Snowball Agreement
This Snowball Agreement (Agreement) is entered into by and between Aux Cayes FinTech Co. Ltd., a company incorporated in the Republic of Seychelles with its principal place of business at Suite 202, 2nd Floor, Eden Plaza, Eden Island, Victoria, Mahe, Seychelles (OKX), and you (Customer), and together with OKX, Parties and each a Party.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
This Agreement applies to Customers investing in certain products and/or services (collectively, Product or Services) from OKX, and OKX agrees to offer such Products to Customers, which products are derivative or structured products of virtual currency and/or digital asset (collectively, Digital Currency); and the Parties may enter into one or more transactions for the Digital Currency pursuant to the terms and conditions of this Agreement. This Agreement shall supplement the OKX Terms of Service. In the event of any conflict or inconsistency between any term or provision set forth in this Agreement and in the OKX Terms of Service, such conflict or inconsistency shall be resolved by giving precedence to this Agreement. All other provisions of the OKX Terms of Service not modified by this Agreement shall remain in full force and effect.
1. Definitions
Account means an account the Customer has with OKX for the purpose of, but not limited to, trading, paying fees, purchases or subscriptions of Products offered by OKX and recording of transactions thereof.
Additional Disruption Events mean any Change in Law Event (as defined in Article 3.1), Hedging Disruption, or any other event which results in the Product (including any related hedge), whether with respect to the Underlying Asset(s) or any constituent thereof, being affected (including where it has or will become unlawful or impractical, whether commercially or otherwise, to provide or to continue to provide the Product, or there is a substantial likelihood of the same), as determined at the sole discretion of OKX. See also the Risk Disclosure Statement and Disclaimer in the Exhibit to this Agreement.
Affiliate means, in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person.
Applicable Law means (regardless of jurisdiction) any applicable federal, national, state and local laws, ordinances, regulations, orders, statutory instrument, rules, treaties, codes of practice, guidance notes, policy statements, customary laws, decrees, injunctions, or judgments and any ruling, declaration, regulation, requirement, request or interpretation issued by any (or any quasi-) regulatory, judicial, administrative or governmental body.
APR means the Annual Percentage Rate, which is used as an indicator or measure of the returns of the Product.
Business Day means a day on which OKX is open for business except any Saturday, any Sunday, or any day which is a legal holiday or any day on which banking or other financial institutions are authorized or required by law or other governmental action to close in Hong Kong or other applicable jurisdictions as the case may be.
Calculation Agent means OKX, unless stated otherwise. OKX shall be responsible for determining the value of a Product, including a structured product or a derivative. The Calculation Agent has the sole discretion in determining the value of such a Product and the amount owing from each Party in a commercially reasonable manner and in good faith. The Calculation Agent can establish the price for the Product, and may act as its guarantor and issuer. All calculations, determinations or adjustments made by the Calculation Agent, in the absence of any manifest error, shall be final, conclusive and binding on the holder of any Product.
Confidential Information means proprietary, confidential or private information, data or material (in whatever form maintained, whether documentary, computerized, electronic, oral or otherwise) disclosed by a Party (the disclosing Party) under or in connection with this Agreement to another Party (the receiving Party), including, without limitation, (a) if in tangible form, such information, data or material marked as proprietary, confidential or private, (b) if oral, such information, data or material identified as proprietary, confidential, or private, or (c) in all cases, such information, data or material in any form, which upon receipt by the receiving Party should reasonably be understood to be proprietary, confidential or private.
Digital Currency(ies) means Bitcoin (BTC), Ethereum (ETH), Tether (USDT), USD Coin (USDC), Solana (SOL) and any other digital currency offered in the Product from time to time.
Governmental Authority means the government of any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Hedging Disruption means that the hedging party or entity is unable, after using commercially reasonable efforts, to: (a) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the price risk of entering into and performing its obligations with respect to the relevant transaction, or (b) realize, recover or remit the proceeds of any such transaction(s) or asset(s), as determined at the sole discretion of OKX.
Non-Cooperative Jurisdiction means 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, including but not limited to, the Financial Action Task Force on Money Laundering (FATF), of which the United States is a member and with which designation the United States representative to the group or organization continues to concur. See http://www.fatf-gafi.org for FATF’s list of non-cooperative countries and territories, which may be updated from time to time.
Non-scheduled Early Termination Amount means in respect of any Product, an amount, in the specified Digital Currency, which shall be determined by the Calculation Agent as the fair market value of the Product at the chosen valuation time on the second Business Day following an Event of Default, less any relevant fees and costs incurred prior to the date of redemption, determined by reference to such factors as the Calculation Agent considers to be appropriate including, without limitation: (a) market prices or values for any Underlying Asset(s) and other relevant economic variables (such as interest rates and, if applicable, exchange rates) at the relevant time, taking into account the bid or offer prices of any Underlying Asset(s) and such other relevant economic variables; (b) the remaining term of the Product had it remained outstanding to the date of Settlement Date; (c) if applicable, accrued interest; (d) internal pricing models of the Issuer and its Affiliates; and (e) the cost of the Issuer in connection with an Event of Default, as applicable. The Calculation Agent shall adjust such amount fully for any reasonable expenses and costs of the Issuer and/or its Affiliates, including, those relating to the unwinding of any Underlying Assets and/or related hedging arrangements, as determined by the Calculation Agent.
Issuer means OKX, unless otherwise specified in any documentation.
OFAC means the United States Office of Foreign Assets Control. The lists of OFAC prohibited countries, territories, persons and entities can be found on the OFAC website at http://www.treas.gov/offices/enforcement/ofac
Person means any individual, corporation, partnership, association, limited liability company, trust, estate or other entity, either individually or collectively.
Risk Disclosure Statement and Disclaimer means the document set forth in the Exhibit to this Agreement.
Service Provider means any service provider, intermediary, agent, hedging entity involved in trading, holding or storing the Digital Currencies or any third party that may be appointed by Issuer from time to time in relation to the Product for any purpose, pursuant to this Agreement or any other documentation.
Settlement Date means the scheduled maturity date of each Product, as displayed to the Customer in the confirmed trade details on the OKX Platform.
Shell Bank means a bank without a physical presence in any country, but does not include a regulated Affiliate. A physical presence means a place of business located at a fixed address which is not a post office box or an electronic address, in a country in which the bank is authorized to conduct banking activities, at which location the bank (a) employs one or more individuals on a full-time basis, (b) maintains operating records related to its banking activities, and (c) is subject to inspection by the banking authority that licensed the bank to conduct banking activities.
Product Terms means the Product details which OKX shall make available to Customer from time to time in an indicative or final version or as otherwise specified.
Transfer means, as applicable, the delivery of Digital Currency from one Party to the other Party hereunder.
Underlying means the asset, currency or index that provides liquidity to the Product, and any Underlying Asset means the primary component depending on which the Product derives or determines its value.
2. Product
2.1 Indicative Product Terms: During the term of this Agreement, Customer may ask for indicative details of certain Products available on and offered by OKX (Product Terms) at the OKX Platform. An indicative version of the Product Terms setting out applicable indicative details including: terms and conditions, term, estimated earnings or yields, APR, initial, profit and caution prices, may be provided by OKX or displayed on the OKX Platform, some or all of which details may be amended after order execution (described further below). OKX may provide the indicative version of the Product Terms by sharing the same with Customer. The Customer shall review, confirm and acknowledge the Product Terms.
2.2 Order instruction: The Customer shall then provide an order instruction to OKX. The indicative version of the Product Terms shall remain revocable by OKX and subject to amendment by OKX until and unless OKX executes the order by booking it in its internal system and communicating confirmed trade details to the Customer. Customer acknowledges that the confirmed order details may vary from the order instructions communicated by it, due to the time lag between order instruction and OKX’s execution.
2.3 Order execution: Upon receiving the order instruction:
(a) If the order instruction was communicated by the Customer to OKX by subscription to the Product on the OKX Platform, then OKX shall communicate to the Customer that the order instruction has been received and is pending execution. For such orders, the order instruction has not yet been executed, until a further confirmation has been provided to the Customer that the order has been executed (shown by the status “Earning” in the trade details visible to the Customer). While the order is pending execution, the Customer cannot revoke, cancel or amend its order in any way; or
(b) If the order instruction was communicated by the Customer to OKX by any means other than a subscription to the Product on the OKX Platform, then OKX shall communicate to the Customer only once the order instruction has been executed (shown by the status “Earning” in the trade details visible to the Customer). While the order is pending execution, the Customer cannot revoke, cancel or amend its order in any way.
2.4 Prefunding: Customer shall ensure that its Account has sufficient Digital Currency to allow OKX to execute its instructions in relation to the Product (Prefunding). The amount of Prefunding is the total notional amount of the Product agreed with the Customer prior to order instruction. Customer hereby authorises OKX to Transfer the Prefunding from the Customer’s Account to OKX’s own account to sign up for the Product. With respect to the Prefunding, Customer agrees to grant OKX all necessary consents, powers and authorities to act, manage, perform, transact, place, complete any order, purchase or subscription of the Products, or cancel, revoke, redeem, terminate or liquidate the same.
2.5 Communication: Customer authorizes OKX to rely on instructions by whatever means transmitted which appear or purport to be sent by or authorized by Customer. OKX may record and monitor conversations OKX has with Customer. The Parties may mutually agree on communication channels which shall be used for communication purposes from time to time.
2.6 Settlement: At the Settlement Date, OKX will determine at 8:00 (UTC) the payout payable to the Customer (i.e. whether the Customer is entitled to the payout shown in its trade details page under the scenarios of max profit, early profit or caution). Thereafter (indicatively, by or around 8:30 (UTC)), OKX will pay to the Customer the agreed payout by way of Transfer to its Account.
2.7 Fee: OKX may charge a fee for purchase or subscription of the Products, as shown on the OKX Platform from time to time.
2.8 Customer is responsible for communicating accurate instructions to OKX. Customer shall provide all information OKX may request concerning the Customer and/or its use of its products or services. All such information may be reported to any applicable regulatory authority if required. Customer agrees that it will not engage in any activity that circumvents securities laws or regulations.
2.9 In the event that Customer disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of any purchase, subscription, transaction or obligation, OKX shall be authorized to cancel, revoke, redeem, terminate or liquidate or otherwise offset the relevant position or trade without prior notice to or approval from Customer.
2.10 The Customer is responsible for maintaining adequate security and control of any and all of its passwords, private keys, and any other codes that it uses to transfer or receive Digital Currency hereunder. The Customer will be solely responsible for the private keys that it uses to make the Transfers and for maintaining secure back-ups. The Customer will promptly notify OKX of any security breach of its Accounts, systems or networks as soon as possible. The Customer will cooperate with OKX in the investigation of any suspected unauthorized Transfers or attempted Transfers using the Customer’s Account credentials or private keys, and any security breach of its Accounts, systems, or networks, and provide OKX with the results of any third-party forensic investigation that it may undertake. The Customer will be responsible for any unauthorized Transfers made utilizing its passwords, private keys, and any other codes it uses to make or receive Transfers.
3. Change in Law and Events of Default
3.1 The Customer’s purchase or subscription may be cancelled, revoked, redeemed, terminated or liquidated prior to Settlement Date due to a Change in Law Event (as defined below), and you may lose some or all of your investment.
Where, due to a Change in Law Event, the Product (including any related hedge), whether with respect to the Underlying Asset(s) or any constituent thereof, is affected (including where it has or will become unlawful or impractical, whether commercially or otherwise, to provide or to continue to provide the Product, or there is a substantial likelihood of the same) due to (a) the adoption of, or any change in, any relevant law, rule, regulation, judgment, order, sanction or directive of any governmental, administrative, legislative or judicial authority or power (including any tax law) or (b) the promulgation of, or any change in, the interpretation by any court, tribunal, governmental, administrative, legislative, regulatory or judicial authority or power with competent jurisdiction of any Applicable Law (each of (a) and (b), a Change in Law Event, as determined at the sole discretion of OKX), then OKX may, in its sole discretion, adjust the terms of the Product or cancel, revoke, redeem, terminate or liquidate the purchase or subscription or Product. If OKX elects to do so, if permitted by any Applicable Law, OKX shall pay to Customer an amount equal to the Non-scheduled Early Termination Amount of such Product.
3.2 It is further understood that each of the following shall constitute an Event of Default by a Party:
(a) any Additional Disruption Event;
(b) any bankruptcy, insolvency, reorganization or liquidation proceedings or other similar proceedings for the relief of debtors or dissolution proceedings shall reasonably be expected to be instituted by or against a Party;
(c) if any representation or warranty made by such Party in this Agreement proves to be fraudulent, incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated;
(d) the Customer fails to obtain an exemption or license, or fails to obtain renewal of any necessary exemption or license from any relevant Governmental Authority, or any exemption or license has been withdrawn, which results in the Customer becoming prohibited from operating its business or would reasonably be expected to adversely affect the performance of the Customer’s obligations under this Agreement;
(e) the Customer is subject to governmental, administrative or regulatory proceedings, as follows:
(i) the Customer becomes subject to or is a defendant in any investigation, proceeding or action relating to, is indicted for, or is convicted of any felony, or any other crime or potential crime relating to securities, investment management, or Digital Currency transactions, or involving fraud or breach of trust, money laundering or terrorist financing activities;
(ii) the Customer becomes subject to any governmental, regulatory or administrative investigation, proceeding, action or sanction of or by any Governmental Authority; and
(f) the Customer is is likely to be unable to pay its debts on the Settlement Date or is unwilling to perform its obligations under this Agreement or any other agreement or arrangement with OKX.
3.3 Upon the occurrence of and during the continuation of any Event of Default by a Party, the non-defaulting Party may, at its sole discretion and option at any time and with prior reasonable notice to the other Party:
(a) declare all amounts/Digital Currencies available under the Products immediately due and payable;
(b) where OKX is the non-defaulting Party, it may cancel, revoke, redeem, terminate or liquidate any or all transactions and agreements hereunder between the Customer and OKX or extend or accelerate the Settlement Date of the same;
(c) where Customer is the non-defaulting Party, the Customer may, by written notice addressed and delivered to OKX declare its purchase or subscription to be immediately due and payable and unless all such defaults have been cured by OKX prior to the receipt of such notice, OKX shall pay to the Customer the Non-scheduled Early Termination Amount (and the payment of such amount shall be postponed until the day after the Non-scheduled Early Termination Amount has been finally determined); and
(d) exercise all other rights and remedies available to such Party as such Party reasonably deems appropriate, under Applicable Law or in equity.
For the avoidable of doubt, in any event, there shall be no secondary market sale of the Product or any obligations under this Agreement by Customer to a third party, without prior written consent of OKX.
3.4 OKX may exercise any of the above rights in the case of a force majeure situation, which situation includes but is not limited to any circumstances that are outside the reasonable control of either Party and which could not have been prevented or avoided by either Party, and such situation continues for a period of thirty (30) days, such situation to be determined at the sole discretion of OKX.
4. Representations and Warranties
4.1 OKX represents and warrants to Customer, as of the date hereof and on each Settlement Date:
(a) OKX is a company incorporated in and under the laws of Seychelles. OKX has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by OKX of this Agreement, the performance by OKX of its obligations hereunder and the consummation by OKX of the transactions contemplated hereby have been duly authorized; and
(b) this Agreement has been duly executed and delivered by OKX and (assuming due authorization, execution, and delivery by Customer), this Agreement constitutes valid and legally binding obligations of OKX, enforceable against OKX in accordance with its terms.
4.2 Customer hereby represents and warrants to OKX, as of the date hereof and on each Settlement Date:
(a) Customer has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Customer of this Agreement, the performance by Customer of its obligations hereunder and the consummation by Customer of the transactions contemplated hereby have been duly authorized by all requisite company action on the part of Customer;
(b) this Agreement has been duly executed and delivered by Customer, and this Agreement constitutes valid and legally binding obligations of Customer, enforceable against Customer in accordance with its terms;
(c) neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated herein, does or will violate any statute, regulation, rule, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Customer or any of its assets is subject to nor does this Agreement conflict with, violate or constitute a default under any agreement, debt or other instruments to which Customer is a party;
(d) neither Customer, any Person who controls Customer, any Person for whom Customer is acting as an agent or nominee (other than as may be set forth on the signature page hereto), nor any client of the Customer bears a name that appears on the lists of prohibited persons and entities maintained by OFAC from time to time, is a Shell Bank, or resides in or whose purchase / subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction;
(e) Customer is the legal owner of the Digital Currency in its Account and has good title thereto. Each Customer Account is owned and operated solely for the benefit of Customer or its Affiliates, and no Person, other than Customer or its Affiliates, has any right, title, or interest in any Customer Account;
(f) Customer agrees, understands and acknowledges that:
(i) OKX engages in the bilateral purchase and sale of Digital Currencies and Products, including transactions on a proprietary basis whether as contemplated by this Agreement or otherwise and in situations which may conflict with the Customer’s position;
(ii) if OKX transacts with Customer, it does so solely on a bilateral basis and in a principal capacity; and
(iii) OKX is not providing and will not provide any custody, fiduciary, advisory or other similar services with respect to the Customer, any Person related to or affiliated with Customer, or any transaction subject to this Agreement. Customer further agrees, represents and warrants that Customer is solely responsible for any decision to enter into a transaction subject to this Agreement, including the evaluation of any and all risks related to any such transaction, and in entering into any such transaction, Customer has not relied on any statement or other representation of OKX other than as expressly set forth herein;
(g) Customer is in compliance with all Applicable Law, including the U.S. Foreign Corrupt Practices Act, the United Kingdom Bribery Act and similar Applicable Law in other countries that prohibit improper payments to obtain a business advantage. Customer also warrants that it is not in any way engaged in money laundering or the financing of crime or terrorism; and
(h) all material information supplied by Customer to OKX, including but not limited to ownership information, company information, banking information, the information and names of persons authorized to act on behalf of Customer, and authorized trader information, is true and accurate and such information does not contain, when taken as a whole and on the relevant date, any misleading information or any omission to state therein. Furthermore, Customer represents and warrants that it will immediately notify OKX promptly in the event of a change to any such information.
4.3 Customer agrees and acknowledges that it has carefully read, understood and acknowledged the risks identified in this Agreement and in the Risk Disclosure Statement and Disclaimer set forth in the Exhibit which applies to all and every Product that Customer shall agree to purchase or subscribe to during the term of this Agreement.
5. Limitation of Liability and Indemnity
5.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OKX SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2 THE CUSTOMER SHALL INDEMNIFY AND HOLD OKX HARMLESS, AND ITS RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIM, ACTION, LIABILITY, LOSS, DAMAGE, COST, OR EXPENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES, EXPERTS’ FEES AND COURT COSTS, ARISING OUT OF ANY BREACH BY THE CUSTOMER OF ITS OBLIGATIONS, REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT.
5.3 THE CUSTOMER AGREES THAT CUSTOMER’S USE OR NON-USE OF THE SERVICES OR THE PRODUCT AND ENTRY INTO THIS AGREEMENT ARE AT THE CUSTOMER’S OWN RISK, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY UNDER THIS AGREEMENT. ALL PRODUCTS AND SERVICES PROVIDED TO THE CUSTOMER UNDER THIS AGREEMENT ARE STRICTLY OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND OKX AND ITS AFFILIATES OR ITS SERVICE PROVIDERS OR SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO THE CUSTOMER OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, NO ERRORS OR OMISSIONS, CONTINUITY, ACCURACY, RELIABILITY OF THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE CUSTOMER. OKX DOES NOT MAKE ANY UNDERTAKINGS AND WARRANTIES FOR THE VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR TIMELINESS OF THE TECHNOLOGY AND INFORMATION IN CONNECTION WITH THE PRODUCT OR OTHER SERVICES PROVIDED BY OKX UNDER THIS AGREEMENT.
5.4 The terms of this Agreement do not, in any way, seek to exclude or limit OKX’s liability which cannot be limited or excluded by law. Any such liability, once established, shall be limited to the extent that it is clearly attributable to OKX.
6. Miscellaneous
6.1 OKX may unilaterally modify this Agreement, and if any modification are made, the revised contents shall be posted on OKX Platform. Your continued use of or access to the Service following the posting of any modifications constitutes acceptance of those changes. If you do not accept the revised contents, you should stop using the Services.
6.2 No failure to exercise and no delay in exercising any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy or power provided herein or by law or in equity.
6.3 This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors, heirs, personal representatives, and permitted assigns. Neither Party may assign or delegate its rights, interests or obligations hereunder without the prior written consent of the other Party, which may be withheld in such Party’s sole discretion, provided that OKX may assign its rights, interests or obligations under this Agreement by only notice in writing to the Customer.
6.4 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.
6.5 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 herein are references to Articles of this Agreement.
6.6 This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without giving effect to the rules, principles, or laws regarding conflicts of law thereof.
6.7 Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and solely, exclusively and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted. The law of this arbitration clause shall be English law. The number of arbitrators shall be one (1).The arbitration proceedings shall be conducted in English. Arbitration hereunder may proceed notwithstanding that any Party fails to participate in accordance with the HKIAC Administered Arbitration Rules, provided that proper notice of such arbitration has been given to such Party, and the final award of the arbitral tribunal shall be binding on such Party notwithstanding its failure to participate. The arbitral award is final and binding upon both Parties.
6.8 OKX and Customer hereby agree to not disclose and to otherwise keep confidential, the transactions contemplated hereby, any information disclosed in connection with a potential transaction, the existence or nature of any relationship between the Parties, the name of the other Party, the fact that the Parties engaged in or discussed any transaction and any Confidential Information about the other, provided, however, that each Party may disclose Confidential Information to its directors, officers, members, employees, agents, Affiliates, and professional advisers or to financial institutions providing services to a Party in connection with any applicable anti-money laundering or compliance requirements. If either Party is required by Applicable Law, rule or regulation to disclose Confidential Information about the other Party (Required Party), the Required Party will, to the extent legally permissible, provide the other Party (Subject Party) with prompt written notice of such requirement so that such Subject Party may seek an appropriate protective order or waive compliance with this Article. The Subject Party shall promptly respond to such request in writing by either authorizing the disclosure or advising of its election to seek such a protective order, or, if such Subject Party fails to respond promptly and in any event with five (5) Business Days following the notice of requirement, such disclosure shall be deemed approved. The confidentiality obligations set forth in this Article 5.8 shall survive the termination or expiration of this Agreement.
6.9 This Agreement shall remain in effect until terminated in writing by OKX in accordance with this Article. OKX may terminate this Agreement, without cause, by publishing an announcement on the OKX Platform or serving prior notice in writing to the other Party on the OKX Platform. If applicable, OKX will pay the Non-scheduled Early Termination Amount to your Account within a reasonable period of time upon the termination date.
6.10 This Agreement together with the transaction-specific details provided to you or shown on the OKX Platform contain the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, among the Parties with respect thereto.
6.11 Any notices, consents or other communications required or permitted to be sent or given hereunder by either of the Parties shall in every case be in writing and in the English language and shall be deemed properly served by OKX if provided on the OKX Platform. The date of service of such notice shall be the date such notice is sent by email, upon publication and / or upon successful transmission. The terms and conditions 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.
6.12 In no event shall OKX or Customer be held liable to the other Party or any third party for damages or for any loss of any kind caused, directly or indirectly, by government restrictions, war, terrorist acts, insurrection, riots, fires, flooding, strikes, failure of utility services, adverse weather or other events of like nature, including but not limited to earthquakes, hurricanes and tornadoes, or other conditions beyond the relevant Party’s control, other than as specified herein. In such situations, Article 3.4, above, shall apply.
6.13 Each Party acknowledges that, and has entered into this Agreement and will enter into each transaction hereunder in consideration of and in reliance upon the fact that, all transactions hereunder (including any subscription or purchase transaction) constitute a single business and contractual relationship and are made in consideration of each other. Accordingly, each party agrees (a) to perform all of its obligations in respect of each transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all transactions hereunder, and (b) that payments, deliveries and other transfers made by either of them in respect of any transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other transactions hereunder.
6.14 By entering into this Agreement, the Customer agrees to, and hereby does, irrevocably waive any right it may have to bring claims as a plaintiff or class member in any purported class or representative action against OKX or its Affiliates.
6.15 None of the contents of this Agreement shall be interpreted as making one Party to this Agreement the agent of the other Party or as there being an agency relationship or partnership between the Parties.
6.16 In the event of any discrepancy between this Agreement in English and that in any foreign language, the English version shall prevail.
Exhibit
Risk Disclosure Statement and Disclaimer
Risk Factors Relating to the Product
The risk of loss related to this Product is similar to or greater than the risk relating to an investment in the Underlying. Therefore, the Customer could lose the total capital invested if the value of the Underlying falls to zero on the Settlement Date as specified in the Product Terms.
Risks associated to Digital Currencies
It is to be noted that the Underlying is Digital Currency, including but not limited to Bitcoin (BTC), Ethereum (ETH), Tether (USDT), USD Coin (USDC), Solana (SOL), among other Digital Currencies. This means that the performance of the Underlying and the Product is affected by the performance of the Digital Currencies.
Risks relating to the volatility and limited trading hours of Digital Currencies
The value of Digital Currencies may change significantly over the course of a day. Changes and advances in technology, fraud, theft and cyber-attacks and regulatory changes, among others, may increase volatility significantly, increasing the risk of losses in respect of Product linked to one or more Digital Currencies. In addition, the market for Digital Currencies is still at an early stage and the number of market participants is limited and may stay limited over the lifetime of the Product. A small number of market participants could trigger potentially significant (and adverse) price swings and illiquidity, which events could have a material adverse effect on the return on and value of the Product and their liquidity.
Customer should further note that the trading hours of Digital Currencies typically exceed the trading hours of the Product. Customer therefore cannot invest in or divest the Product and react to price movements or volatility of the Digital Currencies outside the Product’s trading hours.
Risks relating to the illiquidity of Digital Currencies
Digital Currencies may be or may become illiquid over the lifetime of the Product. Illiquidity of the Digital Currency may (a) negatively impact the Issuer’s ability to provide a secondary market for the Product; (b) result in a temporary or even indefinite increase or decrease in the price of the Product or its Underlying(s); (c) result in the postponement of a relevant valuation date (and any corresponding payment date); and (d) result in the (early) termination of the Product which could result in a loss to Customer in relation to the Product.
Access to Digital Currencies
Customer though the Product does not have direct access to the Digital Currencies or all information relating to the Digital Currencies (such as, among other things, information about storage, Service Provider(s) used for trading the Digital Currencies or the "private keys" required for accessing and transferring the Digital Currencies) and cannot transfer the Digital Currencies related to the Product to a private storage facility. This may make it difficult for the Customer to hedge its exposure resulting from the Product.
To the extent that the Customer holds Digital Currencies, the Customer understands and accepts that if its "private key" required to access its Digital Currencies and to dispose of its Digital Currencies were lost or stolen, the allocated Digital Currencies associated with the Customer's Account (address) would be unrecoverable and would be permanently lost. The Customer will have no recourse to seek any refunds, recovery or replacements from the Issuer in the event that Digital Currencies are lost, hacked, destroyed or stolen. Also, any errors or malfunctions caused by or otherwise related to the digital wallet chosen by the Customer to receive and store Digital Currencies, including the Customer's own failure to properly maintain or use such digital wallet, may also result in the loss of such Digital Currencies.
Trust in Digital Currencies
Digital Currencies only exist virtually and have no physical equivalent. Establishing a value for Digital Currencies is or may become difficult as the value depends on the expectation and trust that the relevant Digital Currencies have a future use. Among other things, persistent high volatility, changes and advances in technology, fraud, theft and cyber-attacks and regulatory changes may prevent the establishment of Digital Currencies for future use and potentially render the Digital Currencies worthless.
Risks relating to Technology
There is a risk that the source code or protocol on which a Digital Currency is based may contain errors. Any such error could threaten the integrity and security of the relevant Digital Currency and the corresponding network. For example, the source code of Bitcoin or Ethereum is public and can be downloaded and inspected by anyone. Nevertheless, there could be an error in the source code that has not yet been found and rectified, or such an error could be exploited for as long as it has not been removed. There is the additional risk of an error that cannot be rectified. These risks could materially weaken the reputation of a Digital Currency, which could have an adverse effect on its market price.
Various Digital Currencies, such as Bitcoin and Ethereum, were created in the form of open source software, i.e. as a programme that is freely available to everyone. The source code or protocol on which the Digital Currencies are based is publicly accessible and constantly being developed. The further development and acceptance of the protocol depends on a range of factors. The development of Digital Currencies could be hindered or delayed if disagreements were to arise between the participants, developers and members of the network.
New and improved versions of the source code must be confirmed by a majority of the members of the network in order to update the source code version. In the event that a majority of the network cannot be reached for the purpose of updating the source code, this could mean that urgent updates or improvements in the source code are implemented only partially or not at all. If the development of the source code is hindered or delayed, this may have an adverse effect on the value of the Digital Currency. Furthermore, there is a risk that one or more members of the network could control a majority of the network. In this case, the majority could impose changes in the source code that have an adverse effect on the market value of the Digital Currency concerned. For example, such changes could affect the verification procedure, the generation of private keys (which are necessary for the purpose of executing transactions) or the subsequent deletion of transactions. Such "51% attacks" could result in a general loss of confidence in the Digital Currency and the possible total cessation of trading. It may be difficult to keep track of these scenarios in some cases and they could permanently upset the status of the participants in the network. This would cause a loss of reputation and material adverse effects on the market value of the Digital Currency concerned. But even if such adverse scenarios are not realised, control of the majority of a network could have the same adverse effects for the market value of the Digital Currency. The risk of such 51% attacks is not limited to enforcing changes to the source code, but represents a general risk. Thus, a person or group of persons who make up the majority of the computing power of the network may manipulate transactions within the network (without changing the source code). The risk theoretically exists below the 50% threshold. The risk of such attacks increases with the observed pooling of persons into so-called mining pools.
There is a risk that source codes or protocols could be developed further and for various reasons this could result in the Digital Currency splitting into more than one protocol (known as a "hard fork"). A hard fork is a change in the consensus rules such that computers running the old code no longer produce transactions recognized as valid by computers running the new code. A hard fork may be uncontentious, contentious, or a spin-off. An uncontentious hard fork can be viewed as a software upgrade that all (or nearly all) users agree is beneficial, such that only one network and one set of rules results from the change. In a contentious hard fork, disagreement amongst users may result in two competing incompatible networks that vie for the same brand.
In the context of a hard or soft fork, or other process that result in a division or split of a Digital Currency into multiple, possibly non-fungible, assets, it could be that trading platforms on which Digital Currencies are traded will temporarily suspend the ability to deposit or withdraw, or buy and sell, the relevant Digital Currency on that trading platform, until the risks and consequences that may result from the hard fork (such as replay attacks or network instability) have been definitively assessed. This could take several days in some circumstances, but such timeframe is not generally predictable. During any such temporary suspension, there is a risk that the market maker will not quote any bid and offer prices for the Product.
Furthermore, in the event of a hard or soft fork, or other process that result in a division or split of a Digital Currency into multiple, possibly non-fungible, assets is expected, the Issuer has the discretion to take appropriate action to align the effects of such process (see also below under "Risks in relation to Digital Currency Adjustment Events"). There exists no right to compensation or ownership to Customer of any of such assets created in connection with or as a result of a fork. There is a further risk that in the case of a publicly accessible protocol, developers will not have the incentive of being remunerated for the further development of the source code. This could mean that the ongoing qualitative further development of the source code is hindered or delayed. If the source code is not developed further, however, this could have an adverse effect on the value of the Digital Currency concerned.
Customer should note that any of the events or processes as described above (including but not limited to hard or soft fork) may constitute a Digital Currency Adjustment Event and may result in an adjustment of the Product and/or the (early) termination of the Product which could result in a loss to Customer in relation to the Product.
Risk in relation to Digital Currency Adjustment Events
As a result of one or more Digital Currency Adjustment Events (including, but not limited to, a material change in the method of calculating the Digital Currency, a material change in the concept of the Digital Currency (such as a division or split of the Digital Currency into multiple assets) or the introduction of a tax on the Digital Currency, or otherwise as defined in any documentation), trading venues on which Digital Currencies are traded may suspend (temporarily or indefinitely) the ability to trade Digital Currencies or a particular version of a Digital Currency (where there are multiple versions of a Digital Currency due to a process that results in a division or split of a Digital Currency). Consequently, the Customer may (i) not get exposure (indefinitely) to all versions of a Digital Currency and forego the value of one or more versions, or (ii) may get exposure to a version on a delayed basis (in which case that version might have a significant change in its value), or (iii) may not benefit or be negatively affected by a Digital Currency Adjustment Event. Following a Digital Currency Adjustment Event, the Issuer may make (but has no obligation to make) an adjustment to the Product. In addition, Digital Currency Adjustment Events may result in instability of the relevant Digital Currency or a particular version of the Digital Currency and Digital Currency Adjustment Events or the threat of a potential Digital Currency Adjustment Events may prevent the establishment of the relevant Digital Currency. Digital Currency Adjustment Events may negatively impact the Issuer’s ability to provide a secondary market for a Product, may result in an increased price (potentially indefinitely) for a Product or result in the (early) redemption of the Product which could result in a loss to Customer in relation to the Product.
Risks relating to the occurrence of Additional Disruption Events
Without limiting the generality of the definition of Additional Disruption Event in the Agreement relating to the Product, an Additional Disruption Event may, amongst others, occur if the Calculation Agent determines that it has become illegal to hold, acquire or dispose of any of the Digital Currencies or if the Issuer and/or any hedging entity incurs significant losses related to hedging transactions with the Digital Currencies in particular as a result of fraud, theft and cyber-attacks relating to the custody account or the network of the Issuer and/or any hedging party and/or a relevant Service Provider. In this respect, Customer should note that the Digital Currencies held in a hedging entity’s custody accounts are not segregated on a per product basis. Any loss relating to a hedging entity’s custody account or network (please also refer to the section "Risks relating to fraud, theft and cyber-attacks" below) may trigger an Additional Disruption Event in respect of the Product, as determined by the Calculation Agent in its sole discretion.
Customer should note that following the occurrence of an Additional Disruption Event the Issuer may cancel, revoke, redeem, terminate or liquidate the Product and that they may receive only the Non-scheduled Early Termination Amount. Customer should note that the Non-scheduled Early Termination Amount may be significantly lower than the issue price or may be even zero and Customer may lose some or all of its investment.
Risks relating to fraud, theft and cyber-attacks
The particular characteristics of Digital Currencies (e.g., that they only exist virtually on a computer network, transactions in the Digital Currency may not be reversible and may be largely anonymous) make it an attractive target for fraud, theft and cyber-attacks. Customers investing in a Digital Currency are exposed to fraud, theft and cyber-attack risks, including: (i) any high profile losses as a result of such events may raise scepticism over the long-term future of Digital Currencies and may prevent the establishment of the Digital Currencies (or that particular Digital Currency) and may increase the volatility and illiquidity of the relevant Digital Currency; and (ii) any loss of the Issuer resulting from fraud, theft and cyber-attacks relating to Service Provider(s) may be borne by the Customer. Customers investing in a Digital Currency are exposed to such risks and the return on the Product (or the secondary market price) could be negatively affected by any such activities.
Regulatory Risks
Digital Currencies usually do not have a function as and/or the full characteristics of a legal tender and are usually not supervised by any authority or institution such as a central bank. Consequently, there is no authority or institution which may intervene in the market of a Digital Currency to stabilise the value or prevent, mitigate or counteract irrational price developments.
Digital Currencies have been in existence for a relatively short time only and various regulatory bodies globally have or are in the process of taking a view on required regulatory actions relating to Digital Currencies and related products (e.g. regulation concerning licensing, money laundering, taxation, consumer protection, publication requirements or capital flows, etc.). The regulatory status of Digital Currencies and blockchain technology is still unclear or unsettled in many jurisdictions. It is difficult to predict how or whether regulatory authorities may apply existing regulation with respect to such technology and its applications, including specifically (but without limitation to) Digital Currencies. It is likewise difficult to predict how or whether any legislative or regulatory authorities may implement changes to law and regulation affecting blockchain technology and its applications, including Digital Currencies.
Any forthcoming regulatory actions may result in the illegality of Digital Currencies (and products relating to such Digital Currencies) or the implementation of controls relating to the trading (and therefore liquidity) of Digital Currencies. Forthcoming regulatory actions may also restrict the availability of markets and/or market participants permitted to engage in transactions related to Digital Currencies. Such events could result in an adjustment of the Product or even in the (early) termination of the Product which could result in a loss to Customer in relation to the Product. In addition, control mechanisms may increase transaction fees in Digital Currencies significantly (and therefore impact the price of the Product) that may have a negative impact on the return of the Product (and the secondary market price of the Product). Customer should ensure that investing in the Product complies with their local regulation.
Connected Party Risks
Depending on the design of the relevant Digital Currencies (centralized, decentralized), certain connected parties (management, developers, miners, etc., as applicable) may pursue a strategy which may negatively impact the value, tradability, liquidity and security of the Digital Currencies. Such events could result in an adjustment or even the (early) termination of the Product which could result in a loss to Customer in relation to the Product and may have a negative impact on the return of the Product (and the secondary market price of the Product).
Risks relating to Public Data
Customer should be aware that any purchase and sale of Digital Currencies in connection with Product is stored in a ledger (blockchain) and may be visible to the public. Such ledger is neither a property of nor under control of the Issuer or the hedging entity or any other party related to these Product. Information available on the ledger may be exploited or misused in, as of today, unforeseen ways.
Risks relating to the Service Providers
The Service Providers used by the Issuer (including hedging entity for trading and holding/storing the Digital Currencies), (i) may cease to exist, (ii) may be exposed to fraud, theft and cyber-attacks (see the section “Risks relating to fraud, theft and cyber-attacks” above) or (iii) may need to comply with regulatory requirements and the Issuer’s internal compliance requirements which may prevent the Issuer or the hedging entity to use a particular reference source or Service Provider for trading the Digital Currencies. This may potentially impact the price of a Product (e.g. due to a change in the trading commission payable to the Service Provider(s)). The Issuer (or any of its hedging entities) may not be able to replace a Service Provider, which may result in early termination of the Product.
Additional Risk Factors
Customer should ensure that its fully understand the nature of this Product and the extent of its exposure to risks and they should consider the suitability of this Product as an investment in the light of its own circumstances and financial condition. The Product may involve a high degree of risk, including the potential risk of expiring worthless. Customer should be prepared in certain circumstances to sustain a total loss of the capital invested to purchase this Product. Customer shall consider the following important risk factors and see this “Risk Disclosure Statement” for details.
This is a structured product involving derivative components. Customer should make sure that it has or its advisors have verified that this Product is suitable for the portfolio of the relevant Customer, taking into account the Customer’s risk tolerance, financial situation, investment experience and investment objectives. The terms and conditions of the Product may be subject to adjustments during the lifetime of the Product. Customer whose usual currency is not the currency in which the Product is redeemed should be aware of its possible currency risk. The value of the Product may not correlate with the value of the Underlying.
Market Risks
The general market performance of Product is dependent, in particular, on the development of the capital markets which, for their part, are influenced by the general global economic situation as well as by the economic and political framework conditions in the respective countries (so-called market risk). Changes to market prices such as interest rates, commodity prices or corresponding volatilities may have a negative effect on the valuation of the Underlying(s) or the Product. There is also the risk of market disruptions (such as trading or market interruptions or discontinuation of trading) or other unforeseeable occurrences concerning the respective Underlying and/ or their exchanges or markets taking place during the term or upon maturity of the Product. Such occurrences can have an effect on the time of redemption and/or on the value of the Product.
No Other Payment
This Product does not confer any claim to receive rights and/or payments of the Underlying, unless explicitly stated herein, and therefore, without prejudice to any coupon payments provided for in any Agreement or documentation, does not yield any current income. This means that potential losses in value of the Product cannot be compensated by other income.
Credit Risk of Issuer
Customer shall bear the credit risk of the Issuer of the Product. The value of the Product is dependent not only on the Underlying, but also on the creditworthiness of the Issuer, which may change over the term of the Product.
The Product constitutes unsubordinated and unsecured obligations of the Issuer which rank pari passu with each and all other current and future unsubordinated and unsecured obligations of the Issuer. The insolvency of the Issuer may lead to a partial or total loss of the invested capital.
Liquidity Risk
One or, if applicable, more of the Underlying might be or become illiquid over the lifetime of the Product. llliquidity of an Underlying might impact prices of the Product and/or extend the time period for buying and/or selling the Underlying(s) respective to acquiring, unwinding or disposing of the hedging transaction(s) or asset(s) or to realise, recover or redeem the proceeds of such hedging transaction(s) or asset(s) which might result in a postponed redemption or delivery and/ or a modified redemption amount, as reasonably determined by the Calculation Agent.
Conflict of Interests
The Issuer and/or any third party appointed by it, as the case may be, may from time to time, as principal or agent, have positions in, or may buy or sell, or make a market as well as be active on both sides of the market at the same time in any currencies or other assets underlying the Product(s) to which this document relates. The Issuer’s and/or the appointed third party’s trading and/or hedging activities related to this transaction may have an impact on the price of the Underlying and may affect the likelihood that any relevant threshold (e.g. a Level/Price), if any, is reached.
Remunerations to Third Parties
Depending on the circumstances the Issuer may sell this Product to financial institutions or intermediaries at a discount to the issue price or reimburse a certain amount to such financial institutions or intermediaries (reference is made to section “General Notes and Disclaimer” herein).
In addition, for certain services rendered by distribution partners and to increase quality and services relating to the Product, the Issuer may from time to time pay fees to such third parties.
Payment of a Coupon
If the Product stipulates the payment of a coupon, the Customer is only entitled to receive the respective coupon payment, if he has purchased/subscribed/not sold the Product at the Settlement Time.
No Offer
The Agreement is primarily provided for information purposes and does not constitute a recommendation, an offer or a solicitation of an offer to buy financial products.
No Representation
The Issuer and any third party appointed by them make no representation or warranty relating to any information herein which is derived from independent sources.
No Advice
This Agreement should not be construed as investment, financial, strategic, legal, regulatory, accounting or tax advice. It does not take into account the particular investment objectives, financial situation or needs of any individual Customer. Certain transactions, including those involving futures, options and high yield product or securities, give rise to substantial risk and are not suitable for certain Customers. Accordingly, Customer should consider whether the Product described herein is suitable for its particular circumstances and should consult its own accounting, tax, investment and legal advisors before investing. Issuer is not acting as an advisor or fiduciary. Issuer does not accept any responsibility to update any opinions or other information contained in this Agreement.
No Prospectus
This Agreement is not, and under no circumstances is to be construed as (i) a prospectus, (ii) an advertisement which is used to market or promote a prospectus, and/or (iii) an advertisement where this document is used for the purposes of marketing.
No Bank Deposits
The Product is not any bank deposit insured or guaranteed by any financial services compensation scheme or any other governmental agency or deposit protection fund run by public, private or community banks.
General Notes and Disclaimers
This Agreement and the Product thereof do not constitute any collective investment schemes in the meaning of any applicable laws and regulations. Accordingly, Customer is exposed to the credit risk of the Issuer and the guarantor (if any). Accordingly, the value of the Product is dependent not only on the development of the Underlying Assets but, among other factors, also the creditworthiness of the Issuer and the guarantor (if any) which may vary over the term of the Product.
This Agreement has been prepared by the Issuer for information purposes only. It is not intended as an offer or solicitation of the purchase or sale of any securities, funds, structured products or any other structured investment products, the purchase of which involve derivatives and a high degree of risk factors that may not be suitable for Customer. Such risks include the risk of adverse or unanticipated market developments, issuer credit quality risk, risk of counterparty or issuer default, risk of lack of uniform standard pricing, risk of adverse events involving any underlying reference obligations, entity or other measure, risk of high volatility, and risk of illiquidity/little to no secondary market. In certain transactions, Customer may lose its entire investment, i.e., incur an unlimited loss.
This Agreement may only be distributed or circulated in countries where its distribution is legally permitted and may not be distributed in the US or to US residents. This was approved by Issuer. Issuer is incorporated under the laws of the Republic of Seychelles under company registration 202706. Issuer’s registered address is located at Suite 202, 2nd Floor, Eden Plaza, Eden Island, Victoria, Mahe, Seychelles.