BITGO EUROPE APS - MASTER PURCHASE AGREEMENT

BITGO EUROPE APS 

MASTER PURCHASE AGREEMENT

 

BitGo Europe ApS, a Danish limited company with company no. 45058239 ("BitGo") and “You” (and, together with BitGo, the "Parties" and each a "Party") are entering into this Master Purchase Agreement (“Agreement”). This Agreement is made as of the later date of the signatures below (the “Effective Date”), that sets forth the terms and conditions under which BitGo and Counterparty may purchase from and sell virtual assets  to each other, each for its own benefit and account, as of the Effective Date, including the provision of Price Quotes by BitGo to Counterparty, Counterparty’s submission of Trade Requests, entry into Transactions and any related services provided by BitGo in connection therewith (“Trading Services”).

 

1. Introduction

Each Party has a general desire to consider entering spot virtual asset purchase and sale transactions with the other Party (each a “Transaction”). The specific terms of any such Transaction will separately be agreed directly between the Parties via electronic or verbal communications on instant messaging services such as Slack, Telegram, Whatsapp or other agreed methods of electronic communications between Counterparty and BitGo (“Agreed Communication Channel”).

Please read this Agreement carefully and retain it for future reference.

2. Relationship of Parties

The Parties acknowledge and agree that when entering Transactions with each other, each Party will be transacting for its own account, in a principal capacity, and in an arm’s-length role in relation to each other. Neither Party will be providing any service to the other Party or to any other person or entity. Each Party will enter Transactions solely for its own respective benefit and not for the purpose of benefiting the other Party, such as by providing a service to the other Party. The Parties will not act as each other’s agent, fiduciary, or advisor and shall have no duties to each other, except to settle any agreed Transactions, and as otherwise specified in a written agreement signed by both Parties. 

BitGo may contemporaneously engage in offsetting Transaction(s) with a third party(ies) (a “Riskless Principal Transaction’), and when engaging in such Riskless Principal Transactions, BitGo is not obligated to identify the ultimate source of liquidity (each a “Liquidity Provider”).  Rather, Counterparty will face BitGo as the counterparty to every Transaction. Further BitGo is not obligated to price a Transaction equal to a corresponding Riskless Principal Transaction.  For more information, please read the Principal Trading Disclosure as provided as an attachment to this Agreement.   

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. 

3. Eligibility for Trading Services           

Counterparty   further   attests   to   a   level   of   knowledge,   experience,   and   trading sophistication   that   is appropriate to engage in the Trading Services, and further, assumes the risk that is inherent with such activity.

4. Pre-Funding

To submit and execute a Trade Request, Counterparty must transfer to  BitGo the full amount of virtual assets or cash to cover the total value of the Trade Request plus any applicable fees before submitting a Trade Request (“Prefunded Assets”). The delivery will be complete once (a) in the case of virtual assets, the transaction is verified by the relevant number of confirmations from the blockchain for the applicable virtual assets as specified by the Counterparty and the assets have been received into BitGo’s designated wallet or (b) in the case of cash, the cash has been received into BitGo’s bank account. BitGo may require the Counterparty to validate BitGo’s designated wallet address by conducting a test transfer of virtual assets prior to the transfer of the Prefunded Assets. 

Counterparty acknowledges and agrees that upon the transfer, all right, title and interest in and to the Prefunded Assets will pass to BitGo. This means that (a) the Prefunded Assets will not be held by BitGo for or on behalf of the Counterparty; and (b) BitGo can deal with the Prefunded Assets as its own property. 

5. Trade Requests 

Counterparty may provide BitGo with a request to purchase or sell a specified virtual asset (a “Trade Request”) via the Agreed Communication Channel in the manner as directed by BitGo from time to time. BitGo shall have no obligation to accept any Trade Request and may do so in its sole discretion. Acceptance by BitGo of any Trade Request which does not comply with all of the requirements set out in this Section 5 shall not obligate BitGo to accept any subsequent non-conforming Trade Request. Upon receipt of a Trade Request, BitGo may provide Counterparty a price (which may be denominated in a fiat currency or another virtual asset) at which it is willing to sell or purchase (as the case may be) a specified quantity of such virtual asset (a “Price Quote”). Counterparty must immediately confirm acceptance of the Price Quote in writing (“Confirmation of Price Quote”), otherwise the Price Quote will be deemed to be rejected and expire and no transaction may be effective in accordance with the Price Quote. If Counterparty confirms acceptance of the Price Quote, a transaction will be deemed to have been executed and the terms set forth in the Price Quote shall become binding, only at the time BitGo confirms the execution (a “Confirmation of Execution”) via electronic and/or telephonic communication. If BitGo does not provide a Confirmation of Execution, the Price Quote shall be deemed to be rejected and expire and no transaction may be effected in accordance with such Price Quote. Following the Confirmation of Execution, BitGo shall send Counterparty a trade confirmation in accordance with Sections 6 and 10 of the Agreement. Counterparty agrees that BitGo may, in its sole discretion, accept statements similar or analogous to the following as indication by Counterparty of agreement to the terms of a proposed Transaction: “confirmed”, “ok”, “done,” “I buy,” “bought,” “I sell,” or “sold”.

Unless explicitly stated otherwise, prices communicated electronically, verbally, or otherwise by BitGo do not constitute offers to trade but rather are indications of interest subject to further review by BitGo. Your Trade Request becomes a binding offer to execute a transaction upon your Confirmation of Price Quote. Due to the speed of the market and execution delays the price available for execution of any Transaction with you may change between the time of submission of your Confirmation of Price Quote and the time that you receive a response to your Trade Request, even if the lapse of time is small. This may result in rejection of all or part of your Trade Request, including in cases where the market has moved favorably to you, even though we may choose to accept Trade Requests where the market has moved favorably to us. If we determine to execute, the costs or benefits of any price changes may, in our discretion, be retained by us.

 

6. Transaction Settlement

If BitGo and Counterparty have agreed to terms (size, price, and virtual asset) through the Agreed Communication Channel, the Transaction is binding and final (such Transaction, a “Completed Order” and such date, a “Trade Date”) unless both Parties agree in writing otherwise.  

 

On each Trade Date, BitGo will provide a report through email communication that identifies a summary of all Completed Orders and the total net amount, in either virtual assets or cash, required to settle such Completed Orders (referred to herein as the “Settlement Summary”). As soon as reasonably practicable after delivery of the Settlement Summary and following settlement between BitGo and the relevant Liquidity Provider, BitGo shall initiate the transfer of the virtual assets or cash, as applicable, to Counterparty’s designated  wallet or bank account, as applicable. The delivery will be complete once (a) in the case of virtual assets, the transaction is verified by the relevant number of confirmations from the blockchain for the applicable virtual asset as specified in the Confirmation of Execution and the assets have been received into the Counterparty’s designated wallet or (b) in the case of cash, the cash has been received into the Counterparty’s designated bank account. Once BitGo’s delivery is complete, the Transaction is finally and irrevocably settled. 

Counterparty acknowledges and agrees that (a) any bank account or wallet that has not been pre-approved by BitGo may delay settlement; and (b) it is solely responsible for losses if it provides the wrong destination address to BitGo.

7. Use of the Trading Services.

Counterparty acknowledges that Transactions will be executed at the price agreed to, which may be different from the price at which the virtual asset is trading in other markets or with other Counterparties when the Transaction is completed.

Regardless of any other provision of this Agreement, BitGo has the right to suspend or terminate (at any time, with or without cause or prior notice) all or any part of the Trading Services, or Counterparty’s access thereto, for any reason, including but not limited to, changing the features or functionality of the Trading Services, or changing the limits on the trading Counterparty may conduct through the Trading Services, all without any liability to Counterparty. Counterparty understands it can have no expectation of any use or continued use of the Trading Services.

8.  Reversals; Cancellations

Counterparty cannot cancel, reverse, or change any Transactions, including editing or deleting any instant messages containing Trade Requests or Confirmations of Price Quotes 

9. Commissions and Fees

Except as provided for herein or as expressly agreed upon by the Parties, Counterparty shall not pay any commissions and transaction, processing and other fees, including federal, state, and local taxes, to BitGo.

10.  Statements and Receipts 

BitGo will electronically provide you with confirmation of your trading activity by providing order confirmations and transaction receipts ("Trading Activity Confirmations"). BitGo may also electronically provide you with periodic statements that contain information regarding your trading activity (“Statements").

11.  Errors 

(a) Errors may sometimes occur and such errors may impact the result of a given transaction. BitGo reserves the right to reasonably determine whether an incorrect price results in an erroneous transaction. Erroneous transactions include but are not limited to (i) Transaction prices that are significantly different than prevailing market prices at the time of the Transaction; and (ii) Transaction prices resulting from executions where BitGo’s bid was greater than its offer at the same Transaction time. BitGo shall notify the Counterparty within twenty-four (24) hours from the time of the corresponding Trading Activity Confirmation if an erroneous transaction is identified. BitGo, within its sole discretion, may reasonably declare the transaction null and void or both Parties may agree to modify the transaction.

(b) If you have any questions, concerns, feedback or complaints, including regarding any error that you believe has been made in transaction processing, any Trading Activity Confirmations, your Statement, or other record of transaction activity that we provide, contact us immediately via email at bp.liquidity@bitgo.com. Should a Counterparty identify an erroneous transaction, Counterparty must notify BitGo of such error within twenty-four (24) hours from the time of the corresponding Trading Activity Confirmation. We will promptly investigate and attempt to resolve your claim through our support team within thirty (30) calendar days unless we inform you otherwise. BitGo, within its sole discretion, may determine whether an erroneous transaction occurred and may declare the transaction null and void or both Parties may agree to modify the transaction.

(c) If you believe that there has been unauthorized access, please contact us immediately at support@bitgo.com.

12.  Confidentiality; Information Handling

(a) BitGo personnel may have access to, use and provide you and other counterparties with information on an anonymous and aggregated basis, including but not limited to, your orders (i.e., orders executed in full or part, cancelled, or expired), indications of interest, quotes, positions, trade and other data and analytics (collectively, “Anonymous and Aggregated Data”). This Anonymous and Aggregated Data may be used for market color reports, analytical tools, risk management strategies for market making and liquidity provision and other BitGo products and services. The nature of any Anonymous and Aggregated Data provided to you may differ from that provided to other counterparties in terms of quantity, scope, methodology or otherwise and may be changed from time to time without notice to you. BitGo maintains a “need to know” standard, which provides that access to your Counterparty-specific information is limited to those employees who have a “need to know” such information to perform their duties and to carry out the purpose for which the information is provided.

(b) As used in this Agreement, “Confidential Information” means any non-public, confidential or proprietary information of a party (“Discloser”) including, without limitation information relating to Discloser’s business operations or business relationships, financial information, pricing information, business plans, customer lists, data, records, reports, trade secrets, software, formulas, inventions, techniques, and strategies. The terms of this Agreement are the Confidential Information of each party. A party receiving Confidential Information of Discloser (“Recipient”) will not disclose it to any third party without the prior written consent of the Discloser, except as provided below or to such party’s officers, directors, agents, employees, consultants, contractors and professional advisors who need to know the Confidential Information and who are informed of, and who agree to be or are otherwise bound by obligations of confidentiality no less restrictive than, the obligations set forth herein. Recipient will protect such Confidential Information from unauthorized access, use and disclosure. Recipient shall not use Discloser’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement. The obligations herein shall not apply to any (i) information that is or becomes generally publicly available through no fault of the recipient, (ii) information that the recipient obtains from a third party (other than in connection with this Agreement) that, to recipient's best knowledge, is not bound by a confidentiality agreement prohibiting such disclosure; (iii) information that is independently developed or acquired by the recipient without the use of or reference to Confidential Information of Discloser.

(c) Notwithstanding the foregoing, Recipient may disclose Confidential Information of Discloser to the extent required under applicable laws; provided, however, Recipient shall first notify Discloser (to the extent legally permissible) and shall afford Discloser a reasonable opportunity to seek a protective order or other confidential treatment. For the purposes of this Agreement, no affiliate of BitGo shall be considered a third party; provided that BitGo causes such entity to undertake the obligations in this Section.

(d) “Confidential Information” includes all documents and other tangible objects containing or representing Confidential Information and all copies or extracts thereof or notes derived therefrom that are in the possession or control of Recipient and all of the foregoing shall be and remain the property of the Discloser. At Discloser’s request, Recipient shall return or destroy all Confidential Information; provided, however, Recipient may retain one copy of Confidential Information (i) if required by law or regulation, or (ii) pursuant to a bona fide and consistently applied document retention policy; provided, further, that in either case, any Confidential Information so retained shall remain subject to the confidentiality obligations of this Agreement.

13.  Prohibited Use

We reserve the right to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions program, legal process or governmental request. You may not use your access to the Trading Services engage in any of the following activities ("Prohibited Use"):

▪   No Spoofing: Any Order that is not intended to be completed or is otherwise intended to abuse, manipulate, mislead or defraud other market participants, to delay or disrupt the Trading Services, or to disrupt the orderly conduct of trading or the fair execution of transactions in the virtual assets  market.

▪  Unlawful Activity: Activity which would violate, or assist in violation of any applicable federal, state or international law, statute, ordinance, or regulation, or a sanctions program administered in a country that BitGo or its affiliates operate, including the European Union and/or the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC"), or which would involve proceeds of any unlawful activity (including unlawful internet gambling) or the publishing, distribution, or dissemination of any unlawful material or information.

▪   Abusive Activity: Actions which impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material that contains viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to computer systems or networks connected to the BitGo website or online platform, through password mining or any other means; use information of another party to access or use the BitGo online platform or website, or transfer your access or rights to a third party, unless by operation of law or with the express permission of BitGo.

▪   Abuse Of Other Users: Interfere with another individual's or entity's access to or use of any Trading Services; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information from the BitGo website or online platform about others, including email addresses, without proper consent.

▪   Fraud: Activity which operates to defraud BitGo, BitGo users, or any other person; provide any false, inaccurate, or misleading information to BitGo.

14.  Virtual Asset Software Protocols

You agree and acknowledge that BitGo does not own or control the underlying software protocols that govern operation of the virtual assets that are supported by the Trading Services. These software protocols are open source, meaning that anyone can use, copy, modify, and distribute them. You agree and acknowledge that (i) BitGo is not responsible for operation of the underlying software protocols that govern the operation of the virtual assets and (ii) BitGo is not responsible for and cannot guarantee the ongoing functionality, security, or availability of the virtual assets or the virtual assets marketplace or Trading Venues. You further agree and acknowledge that the underlying software protocols governing the virtual assets may be subject to sudden changes in operating rules due to the actions of third parties ("Forks"), and that Forks may have a material effect on the value, function, character or name of the virtual assets, or available for purchase or sale using the Trading Services. In the event of a Fork, BitGo shall have the right, in its sole discretion and without prior notice, to temporarily suspend the Trading Services, and may determine it will not support any particular Fork in the underlying software protocols. BitGo will notify you of any modifications to its Trading Services in connection with a Fork by posting on the BitGo website, online platform or emailing you. BitGo is not responsible for, and you agree we are not liable for, any lost profits, trading losses or any other losses or damages that result from a change in the underlying software protocols of the virtual assets or BitGo’s determination to support or not support any modified software protocol.

15.  Provision of Market Data 

We may convey to you by telephone, electronic, or other means the last sale transaction data, bid and asked quotations, news reports, analysts’ reports or research, or other information relating to virtual assets and the virtual assets markets (collectively referred to in this Section as "market data"). We may charge a fee for providing these market data. We provide market data only for your internal use; you may not directly or indirectly copy, reproduce, sell, lease, market, retransmit, communicate, distribute or otherwise make available any portion, derivation or revision of market data in any medium, print or electronic, in any manner unless you have entered into a written agreement with the appropriate market data provider or have the express written consent of BitGo.

However, the accuracy, completeness, timeliness, suitability for use, or correct sequencing of the market data is not guaranteed either by us or by the third-party market data providers and may include inaccurate, erroneous, incomplete or out-of-date information. In an effort to continue to provide you with complete and accurate information, information may be changed or updated from time to time without notice. Accordingly, you should verify all information before relying on it, and all decisions based on information that you obtain from or through us are your sole responsibility and we shall have no liability for such decisions. Furthermore, neither we nor the third-party market data providers will be liable for interruptions in the availability of market data or your access to market data.

The market data are provided "as is" and on an "as available" basis. There is no warranty of any kind, express or implied, regarding the market data, including any warranty of accuracy, completeness or timeliness. We are not responsible for, and you agree not to hold us liable for, lost profits, trading losses, or any other damages resulting from market data or your use thereof. In any case, our liability arising from any legal claim (whether in contract, tort, or otherwise) relating to the market data will not exceed the amount you have paid for use of the Trading Services. You agree that we may correct any execution reported to you that was based on inaccurate market data provided to us by a virtual asset  trading vendor, market center, or other providers.

16.  Disclaimer of Warranties

THE TRADING SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BITGO SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. BITGO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE BITGO WEBSITE, ONLINE PLATFORM, ANY PART OF THE BITGO TRADING SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE.

17. Limitations of Liability

BITGO WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY EXPENSES, LOSSES, DAMAGES, LIABILITIES, DEMANDS, CHARGES, AND CLAIMS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING ANY LEGAL EXPENSES AND COSTS OR EXPENSES RELATING TO INVESTIGATING OR DEFENDING ANY DEMANDS, CHARGES, AND CLAIMS) (COLLECTIVELY, "LOSSES") IN CONNECTION WITH OR RELATED TO THE TRADING SERVICES, EXCEPT TO THE EXTENT SUCH LOSSES RESULT SOLELY FROM BITGO’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

FOR AVOIDANCE OF DOUBT, COUNTERPARTY'S USE OF THE BITGO API IS SOLELY AT COUNTERPARTY'S OWN RISK. NEITHER BITGO EUROPE NOR ANY OF ITS AFFILIATES, OFFICERS, EMPLOYEES, OR AGENTS SHALL BE LIABLE TO COUNTERPARTY FOR ANY LOSS,   COST,   DAMAGE,   OR   OTHER   INJURY   OR   THIRD-PARTY   CLAIM,   WHETHER   IN CONTRACT   OR   TORT,   ARISING   OUT   OF   OR   CAUSED   IN   WHOLE   OR   IN   PART   BY COUNTERPARTY'S USE OF THE API OR THE INFORMATION PROVIDED THROUGH THE API. IN NO EVENT WILL ANY BITGO PARTY BE LIABLE TO COUNTERPARTY OR ANY THIRD PARTY   FOR   ANY   PUNITIVE,   CONSEQUENTIAL,   INCIDENTAL,   SPECIAL,   INDIRECT (INCLUDING LOST PROFITS, TRADING LOSSES, COSTS, OR OTHER DAMAGES ALLEGED TO HAVE OCCURRED DUE TO ANY INTERRUPTION, DELAY OF SERVICE, SYSTEM FAILURE, ERROR   IN  THE   ELECTRONIC   FUNCTIONING  OF  THE   SYSTEM)  OR   SIMILAR  DAMAGES OUTSIDE   OF   BITGO’S   REASONABLE   CONTROL,   EVEN   IF   ADVISED   OF   THE POSSIBILITY OF SUCH DAMAGE. THIS PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT.

WITHOUT LIMITATION OF THE FOREGOING, BITGO WILL NOT BE LIABLE FOR ANY LOSSES CAUSED DIRECTLY OR INDIRECTLY BY: GOVERNMENT RESTRICTIONS, EXCHANGE OR MARKET RULINGS, MARKET VOLATILITY OR DISRUPTIONS IN ORDER TRADING ON ANY EXCHANGE OR MARKET, SUSPENSION OF TRADING, WAR, STRIKES, SEVERE WEATHER, NATURAL DISASTERS, OTHER ACTS OF GOD, FAILURE OF COMPUTER OR OTHER ELECTRONIC OR MECHANICAL EQUIPMENT, FAILURE, DELAYS, OR ERRORS CAUSED BY OR AFFECTING THE AGREED COMMUNICATION CHANNELS OR COMMUNICATION LINES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, ACTS OF TERRORISM, FAILURE OF THIRD PARTIES TO FOLLOW INSTRUCTIONS, ACTS OR OMISSIONS OF ANY TRADING VENUE OR OTHER CONDITIONS AND OCCURRENCES BEYOND OUR CONTROL.

BITGO WILL NOT BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING TRADING LOSSES), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES OR OTHER LOSSES WERE REASONABLY FORESEEABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY EQUALLY TO BITGO’S AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, SERVICE PROVIDERS, EMPLOYEES OR REPRESENTATIVES, AND DO NOT APPLY WHERE LIMITED BY APPLICABLE LAW.

18.  Indemnification

Counterparty agrees to defend, indemnify and hold harmless BitGo, its affiliates, licensors, and service providers, and each of its or their respective officers, directors, agents, service providers, employees and representatives, harmless from and against any and all claims, losses, liabilities, costs and expenses (including attorneys' fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to Counterparty’s breach of the Agreement or your violation of any law, rule or regulation, or the rights of any third party. This obligation will survive any termination of the Agreement.

19.   Taxes 

It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Trading Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.

20.  Term and Termination

This Agreement shall remain in effect until terminated in writing by either Party.  Regardless of any other provision of this Agreement, BitGo has the right to change the nature or composition of the Trading Services at any time, without prior notice. However, we will use reasonable efforts to provide you advance notice of material changes. BitGo may close or suspend access to the Trading Services without prior notice; provided, BitGo will use reasonable efforts to provide five (5) business days’ prior notice of such suspension, closure, or termination. Such termination or suspension may include declining to accept orders or balance transfers. Regardless of how or when your access is closed, you will remain responsible for all charges, debit items or other transactions you initiated or authorized, whether arising before or after termination. Final disbursement of assets may be delayed until any remaining obligations or indebtedness have been satisfied.

21.  Construction

As used in this Agreement, the words "including", "includes" and their other derivations are non-exclusive and are in each case deemed to be followed by the words "without limitation."

22.  Governing Law and Exclusive Jurisdiction

This Agreement and all matters arising in connection with the Agreement and the Trading Services will be governed by and construed in accordance with the laws of England.

With respect to any suit, action or proceedings relating to this Agreement (“Proceedings”), each party irrevocably:

(i)         submits to the jurisdiction of the English courts, and

(ii)       waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.

23. Assignment

We may assign our rights and obligations under the Agreement without restriction, including to any subsidiary, affiliate, or successor by merger or consolidation. You may not assign your rights or obligation under this Agreement. Any attempted transfer or assignment by you in violation hereof will be null and void. Notwithstanding the foregoing, this Agreement is binding upon you and your heirs, executors, administrators, successors, and assigns.

24.  Entire Agreement

This Agreement and terms contained on the Trading Activity Confirmations, and any other statements and confirmations sent to you by or on behalf of BitGo, together with BitGo’s Terms & Conditions (the “Terms”) and Privacy Notice (as such is posted on the BitGo website located at https://www.bitgo.com/ and as such may change from time to time), comprise the entire understanding between you and BitGo and supersedes all prior discussions, agreements and understandings, including any previous version of this Agreement, with respect to the subject matter hereto. Section headings in the Agreement are for convenience only and shall not govern the meaning or interpretation of any provision of the Agreement. In the event of any conflict or inconsistency between the Terms and the terms of this Agreement, the terms of this Agreement will control.  

25.  Amendments

We may amend or modify the Agreement by posting on the BitGo website, online platform or emailing to you the revised provisions. Revisions to the Agreement shall be effective with respect to existing Counterparties thirty (30) calendar days after the date of such posting or email, or such other time (including an earlier date) that is designated in such communication. Your continued use of the Trading Services also shall be deemed your agreement with any such amendment or modification to the Agreement. If you do not agree with any amendment or modification to the Agreement, your sole and exclusive remedy is to terminate your use of the Trading Services.

26.  Arbitration 

Any dispute arising out of or connected with this Agreement, including a dispute as to the validity or existence of this Agreement and/or this Section, shall be resolved by arbitration with seat (or legal place) in London conducted in the English by three arbitrators pursuant to the rules of the London Court of International Arbitration ("LCIA"), save that:

i)  the third arbitrator, who shall act as the presiding arbitrator of the tribunal, shall be nominated by the two arbitrators nominated by or on behalf of the parties. If the third arbitrator is not so nominated within 30 days of the date of nomination of the later of the two party-nominated arbitrators to be nominated, the third arbitrator shall be chosen by the LCIA;

ii) neither party shall be required to give general discovery of documents, but may be required only to produce specific, identified documents which are relevant to the dispute.

You and BitGo hereby expressly waive trial by jury and right to participate in a class action lawsuit or class-wide arbitration.

If requested by any party, the arbitrator will write an opinion containing the reasons for the award. The arbitrator’s decision will be final and binding except for any appeal rights and except that if the amount awarded exceeds $100,000, any party may appeal the award within 30 days to a three-arbitrator panel which will review the award de novo. The costs of such an appeal will be borne by the appealing party regardless of the outcome. Judgment upon any award by the arbitrator may be enforced in any court having jurisdiction.

Nothing in this Agreement will be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by any party to the other under this Agreement.

This arbitration provision applies to all Claims now in existence or that may arise in the future. This arbitration provision will survive the termination of Trading Services and termination of this Agreement as well as voluntary payment in full by you, any legal proceedings by us to collect a debt owed by you or any bankruptcy by you.

27.  Severability

If any provision or condition of the Agreement shall be held invalid or unenforceable by any court or regulatory or self-regulatory agency or body, such invalidity or unenforceability shall attach only to such provision or condition. The validity of the remaining provisions and conditions shall not be affected thereby, and the Agreement shall be valid and enforceable as if any such invalid or unenforceable provision or condition were not contained herein.

28.  Waiver

Any waivers of rights by BitGo under the Agreement must be expressed in writing and signed by BitGo. A waiver will apply only to the particular circumstance giving rise to the waiver and will not be considered a continuing waiver in other similar circumstances unless the intention to grant a continuing waiver is expressed in writing. Our failure to insist on strict compliance with the Agreement or any other course of conduct on our part shall not be considered a waiver of our rights under the Agreement.

29.  Representations, Warranties, and Covenants. 

At all times while this Agreement remains in effect, Counterparty represents, warrants, and covenants:  

(a)   The information relating to Counterparty as provided to BitGo set forth in this Agreement is true and complete in all respects, except to the extent that Counterparty has provided notice of any change to BitGo;

(b)   Counterparty operates in full compliance with all applicable laws in each jurisdiction in which Counterparty operates, including without limitation applicable securities and commodities laws and regulations, efforts to fight the funding of terrorism and money laundering, sanctions regimes, licensing requirements, and all related regulations and requirements;  

(c) Counterparty either owns or possesses lawful authorization to transact with all virtual asset involved in the Trading Request; 

(d) Counterparty will not use any Trading Services for any illegal activity, including without limitation, illegal gambling, money laundering, fraud, blackmail, extortion, ransoming data, the financing of terrorism, other violent activities or any prohibited market practices including without limitation the prohibited uses described in Section 13; 

(e) Counterparty is currently and will remain at all times in good standing with all relevant government agencies, departments, regulatory or supervisory bodies in all relevant jurisdictions in which Counterparty does business and Counterparty will immediately notify BitGo if Counterparty ceases to be in good standing with any applicable regulatory authority; 

(f) Counterparty will promptly provide such information as BitGo may reasonably request from time to time regarding: (i) Counterparty’s policies, procedures, and activities which relate to the Trading Services in any manner, as determined by BitGo in its sole and absolute discretion; and (ii) any transaction which involves the use of the Trading Services, to the extent reasonably necessary to comply with applicable law, or the guidance or direction of, or request from any regulatory authority or financial institution, provided that such information may be redacted to remove confidential commercial information not relevant to the requirements of this Agreement;  

(g) Counterparty has the full capacity and authority to enter into and be bound by this Agreement and the person executing or otherwise accepting this Agreement for Counterparty has full legal capacity and authorization to do so;  

(h) All information provided by Counterparty to BitGo in the course of negotiating this Agreement and the on-boarding of Counterparty as BitGo’s customer and user of the Trading Services is complete, true, and accurate in all material respects, including with respect to the ownership of Counterparty, no material information has been excluded; and no other person or entity has an ownership interest in Counterparty except for those disclosed in connection with such onboarding; 

(i) Counterparty is not owned in part or in whole, nor controlled by any person or entity that is, nor is it conducting any activities on behalf of, any person or entity that is (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, or any other Governmental Authority with jurisdiction over Custodian or its affiliates with respect to U.S. sanctions laws; (ii) identified on the Denied Persons, Entity, or Unverified Lists of the U.S. Department of Commerce’s Bureau of Industry and Security or the List of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control (“OFAC”) from time to time; (iii) designated under the Hong Kong United Nations Sanctions Ordinance (“UNSO”) and United Nations (Anti-Terrorism Measures) Ordinance (“UNATMO”); (iv) located, organized or resident in a country or territory that is, or whose government is, the subject of U.S. economic sanctions, including, without limitation, the Crimean, Donetsk, and Luhansk regions of Ukraine, Cuba, Iran, North Korea, or Syria; or (v)  the subject of any sanctions administered or enforced by any authority in the the European Union and or Denmark who is responsible for the imposition, administration and/or enforcement of sanctions. 

(j) Counterparty represents and warrants that it is not a U.S. person as defined in Rule 902(k) of Regulation S (“Reg S”) under the U.S. Securities Act of 1933.  Counterparty understands and agrees that: (i) the offer and sale of virtual assets is made in an offshore transaction (as defined in Rule 902(h) of Reg S); (ii) no directed selling efforts (as defined in Rule 902(c) of Reg S) were made in the United States; (iii) it is not acquiring the virtual asset for the account or benefit of any U.S. Person; (iv) its purchase of virtual assets is not part of a plan or scheme to evade the requirements of the Securities Act; and (v) Counterparty will not receive orders through the Trading Services using representatives located in the US (except to the extent Counterparty is a fiduciary acting solely for the benefit or account of a non-US person);

(k) Counterparty acknowledges that BitGo is not regulated by any governmental or regulatory authority and that nothing in this Agreement shall require BitGo to obtain any authorisations, licenses, permissions, consents or registrations from any governmental or regulatory authority to provide the Trading Services; and

(l) Counterparty bears sole responsibility for ensuring its compliance with any applicable law and regulation and it acknowledges and agrees that BitGo is under no obligation to ensure, assist or support the Counterparty in its compliance with the same.

E-Sign Consent

You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with BitGo and your use of the Trading Services. Communications include (i) this Agreement, (ii) any policies published by BitGo with respect to use of the Trading Services, including the Privacy Notice, including updates and amendments thereto; (iii) trading details, history, transaction receipts, confirmations, and any other transaction information; (iv) legal, regulatory, and tax disclosures or statements we may be required to make available to you; and (v) responses to claims or customer support inquiries.

We will provide these Communications to you by posting them on the BitGo Site, and BitGo may also email these Communications to you at the primary email address you have provided, communicating to you via instant chat, and/or through other electronic communication such as text message or mobile push notification.

DISCLOSURES 

Please note the following disclosures associated with virtual currency:▪   Virtual currency is not legal tender and accounts and value balances are not subject to Investor Compensation Schemes.

▪   Legislative and regulatory changes or actions in Denmark or on an international level may adversely affect the use, transfer, exchange, and value of virtual currency.

▪  Unless expressly provided otherwise, the digital assets we support have not been reviewed or approved by the Securities and Futures Commission or any regulatory authority. 

▪   Transactions in virtual currency may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable.

▪   Some virtual currency transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that the customer initiates the transaction.

▪   The value of virtual currency may be derived from the continued willingness of market participants to exchange fiat currency for virtual currency, which may result in the potential for permanent and total loss of value of a particular virtual currency should the market for that virtual currency disappear.

▪   There is no assurance that a person who accepts a virtual currency as payment today will continue to do so in the future.

▪   The volatility and unpredictability of the price of virtual currency relative to fiat currency may result in significant loss over a short period of time.

▪   The nature of virtual currency may lead to an increased risk of fraud or cyber-attack.

▪   The nature of virtual currency means that any technological difficulties experienced by BitGo may prevent the access or use of a customer’s virtual currency.

▪   Any bond or trust account maintained by BitGo for the benefit of its customers may not be sufficient to cover all losses incurred by customers.

Principal Trading Disclosure 

 

BitGo transacts and makes markets in virtual assets and other instruments (together, “Products”). BitGo conducts these activities strictly as principal. BitGo conducts its principal transactions with you as an arm’s length counterparty and does not act as an agent, fiduciary or financial advisor or in any similar capacity on your behalf in relation to these transactions. Any statements made by or through BitGo’s personnel, its electronic systems or otherwise in the processing or execution of transactions should not be construed or relied upon as recommendations or advice of any nature. We expect you to evaluate the appropriateness of any transaction based on the facts and circumstances relevant to you and your assessment of the transaction’s merits.

 

Market Making & Conflicts of Interest

 

BitGo may maintain positions in various Products, whether as the result of trades with, or orders or trade requests received from, you or other counterparties, as part of our hedging strategy, in contemplation of reasonably expected near-term demand or otherwise. BitGo may choose not to hedge or to hedge only a portion of positions that we execute with you, and may unwind or adjust any hedge from time to time in BitGo’s sole discretion, with any profit or loss resulting from such hedging activity, including from the spread, if any, between the price shown to you and the cost to us of the corresponding hedge transaction, accruing solely to BitGo. In all of its communications and transactions with you, including in the handling of requests for firm or indicative quotes, trade requests, placement and execution of orders and all other expressions of interest that may lead to the execution of transactions, there exists the potential that BitGo’s interests may conflict with, diverge from or adversely impact your interests. BitGo’s market making and risk management activities may impact the prices communicated to you for a transaction and the availability of liquidity at levels necessary to execute your orders or trade requests. These activities may also trigger or prevent triggering of stop loss orders, take profit orders, barriers, knock-outs, knock-ins and similar terms or conditions. BitGo may also use information provided to us as principal to effectuate our market making and risk management activities (including for the benefit of our trading positions), to facilitate your and other counterparty transactions and to test or source liquidity.

 

Pricing Factors

 

BitGo’s principles provide that prices offered should be fair and reasonable.  Any price or spread that you receive will be an “all-in” price or spread that incorporates sales and trading mark-ups or other charges over the price or spread at which BitGo traded or may have been able to trade with its other counterparties. Such prices or spreads may differ from the prices or spreads that BitGo offers to other counterparties. Any firm or indicative price or spread or other terms of a transaction (including whether a spread is greater on the bid or offer side) may vary in BitGo’s discretion, depending on a broad range of factors. These include transaction or counterparty specific factors, including the overall size of the transaction, your previous trading behavior (e.g., transaction size and frequency and trading gains or losses, including whether BitGo anticipates that you will, based on your trading history, be more likely to buy or sell), BitGo’s expenses associated with effecting the transaction (including, among other things, transaction processing costs and venue fees associated with execution), the credit and settlement risks associated with the transaction, operational risks (including the operational stability of the market venue where the transaction will be executed), a profit for BitGo (after taking into consideration the impact on financial resources such as balance sheet, risk weighted assets, liquidity, funding and other items that may impact BitGo’s capital positions) and the nature of our relationship with you including the level of service that we provide to you. In addition, BitGo considers other factors, including prevailing market conditions, BitGo’s risk profile, inventory and risk appetite. BitGo’s provision of principal liquidity is therefore not independent from the interests of BitGo, which may conflict with, diverge from or adversely impact your interests. BitGo may also differentiate pricing by platform or trading venue, which may result in you receiving different prices on different platforms or venues. Factors that may contribute to this differentiation by platform or venue include but are not limited to the conventions of the platform or venue, which may include minimum price increment, parameters for accepting or rejecting orders or trade requests, available order or trade types, underlying technology or latency, fees and other economic considerations, such as historic experience with the platform or venue. BitGo may have a stake in or other relationship with trading venues and clearing systems on which BitGo handles your orders or trade requests and, as a result, may receive financial or other benefits that are not shared with you, including through BitGo’s participation in incentive schemes of such trading venues and clearing systems.

 

Order Handling

 

When BitGo accepts an order from you or conveys that it is “working” an order for you, BitGo will attempt, but is not committed, to execute the trade at or near the requested price and/or quantity. BitGo attempts to execute orders when it expects to make an appropriate return on the transaction, taking into account market conditions at the time, its own positions (including inventory strategy and overall risk management strategies), its costs, risks and other business factors and objectives. Neither BitGo’ receipt of an order nor any indication given that BitGo is working an order creates a contract obligating BitGo to execute the order. Where you submit an order which is subject to conditions, the fact that any such conditions are satisfied does not mean that BitGo will complete your transaction at the requested order price or quantity level (after taking into account any spread or similar adjustment reflecting BitGo’s return on the transaction) or that there exists a tradable market at that level. BitGo may receive multiple requests for prices or multiple orders for the same or related Products and may also transact in the same or related Products for the purposes of its market making and risk management activities. BitGo retains discretion as to how to satisfy such competing interests, including with respect to order execution, fill quantity, aggregation, priority and pricing. BitGo is not obligated to disclose to you at any time that we are handling other counterparties’ orders or that we have our own orders trading ahead of, at the same time as, or on an aggregated basis with, your order. BitGo may execute transactions as part of its market making and risk management activities or for the benefit of another counterparty at a price that could satisfy your order, leaving your order unfilled or only partially filled. BitGo may hedge its exposure resulting from orders against internal or external sources of liquidity. Although BitGo is under no obligation to do so, it may, in its sole discretion, aggregate or "bunch" your orders with orders for other counterparties or orders entered into by BitGo in connection with its market making and risk management activities and allocate the investments or proceeds acquired among the participating accounts in a manner that it considers appropriate. If the entire combined order is not executed at the same price, BitGo may blend the prices paid or received and fill the participating accounts at the blended net prices that it elects to assign to each such account, which may result in you receiving a worse price than if your order had been executed on an individual basis. BitGo’s up-to-date Order Execution Policy will be made available to you following your request. 

 

Pre-trade Positioning and Pre-hedging

 

When you indicate your interest in a potential transaction or provide us with a request to enter into a transaction, BitGo may use that information to engage in pre-hedging and hedging activities, which may include entering into transactions prior to executing your potential transaction or request with a view to facilitating your potential transaction or request. Any transactions entered into by us with a view to facilitating your potential transaction or request will be entered into by BitGo as principal, not as agent for you, could be at different prices from the price at which BitGo executes your transaction, may affect the market price of or liquidity for the Products you are buying and/or selling and may result in profit, or loss, to BitGo.

 

Venue execution

BitGo has determined that it is in the best interests of its clients to transmit client orders to, and to execute orders on behalf of clients with specific execution venues with access to global execution venues, including market makers that typically offer better prices than public exchanges.We have appointed BitGo Hong Kong Limited to provide this service.

In determining the most appropriate execution venue we have considered the following:

1. Appointing BitGo Hong Kong Limited enables us to obtain the best possible results on a consistent basis when transmitting orders or executing orders on behalf of customers.

2. We expect that BitGo Hong Kong Limited  will obtain results for our customers that are at least as good as the results we could reasonably expect from using an alternative execution venue or by executing the order ourselves.

BitGo and BitGo Hong Kong Limited shall not receive any remuneration, discount or non-monetary benefit in return for executing on behalf of a client or for routing orders for crypto assets  received from clients to a particular crypto-asset execution venue.

These disclosures may be updated from time to time and made available through http://www.bitgo.com  together with other important disclosures which you should review to the extent applicable to your relationship with BitGo.