Virtual Currency Purchase & Sale Agreement
This Virtual Currency Purchase & Sale Agreement (this 'Agreement') is a binding contract between you ('Customer', 'you', or 'your') and ERATREE INC., a corporation organized under the laws of the United States ('EraTree', 'Provider', 'we', or 'us', and, together with Customer, the 'Parties', or, individually, a 'Party'). This Agreement governs your access to and use of the Services.
Article 1: Definitions
1.1 Defined Terms
In addition to the capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the meanings specified in this Article 1:
"Authorized User"
Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been provided hereunder.
"Customer Materials"
Means all information, data, content and other materials (including Trade Requests), in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer or an Authorized User through the Services, or to EraTree, in connection with Customer's and its Authorized Users' use of the Services, but excluding, for clarity, any information, data, content or materials owned or controlled by EraTree and made available through the Services.
"Customer Transfer Amount"
Shall mean the type and amount of the Virtual Currency or fiat currency Customer transfers or will transfer to EraTree pursuant to a Trade Confirmation.
"Derived Data"
Means (i) any data that is derived by EraTree while processing Customer Materials, that is aggregated, deidentified, and anonymized or sufficiently different from Customer Materials such that it no longer meets the definition of Customer Materials, and (ii) Customer Materials, where Customer and the attribution of activities to Customer cannot be identified from analysis or further processing of, or separately removed from, such derived data.
"Documentation"
Means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form provided by EraTree to Customer (including any revised versions thereof) to assist with or describe the Services, which may be updated from time-to-time upon notice to Customer.
"Electronic Communication"
Means the medium (either I-Message or the Platform) used by the Parties to communicate regarding Trade Requests (as defined below) and other matters specified in this Agreement.
"Foreign Bank"
Shall mean an organization that (i) is organized under the laws of a country other than Canada or the United States, (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 Canadian or U.S. branches or agencies of a foreign bank.
"Foreign Shell Bank"
Shall mean a Foreign Bank without a Physical Presence in any country, but does not include a regulated affiliate.
"I-Message"
Means a third-party electronic messaging platform (e.g. WhatsApp, Telegram, email) used by the Parties to communicate regarding Trade Requests and other matters specified in this Agreement.
"Intellectual Property Rights"
Means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how, licensing rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
"JAMS"
Means Judicial Arbitration & Mediation Services.
"Liens"
Shall mean security interests, liens, mortgages, hypothecations, pledges, claims (pending or threatened), rights of first refusal, charges, escrows, encumbrances or similar rights.
"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'), of which Canada and the United States are a member and with which designation the Canadian or United States representative to the group or organization continues to concur. For clarity, countries or territories that have been designated as 'Jurisdictions under Increased Monitoring' and 'High-Risk Jurisdictions subject to a 'Call for Action' with the FATF constitute Non-Cooperative Jurisdictions. See https://www.fatf-gafi.org/publications/high-risk-and-other-monitored-jurisdictions/?hf=10&b=0&s=desc(fatf_releasedate) for FATF's list of non-cooperative countries and territories.
"OFAC"
Shall mean the United States Office of Foreign Assets Control. The lists of OFAC's 'Specially Designated Nationals And Blocked Persons' can be found on the OFAC website at https://sanctionssearch.ofac.treas.gov/.
"Person"
Shall mean any individual, corporation, partnership, association, limited liability company, trust, estate or other entity, either individually or collectively.
"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.
"Platform"
Shall mean the cloud-based platform that enables Customer to, through the use of the Platform's application programming interface and/or user interfaces and without limitation, communicate and execute Trade Requests with EraTree or receive other Services.
"EraTree IP"
Means the Platform, Services Output, the Services, all improvements, modifications or enhancements to, or derivative works of, the foregoing, and all Intellectual Property Rights in and to any of the foregoing.
"EraTree Transfer Amount"
Shall mean the type and amount of the Virtual Currency or fiat currency EraTree transfers or will transfer to Customer pursuant to a Trade Confirmation (as defined below).
"Services"
Shall mean the Virtual Currency trading services which EraTree may provide Customer pursuant to ARTICLE 2, the Platform (if applicable), and any other products or services EraTree provides or gives to Customer pursuant to this Agreement or from time to time.
"Services Output"
Means all data, information and materials generated by the Services based on Customer Materials, including data models and data output.
"Use"
Means to use, access and/or operate the Services in accordance with this Agreement and the Documentation.
"Virtual Currency"
Means a digital asset that is not a security, derivative swap, future, or any other type of regulated financial product or instrument under the applicable laws and regulations of the United States, and whose issuance, sale, distribution, resale, or disposition is not considered an issuance, sale, distribution, resale, or disposition of a security or regulated financial instrument under applicable laws and regulations of the United States.
1.2 Interpretation
For purposes of this Agreement: (i) the words and phrases 'include,' 'includes', 'including' and 'such as' are deemed to be followed by the words 'without limitation'; (ii) the word 'or' is not exclusive; and (iii) the words 'herein,' 'hereof,' 'hereby,' 'hereto' and 'hereunder' refer to this Agreement as a whole. The Parties also agree that the normal rule of construction that an agreement will be interpreted against the drafting party does not apply to this Agreement. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement.
Article 2: Sale and Purchase of Virtual Currency
2.1 Orders
During the term of this Agreement, transactions may be initiated via a request, either through I-Message ('I-Message Request') or through the Platform ('Platform Request') to trade a Virtual Currency for fiat currency, a fiat currency for a Virtual Currency, or a Virtual Currency for Virtual Currency (I-Message Requests and Platform Requests each constitute a 'Trade Request').
(a) Execution Via a Trade Request
Upon receipt of a Trade Request, EraTree shall provide to Customer (i) a quoted price (which may be denominated in a fiat currency or another Virtual Currency, as requested by Customer) at which EraTree is willing to sell or purchase a specified quantity of such Virtual Currency or fiat currency (a 'Price Quote'), (ii) any trading fee to be paid in addition to the quoted price of the Virtual Currency or fiat currency ('Trading Fees'), and (iii) an expiry time for the price quote ('Expiry Time'). Trading Fees EraTree expects to charge Customer will be provided at that time. EraTree is not bound by the Trading Fees shared with Customer at any point in time and may alter the Trading Fees it quotes for each Price Quote at its sole discretion.
(b) Confirmation of Execution
Customer must accept the Price Quote within the Expiry Time via Electronic Communication, otherwise the Price Quote will be deemed to be rejected and expired and no transaction shall be effected in accordance with the Price Quote. If Customer accepts the Price Quote within the Expiry Time, EraTree may communicate confirmation of the intended transaction to Customer (a 'Confirmation of Execution'). If EraTree does not provide a Confirmation of Execution, the Price Quote shall be deemed to be rejected and consequently expire, and no transaction shall be effected in accordance with such Price Quote.
(c) Trade Confirmations
If EraTree provides a Confirmation of Execution to Customer, EraTree shall additionally send to Customer a trade confirmation confirming the terms of the purchase or sale in line with the Price Quote ('Trade Confirmation'), including details related to the EraTree Transfer Amount and/or Customer Transfer Amount.
(d) No Fiat-for-Fiat Transactions
Notwithstanding Section 2.1(a), the Parties may not transact a fiat currency for a fiat currency under any circumstance.
(e) Availability of Orders
EraTree may, at its sole and unfettered discretion and from time to time, determine the Virtual Currency or Virtual Currencies that shall be available for sale or purchase by the Customer pursuant to this Agreement.
(f) Electronic Communication
All communications between the Parties addressed in this Section 2.1 shall be performed by way of Electronic Communication.
2.2 Settlement of Orders
(a) Settlement Obligation
For each transaction, Customer or EraTree, as the case may be, will sell, transfer and deliver, and the other Party will purchase, all right, title and interest in and to the Customer Transfer Amount or the EraTree Transfer Amount, respectively, in accordance with methods of settlement set forth in the relevant Trade Confirmation and as detailed below.
(b) Transfer and Delivery Process
Unless otherwise agreed to by the Parties:
i. Customer Obligations
Shortly after Customer receives the Trade Confirmation, Customer shall transfer, or cause to be transferred, the Customer Transfer Amount to EraTree's fiat account ('EraTree Account') or wallet address (the 'EraTree Wallet'), whichever is applicable, to the designated bank account or wallet address provided by EraTree, in each case as notified by EraTree to Customer from time to time.
ii. EraTree Obligations
Promptly following receipt of the Customer Transfer Amount by EraTree, and in accordance with Section 2.4, EraTree shall transfer, or cause to be transferred, the EraTree Transfer Amount to Customer's fiat account ('Customer Account') or wallet address (the 'Customer Wallet'), whichever is applicable, to the designated bank account or wallet address provided by Customer, in each case as notified by Customer to EraTree from time to time. The date and time the Customer receives the EraTree Transfer Amount shall be referred to as the 'Settlement Time'.
2.3 Liquidity Provider
EraTree may elect to utilize a third-party escrow, custodian, liquidity provider, and/or banking partner (a 'Liquidity Provider') to effect or facilitate the delivery of Services.
2.4 Immediate Delivery
Notwithstanding anything to the contrary in this Agreement, EraTree shall immediately transfer ownership, possession, and control of the EraTree Transfer Amount to Customer following receipt of the Customer Transfer Amount, and as a result, Customer shall be free to use, or otherwise deal with the EraTree Transfer Amount without further involvement with, or reliance on EraTree or its affiliates, and without EraTree or any of its affiliates retaining any security interest or any other legal right to the EraTree Transfer Amount.
Article 3: Access and Use
3.1 Provision of Access
Subject to Customer's compliance with the terms and conditions of this Agreement, EraTree hereby grants Customer a worldwide, non-exclusive, non-transferable (subject to Section 9.3), non-sublicensable right to Use the Platform for Customer's internal business purpose during the Term; provided that Customer strictly complies with the restrictions set forth in Section 3.2.
3.2 Use Restrictions
Customer will not, and will not permit any Person to, use the Platform in any manner beyond the scope of the rights expressly granted in this Agreement.
Customer will not at any time, directly or indirectly, and will not permit any Person (including Authorized Users) to: (i) modify or create derivative works of the Platform, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (iii) sell, resell, rent or lease use of the Platform to any other Person, or otherwise allow any Person to use the Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Platform to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data (including any Customer Materials) for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Platform; (v) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (vi) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by EraTree for use expressly for such purposes; or (vii) use the Platform, Documentation or any other EraTree Confidential Information to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform.
3.3 Authorized Users
(a) Customer will not permit any other Person to access, use or operate the Platform, except that Customer may permit Authorized Users to Use the Platform; provided that Customer will ensure each such Authorized User complies with all applicable terms and conditions of the Agreement (including applicable privacy policies, acceptable use policies, and terms and conditions which may be posted or made available through the Platform), and Customer is fully and directly responsible to EraTree for any act or omission by each such Authorized User in connection with their use of the Platform.
(b)Customer agrees to promptly notify EraTree in writing of any changes or updates to Customer's list of Authorized Users, including notifying EraTree if any Authorized User is no longer authorized to act on behalf of Customer.
(c) Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Platform in accordance with customary security protocols (including using multi-factor authentication when available) and Documentation, and will promptly notify EraTree if Customer or any Authorized User knows or reasonably suspects that any user name and password has been compromised.
(d) Each account for access to and use of the Platform may only be accessed and used by the specific Authorized User for whom such account is created.
(e) Customer will further ensure that no Authorized User misrepresents their identity or otherwise provides any deceptive or misleading profile information or images when creating an account in connection with the Platform. Any act or omission committed by an Authorized User in relation to the Customer Wallet, the Customer Account, Trade Requests, or any other action taken pursuant to this Agreement is deemed as an authorized action by Customer.
3.4 Authorized User Actions
Any act or omission committed by an Authorized User in relation to the Customer Wallet, the Customer Account, Trade Requests, or pursuant to this Agreement is deemed to be an authorized action by Customer. Customer is fully and directly responsible to EraTree for any losses it suffers arising or resulting from an act or omission committed by the Authorized User in connection with their use of the Services. Customer agrees to promptly notify EraTree in writing of any changes or updates to Customer's list of Authorized Users, including notifying EraTree if any Authorized User is no longer authorized to act on behalf of Customer.
3.5 Third Party Software
The Platform may include, or may provide Customer with access to, software, source code or other technology licensed to EraTree from third Parties, and which may be owned by such third Parties (collectively, 'Third Party Software'). Customer acknowledges and agrees that Third Party Software is provided solely on an 'AS IS' basis, and that EraTree does not make any warranties or guarantees regarding Third Party Software and is not responsible for the operation or failure of, or any errors or bugs in, any Third Party Software.
3.6 Third Party Services
Certain features and functionalities within the Platform, as EraTree determines in its sole discretion, may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third party services, products, technology and content (collectively, 'Third Party Services') through the Services. Customer hereby acknowledges and agrees that EraTree is not the provider of the Third Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third Party Services caused in whole or in part by the Third Party Services, or any update or upgrade thereto.
3.7 Reservation of Rights
Nothing in this Agreement or the performance thereof will operate to grant Customer any right, title or interest, whether by implication, estoppel or otherwise, in or to the EraTree IP or Third Party Software, other than as expressly set forth in this Agreement. As between the Parties, EraTree will exclusively own all right, title and interest in and to the EraTree IP. Subject to Section 4.3, all Intellectual Property Rights created in any such EraTree IP will vest solely in EraTree upon creation, and to the extent that sole ownership does not originally vest in EraTree, such Intellectual Property Rights are hereby automatically and irrevocably assigned by Customer (and its Authorized Users) to EraTree. Customer will, and will ensure the Authorized Users will, take any and all actions and execute any and all documents necessary to give effect to the preceding sentence. Each Party hereby expressly reserves all Intellectual Property Rights not expressly granted hereunder.
Article 4: Data
4.1 Customer Data Ownership
As between Customer and EraTree, and subject to Section 4.2, Customer will own and retain all right, title and interest in and to all Customer Materials.
4.2 License to Access and Use
To enable EraTree to provide the Services, Customer agrees to grant EraTree access to Customer Materials through the delivery mechanism agreed upon by the Parties, in accordance with EraTree's technical specifications. During the term, Customer hereby grants EraTree a limited, non-sublicensable license to use, extract, reformat, manipulate, analyze, summarize, and otherwise derive information from the Customer Materials solely as necessary to provide the Services to Customer and operate, maintain, and improve the Services.
4.3 Services Output License
Subject to Customer's compliance with this Agreement (including its payment obligations), EraTree hereby grants Customer a non-exclusive, worldwide and revocable right and license to use the Services Output in connection with Customer's internal business purpose. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Services Output as delivered to Customer or Authorized Users.
4.4 Derived Data
Notwithstanding the above provisions of this ARTICLE 4, EraTree may combine any anonymized data, and use such combined anonymized data, or a subset thereof (provided that any such combined data or subset thereof may not solely consist of Customer Materials), to aggregate such data into Derived Data. The Derived Data shall not identify Customer, any Authorized User, or any of their holdings, positions, investments, portfolios, or related financial information. Customer hereby agrees that EraTree is the exclusive owner of all such Derived Data.
Article 5: Confidentiality
5.1 General
Any information that one Party provides to the other Party during the Term of this Agreement that is identified at the time of disclosure as confidential or, given the circumstances of disclosure or the nature of the information, reasonably should be considered to be confidential, will be 'Confidential Information' of the disclosing Party (the 'Disclosing Party'). For clarity, the Platform, Documentation, Trading Fees and the Services Output will be deemed the Confidential Information of EraTree.
5.2 Obligation
Each Party (the 'Receiving Party') will maintain the other Party's Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or enforce its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except: (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement; (ii) to financial institutions providing services to the Receiving Party in connection with any applicable anti-money laundering or compliance requirements; or (iii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
5.3 Exceptions
Nothing in this Agreement will prohibit or limit either Party's use of information: (i) rightfully known to it prior to receiving it from the Disclosing Party; (ii) independently developed by or for it without use of or access to the other Party's Confidential Information; (iii) permissibly acquired by it from a third party which is not under an obligation of confidence with respect to such information; or (iv) which is or becomes publicly available through no breach of this Agreement. Without limiting the foregoing, nothing in this Agreement will limit or restrict EraTree's ability to use or disclose any general know-how, experience, concepts and/or ideas that EraTree or its personnel acquire or obtain in connection with the performance of EraTree's obligations hereunder.
5.4 Permitted Disclosures
The terms and conditions of this Agreement will constitute Confidential Information of each Party, but may be disclosed on a confidential basis to a Party's advisors, attorneys, actual or bona-fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
Article 6: Representations and Warranties
6.1 Mutual Representations and Warranties
In addition to any representations or warranties laid out elsewhere in this Agreement, each Party represents and warrants to the other Party that: (i) it is a legal entity duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of incorporation or formation; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licences granted hereunder, and to perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and (iv) when executed and delivered by the Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
6.2 EraTree's Representation and Warranty
In addition to any representations or warranties laid out elsewhere in this Agreement, EraTree represents and warrants to Customer that, as of the Settlement Time, EraTree will have, and Customer will receive, good and marketable title to the EraTree Transfer Amount, free and clear of any and all liens.
6.3 Customer's Representations and Warranties
In addition to any representations or warranties laid out elsewhere in this Agreement, Customer represents and warrants to EraTree that:
(a) The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, are not likely to violate any applicable laws, regulations, or other orders made by a government agency or court;
(b) Customer will have, and EraTree will receive, good and marketable title to the Customer Transfer Amount as of the Settlement Time, free and clear of any and all liens;
(c)Neither Customer, nor any Person who controls Customer or any Person for whom Customer is acting as an agent or nominee, as applicable (1) bears a name that appears on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time; (2) is a Foreign Shell Bank; (3) resides in or whose funds are transferred from or through an account in a Non-Cooperative Jurisdiction; or (4) is in violation of, or subject to sanctions under, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the 'USA Patriot Act'), as amended, or any implementing regulations or executive orders issued thereunder;
(d)Customer shall adhere to all 'know-your-client', 'know-your-business', and anti-money laundering protocols and procedures required or recommended by the applicable laws and regulations;
(e) Customer acknowledges that applicable anti-money laundering and know-your-client regulations may apply to the transactions contemplated by this Agreement and that EraTree may, from time to time, adopt policies and procedures to address the reporting, recordkeeping, client identification, and ongoing monitoring requirements of that legislation, and accordingly Customer shall abide by, and shall ensure Authorized Users abide by, all such policies and procedures; and,
(f)Notwithstanding any other provisions in this Agreement, upon the request of EraTree, the Customer shall provide to EraTree documentation and other information requested by EraTree in connection with applicable 'know-your-client' and anti-money laundering rules and regulations ('KYC Documents').
Article 7: Term, Default and Termination
7.1 Term
This Agreement shall begin on the Effective Date and shall remain in effect unless and until terminated by either Party for any reason upon 30 days written notice to the other Party, or if applicable, terminated in accordance with Section 7.3 and 7.4 ('Term').
7.2 Events of Default
Each of the following shall be deemed an 'Event of Default' by Customer:
(a) Customer fails to comply with any provision of, or perform any obligation under, this Agreement or any other agreement with EraTree or any of its affiliates, including its obligation to deliver to EraTree any Customer Transfer Amount when due in accordance with the terms of a Trade Confirmation;
(b) Any representation or warranty made by Customer is not, or ceases to be, true or correct in any material respect;
(c)Customer has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or similar 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 judgment 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)A regulatory authority suspends the conduct of Customer's business or revokes any material authorizations, memberships, licenses or other similar approvals, or initiates an investigation into the conduct of the Customer with the intention of suspending such conduct or revoking any material authorizations, memberships, licenses or other similar approvals.
7.3 Remedies
Upon the occurrence of an Event of Default, EraTree shall have the right, in its sole discretion, to take any of the following actions:
(a) Cancel and terminate any transaction that has not yet settled, and require Customer to pay EraTree an amount reasonably determined by EraTree to compensate it for any and all losses, costs, expenses, and fees incurred in connection with such cancelled trade or unsettled transaction, including any loss of bargain, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position;
(b) Set off and/or net any obligations of EraTree owing to Customer against any obligations of Customer owing to EraTree; and,
(c) Notwithstanding anything to the contrary, immediately terminate this Agreement or suspend the provision of Services, upon written notice to the Customer.
7.4 Regulatory Suspension
EraTree may immediately terminate this Agreement or suspend the provision of Services if EraTree, at its sole discretion, (i) is not satisfied with KYC Documents provided by Customer, or (ii) deems it necessary or prudent in order to comply with applicable laws and regulations or for its business needs.
7.5 Survival
This ARTICLE 7, and ARTICLE 1, ARTICLE 4, ARTICLE 5, ARTICLE 8, ARTICLE 9, and Sections 3.2, 3.4, 3.5, 3.6, and 3.7 shall survive any termination or expiration of this Agreement.
Article 8: Liability and Indemnity
8.1 Disclaimers and Notices
(a) ERATREE IS NOT CURRENTLY LICENSED OR REGISTERED IN ANY JURISDICTION – EraTree is not licensed or registered as a dealer, adviser, investment fund manager, marketplace, alternative trading system, investment company, or with any securities, derivatives, or commodity-related regulatory authority.
(b) ERATREE DOES NOT RECOMMEND, ENDORSE, ADVOCATE OR SPONSOR VIRTUAL CURRENCY TRANSACTIONS– EraTree is not an authorized financial advisor or representative and does not give tax, employment, or investment advice. Any price information, quotes, forecasts, return estimates, or indications of past performance are for information purposes only and do not guarantee future performance and do not constitute an offer to buy or sell or any solicitation of an offer to buy or sell any currencies, currency pairs, or other property, nor to enter into any virtual currency transaction. EraTree shall not be or be deemed to be Customer's financial advisor or fiduciary with respect to Customer's intention to offer to buy, sell or trade any currencies or virtual currencies.
(c) ERATREE IS IN NO WAY RESPONSIBLE FOR CUSTODIANSHIP– EraTree is in no way responsible for the custodianship associated with Customer's funds or virtual currencies, the Customer Wallet, or any fiat account held by or associated with Customer.
(d) THE RISK OF COMPLETE LOSS– The risk of complete loss in trading or holding any type of virtual currency can be substantial. As with any asset, the value of virtual currencies can go up or down and there can be a substantial risk that Customer loses money buying, selling, holding, or investing in virtual currencies. Customer is solely responsible for evaluating the merits and risks associated with requesting and completing a virtual currency trade. Virtual currency transactions requested by Customer pursuant to this Agreement are at Customer's risk and peril.
(e) SERVICES PROVIDED AS IS– The Services, including the Platform, are provided on an 'AS IS' and 'AS AVAILABLE' basis. Neither EraTree nor any of its parent(s), subsidiaries, affiliates, or their respective directors, officers, employees, agents, service providers, contractors, licensors, licensees, suppliers, or successors make any warranty, representation, or endorsement (except for the representations EraTree expressly makes in this Agreement). To the fullest extent permitted by law, EraTree expressly disclaims all representations, warranties, covenants, and conditions of any kind, whether express or implied, statutory or otherwise, including (1) any warranty of merchantability; (2) fitness for a particular purpose; (3) non-infringement; (4) that the Services or any virtual currencies purchased via the Services will meet Customer's requirements; (5) that the Services will be uninterrupted, timely, secure, or error free; and (6) that any potential defects with the Services will be corrected. Customer understands that any use of or reliance on the Services, or any virtual currencies purchased via the Services, is at Customer's own discretion and risk.
(f) NO CONTROL OVER VIRTUAL CURRENCY NETWORK – EraTree has no control over any virtual currency network and therefore cannot and does not ensure that any transaction Customer wishes to effect through the Services will be confirmed on the relevant virtual currency network. A Trade Request may not be completed, or may be substantially delayed, by the virtual currency network used to process the transaction.
(g) NO LIABILITY FOR CUSTOMER MATERIALS – Without limiting the generality of Section 8.1(e), under no circumstances will EraTree be liable in any way for any Customer Materials, including liability for any errors, inaccuracies, or omissions therein, infringement of intellectual property rights, or breach of this Agreement, or applicable laws. Customer acknowledges that it is responsible for maintaining adequate security and control of and all IDs, passwords, hints, personal identification numbers (PINs), or any other codes that Customer uses to access or in relation to the Services.
8.2 Limitation of Liability
(a) Exclusion of Damages – IN NO EVENT WILL ERATREE BE LIABLE TO CUSTOMER, ITS AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Total Liability – IN NO EVENT WILL ERATREE'S (OR ITS LICENSORS') TOTAL LIABILITY TO CUSTOMER, ITS AUTHORIZED USERS OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE TRADING FEES ACTUALLY PAID BY CUSTOMER TO ERATREE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO SUCH LIABILITY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(c) Basis of the Bargain – THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS ARTICLE 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN ERATREE AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
8.3 Customer Indemnity
Customer shall indemnify, defend, and hold harmless EraTree and each of its respective officers, directors, employees, agents, successors, and permitted assigns (each, a 'EraTree Indemnitee') from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder, incurred or experienced by such EraTree Indemnitee arising out of or related to any material breach by Customer of this Agreement.
Article 9: Miscellaneous
9.1 Amendments
This Agreement may not be modified except in a written agreement executed by authorized representatives of both Parties.
9.2 No Waiver
Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
9.3 Assignment; Successors and Assigns
Customer may not assign or delegate its rights or obligations hereunder without the prior written consent of EraTree, which may be withheld in EraTree's sole discretion. Notwithstanding the foregoing, each Party may assign this Agreement in case of merger, acquisition or sale by the assigning Party of all or substantially all of the assets to which this Agreement relates, provided that any such assignee agrees in writing to be bound by all the obligations of the assigning Party under this Agreement. Any attempt to assign or transfer this Agreement, in contravention of the foregoing will be null and of no effect. Subject to the foregoing, this Agreement will bind, and inure to the benefit of, each Party's permitted successors and assigns.
9.4 Severability
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
9.5 Descriptive Headings and Construction
The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Unless otherwise indicated, references to Articles and Sections herein are references to Articles and Sections of this Agreement.
9.6 Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of applicable state, without regard to its conflict of law principles.
9.7 Dispute Resolution Procedure
(a) Subject to Section 9.7(f), any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof shall be settled solely and exclusively by binding arbitration in accordance with the rules and procedures established by mutual agreement of the Parties.
(b) Each Party shall bear its own attorneys' fees and expenses.
(c) The Parties agree to abide by all decisions and awards rendered in such proceedings, and acknowledge that such decisions and awards shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity.
(d) If for any reason this arbitration clause becomes not applicable, then each Party, (i) to the fullest extent permitted by applicable law, hereby irrevocably waives all right to trial by jury as to any issue relating hereto in any action, proceeding, or counterclaim arising out of or relating to this agreement or any other matter involving the Parties, and (ii) submits to the exclusive jurisdiction and venue of the courts located in the applicable jurisdiction, and each Party agrees not to institute any such action or proceeding in any other court in any other jurisdiction.
(e) The provisions enumerated in this Section 9.7 do not hinder the rights of either Party to seek injunctive or equitable relief in any jurisdiction to limit immediate, serious and irreparable injury.
9.8 Entire Agreement
This Agreement and each Trade Request 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.
9.9 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 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.
9.10 Notices, Consents, etc.
Any notices to us must be sent to our corporate headquarters address and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us.
9.11 No Third-Party Beneficiary
The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person. Notwithstanding the foregoing, EraTree may assign all or any of its rights or transfer all or any of its rights, obligations and liabilities under this Agreement to any of its affiliates.
9.12 Feedback
From time to time, Customer or its Authorized Users may provide EraTree with suggestions, comments and feedback with regard to the Services (collectively, 'Feedback'). Customer, on behalf of itself and its Authorized Users, hereby grants EraTree a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with EraTree's business purposes, including the testing, development, maintenance and improvement of the Services.
9.13 Force Majeure
Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, communications failure or degradation, material changes in law that prohibit EraTree from providing the Services, war, terrorism, riot, or acts of God.