparty;
(i) implement and maintain appropriate arrangements for accessing and using the Activities at its own cost;
(j) maintain appropriate records of all Orders and Transactions throughout the duration of this Term and for up to five (5) years after the termination of this Term and the Counterparty shall provide FlowNet with access to such records on reasonable prior notice, including via physical access to its premises, as it may reasonably require to ensure its compliance with applicable law and regulation;
(k) inform FlowNet immediately if it or any Underlying Client becomes:
(i) subject to any investigation, proceedings or actions undertaken by any regulatory or governmental authority;
(ii) a Sanctioned Person or is or becomes located, organised or resident in, or begins to conduct business in or with, any country or territory with which dealings are broadly restricted or prohibited by Sanctions; or
(iii) subject to, or reasonably likely to become subject to, a Default Event.
(l) maintain adequate security and control arrangements in relation to any security credentials that the Counterparty or any of its Authorised Users uses to access and use the Activities;
(m) ensure that any software or technological arrangements that it utilises to access and use the Activities are frequently tested and are free of all malware, computer viruses, worms or other code which may have a negative impact on the services or Software; and
(n) ensure that it does not use the Activities in conjunction with third-party applications which have not been approved by FlowNet in advance.
7 Fees and Taxes
7.1 The Counterparty agrees to pay all fees, expenses, charges and obligations related to its receipt of the Activities, together with any other amounts payable to FlowNet under the Term.
7.2 In the event that any Blockchain Fees apply in connection with Transactions, the relevant sender of the transaction triggering the Blockchain Fees shall bear sole responsibility for paying such Blockchain Fees. The sender for the purposes of this Clause 7.2 shall be the Party that utilises their private key to sign the transaction, thereby initiating it. Where the Blockchain Fees are to be deducted from the value of the transaction by the relevant operator of or another actor within the underlying blockchain, the sender shall increase the value of the transaction by the amount of the Blockchain Fees to ensure that the full value of the transaction that is due and payable to the receiver is in fact received by the receiver.
7.3 It is the Counterparty’s sole responsibility to determine whether and to what extent any taxes and reporting obligations may apply to it as a result of its use of the Activities. FlowNet shall have no responsibility for facilitating or otherwise making any payments of tax for and on behalf of the Counterparty. FlowNet provides no warranty or representation as to the Counterparty’s tax position or the tax treatment of any Transactions.
7.4 The Counterparty agrees to indemnify and hold FlowNet harmless for any withholding tax or other levies, fees or penalties directly linked to Transactions entered into by the Counterparty under the Activities which FlowNet is required to pay. Any such amounts shall be invoiced to the Counterparty by FlowNet in accordance with Clause 7.
7.5 Upon execution of this Term, as well as upon FlowNet’s request, the Counterparty will promptly provide FlowNet with all forms, certifications, documentation, representations and warranties and any other information as FlowNet may request in relation to tax matters (the Counterparty Tax Documentation). The Counterparty warrants that, when given, such Counterparty Tax Documentation is true, complete and correct. If any such Counterparty Tax Documentation becomes inaccurate, incorrect or obsolete or requires supplemental information, the Counterparty will notify FlowNet immediately and promptly provide updated Counterparty Tax Documentation. The Counterparty understands that FlowNet may disclose any information with respect to the Counterparty and Transactions entered into under the Activities where required or requested by any applicable tax authority or other governmental entity, without informing the Counterparty of such disclosure.
7.6 Without limitation to Clause 10, the Counterparty shall indemnify and hold FlowNet harmless from and against any and all liabilities, penalties, interest or additions to tax with respect to, or resulting from, Transactions and any delay in, or failure by, the Counterparty to pay, withhold or report taxes relating to or resulting from such Transactions.
7.7 FlowNet may, at any time and without prior notice to the Counterparty, set off any liability of the Counterparty to FlowNet under this Term against any liability of FlowNet to the Counterparty under this Term, whether either liability is present or future, liquidated or unliquidated, denominated in fiat currency or Eligible Cryptoassets. If the liabilities to be set off are expressed in different currencies or different Eligible Cryptoassets, FlowNet may convert either liability at a market rate of exchange for the purpose of set off.
8 Representations and Warranties
8.1 Each of FlowNet and the Counterparty represents and warrants to the other that, as at the date of this Term and continuously thereafter for the duration of the Term:
(a) it is duly organised and in good standing in its jurisdiction of formation;
(b) it has the requisite power and authority to execute this Term and to perform its obligations hereunder;
(c) it has taken all necessary action to authorise the execution and delivery of this Term and the consummation of the Transactions;
(d) this Term, when executed and delivered, will be its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable law and regulation;
(e) any consent, authorisation or instruction required in connection with its execution and performance of this Term has been provided by any relevant third party; and
(f) neither the execution nor performance of this Term will materially breach any applicable law or regulation, contract or other requirement to which either FlowNet or the Counterparty is bound.
8.2 In addition to the general representations and warranties stated under Clause 8.1, the Counterparty further represents and warrants to FlowNet as at the date of this Term and on a continuing basis throughout the duration of this Term that:
(a) it has the requisite power and authority to access and use the Activities;
(b) it holds all relevant authorisations, licences, permits, permissions and registrations that may be required from any regulatory authority to submit Orders and enter into Transactions by virtue of its access and use of the Activities;
(c) it acknowledges that FlowNet is not regulated by any governmental or regulatory authority and that nothing in this Term shall require FlowNet to obtain any authorisations, licences, permissions, consents or registrations from any governmental or regulatory authority to provide the Activities;
(d) it will enter all such associated Terms as FlowNet may require it to enter in connection with the provision of the Activities, and it shall comply with those Terms for the duration of their respective terms;
(e) it conducts its business in material compliance with all applicable law and regulation and it will not use the Activities or use the Activities to provide services or activities in any manner that is, or would result in, a breach of applicable law and regulation;
(f) it bears sole responsibility for ensuring its compliance with any applicable law and regulation and any Risk Controls and it acknowledges and agrees that FlowNet is under no obligation to ensure, assist or support the Counterparty in its compliance with the same;
(g) it bears sole responsibility for all investment decisions made in connection with its access to and use of the Activities;
(h) any factual information heretofore or contemporaneously furnished by or on behalf of the Counterparty to FlowNet for purposes of or in connection with the Activities is true and accurate in all material respects on the date as of which such information is provided to FlowNet;
(i) it has not relied on any oral or written representation or warranty made by FlowNet or any other person on FlowNet’s behalf, other than those explicitly set forth in Clause 8.1;
(j) it is not and none of its Underlying Clients are a Sanctioned Party or located or established in any jurisdiction or territory which is subject to Sanctions;
(k) if the Counterparty is acting on behalf of its Underlying Clients, (a) the Counterparty is in compliance in all material respects with Sanctions and, as applicable to the Counterparty, provisions of applicable law and regulation that may be applicable to the Counterparty from time to time in relation to anti-money laundering and terrorist financing, (b) the Counterparty has anti-money laundering policies and procedures in place reasonably designed to verify the identity of its Underlying Clients and investors and their sources of funds, and (c) the Counterparty has established the identities of and conducted thorough due diligence with respect to all of its Underlying Clients;
(l) it acknowledges that its use of the Activities is subject to the Risk Controls;
(m) it has implemented, maintains and is in compliance with appropriate policies and procedures as may be required by applicable law and regulation and good market practice in relation to compliance and risk, record-keeping, data security, financial crime, market abuse, governance and IT systems and infrastructure; and
(n) it has determined, and agrees that it is solely responsible for ensuring, that the Activities are sufficient for all legal, regulatory, contractual, operational and other requirements and obligations of the Counterparty, and that such Activities are appropriate and desirable for the Counterparty and its Underlying Clients as the case may be.
9 Liability
9.1 In no event will FlowNet be responsible or liable for any liabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or consequential losses, loss of profits, goodwill, reputation, loss of business opportunity or anticipated savings, and all interest, penalties and legal costs (calculated on a full indemnity basis)) (collectively Losses) suffered by the Counterparty unless such Losses are a direct result from the gross negligence, wilful default or fraud. In the event of such gross negligence, wilful default or fraud, the liability of FlowNet will not exceed the value of all fees, expenses and charges paid by the Counterparty within the last twelve (12) months in accordance with Clause 7.
10 Indemnity
10.1 Counterparty shall indemnify and hold FlowNet, its affiliates and subsidiaries harmless against all Losses and all other reasonable professional costs and expenses suffered or incurred by FlowNet arising out of or in connection with:
(a) any breach by the Counterparty of its obligations under this Term or under any related Terms entered into between the Parties in relation to the Activities;
(b) any breach of the warranties and representations given by Counterparty under this Term;
(c) any claim made against FlowNet for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Counterparty’s access to and use of the Activities; or
(d) any breach by FlowNet of any applicable law and regulation caused by any action, omission or default of the Counterparty and / or its Underlying Clients in its access to and use of the Activities.
10.2 If any payment due from the Counterparty to FlowNet under Clause 10.1 is subject to tax (whether by way of direct assessment or withholding at its source), FlowNet shall be entitled to receive from the Counterparty such amounts as shall ensure that the net receipt, after tax, to FlowNet in respect of the payment is the same as it would have been were the payment not subject to tax.
11 Confidential Information and Data Protection
11.1 Each of the Parties (the Recipient) shall keep confidential the other’s (the Disclosing Party) Confidential Information disclosed to it by or on behalf of the Disclosing Party or otherwise obtained, developed or created by the Recipient.
11.2 The Recipient shall:
(a) use the Confidential Information solely in connection with the performance of its obligations or exercise of its rights under this Term; and
(b) take all action reasonably necessary to secure the Disclosing Party’s Confidential Information against theft, loss or unauthorised disclosure.
11.3 The Recipient may disclose the Confidential Information:
(a) to its affiliates or third-party service providers to whom disclosure is required for the performance of the Recipient’s obligations under this Term, but only to the extent necessary to perform such obligations or exercise such rights; or
(b) if, and to the extent that, such information is required to be disclosed by applicable law or regulation or by any governmental or regulatory authority.
11.4 The Parties shall, in connection with this Term, comply with the Data Protection Laws and shall not, whether by any act or omission, intentionally place the other in breach of the Data Protection Laws.
12 Termination
12.1 Either Party may terminate this Term in whole or in part, with or without cause, by giving not less than one (1) months’ prior written notice to the other, with such notice given in accordance with Clause 13.
12.2 Without prejudice to any accrued rights and remedies under this Term, FlowNet may terminate this Term immediately by giving written notice to the Counterparty in accordance with Clause 13 if, in its sole discretion, it determines that:
(a) the Counterparty has committed a material breach of any of its obligations under this Term and, in the case of any breach which is capable of remedy, fails to remedy such breach within seven (7) days (or such longer period as FlowNet may specify) of delivery of a written notice to the Counterparty specifying such breach;
(b) any representation or warranty given by the Counterparty under Clauses 8.1 and 8.2 ceases to be true;
(c) the Counterparty objects to an amendment to this Term notified to it by FlowNet under Clause 13;
(d) a Default Event occurs in relation to the Counterparty;
(e) the continued provision of the Activities by FlowNet to the Counterparty would result in a breach of applicable law and regulation;
(f) a change in applicable law and regulation has occurred that requires FlowNet to seek appropriate authorisation with a regulatory or governmental authority in order to continue providing the Activities;
(g) the Counterparty has conducted or participated in any Transaction or behaviour that may present a material adverse impact or reflection on FlowNet’s reputation.