Terms of Use

THESE COMMERCIAL TRADING STANDARD TERMS AND CONDITIONS (these “Terms and Conditions”) apply to all transactions undertaken between any Service Provider and any Client (each as defined herein).

‍

1. Definitions.

‍The following terms used in these Terms and Conditions have the following meanings:

1.1. “Affiliate” means, with respect to any Person, any entity that controls, is controlled by, or is under common control with (directly or indirectly through one or more intermediaries) that Person.

1.2. “Applicable Law” means, with respect to any Person, all laws, regulations, rules, judgments, orders, decrees and directives applicable thereto, as the same may be amended, modified, supplemented or replaced from time to time, including, without limitation, Bribery and Corruption Laws, Data Protection Laws, and Financial Crime Laws.

1.3. “Asset” means any stablecoin, digital currency or other digital asset made available by or through a Service Provider for purchase or sale by a Client.

1.4. “Authority” means, with respect to any Person, any supranational or national body or agency having jurisdiction thereover.

1.5. “Authorisations” means, with respect to any Person, any order, permit, approval, consent, waiver, license or similar authorisation of any Authority.

1.6. “Authorised Person” means any Person who is, or is reasonably believed by another Person in good faith to be, a Person designated or authorised by that Person to act for and on behalf of that Person.

1.7. “Authorised Agent” means any Person authorised by a Client pursuant to an Authorised Agent Form to act as agent for that Client and with respect to which the relevant Service Provider has fulfilled its KYB Obligations.

1.8. “Authorised Agent Form” means the form prescribed by any Service Provider pursuant to which Clients may appoint Authorised Agents.

1.9. “Bribery and Corruption Laws” means the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and any anti-bribery or anti-corruption law or regulation applicable to the subject Person in any particular jurisdiction, in each case, as the same may be amended, modified, supplemented or replaced from time to time.

1.10. “Client” means any Person acting as a principal which conducts or proposes to conduct a Trade with any Service Provider.

1.11. “Confidentiality Agreement” means that certain Mutual Confidentiality and Non-Disclosure Agreement between Yellow Card and the other party thereto.

1.12. “Costs” means any costs incurred by a Service Provider or any of its Affiliates arising out of or in connection with conducting or attempting to conduct a Trade, which costs shall include any wasted costs incurred as a result of any action or inaction by the Client or any of its Affiliates or Authorised Agents, and which costs are recoverable, as provided in clause 8.

1.13. “Currency” means any fiat currency.

1.14. “Data Protection Laws” means laws and regulations relating to data protection and privacy matters, as the same may be amended, modified, supplemented or replaced from time to time.

1.15. “Default Interest” means the greater of one and one-half percent (1.5%) per month or the maximum interest rate permitted by Applicable Law.

1.16. “Electronic Communication” means any communication by telephone, website, app, email, automated messaging system, or any other method of electronic telecommunication or transmission.

1.17. “Engagement Letter” means that certain Engagement Letter Regarding Commercial Trading entered into by and between an Affiliate of Yellow Card and any Client.

1.18. “Financial Crime” means money laundering, financing of terrorism, evasion of Sanctions, fraud, evasion of Tax, or any attempt to engage in the same or to circumvent Applicable Law relating thereto.

1.19. “Financial Crime Laws” means laws and regulations relating to Financial Crime matters, as the same may be amended, modified, supplemented or replaced from time to time.

1.20. “Indemnified Party” has the meaning given to it in clause 9.

1.21. “KYB Obligations” means, with respect to any Person, all obligations to comply with Financial Crime Laws or other similar laws and regulations, any voluntary code, directive or guidance, or any relevant internal policies and procedures, in each case, with respect to client “onboarding” matters.

1.22. “Losses” has the meaning given to it in clause 9. 

1.23. “Order” means any order made by an Authorised Person of a Client or any of its Affiliates or Authorised Agents to purchase or sell Assets, including any indication of interest, response to a request for a Price Quote, bid, offer, or instruction or request to execute a Trade.

1.24. “Order Confirmation” has the meaning given to it in clause 7.2.

1.25. “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof), or other entity of any kind.

1.26. “Price Quote” means a quoted price provided by any Service Provider to any Client or any of its Affiliates or Authorised Agents with respect to any prospective Trade.

1.27. “Sanctions” means the sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctions Authority, as the same may be amended, modified, supplemented or replaced from time to time.

1.28. “Sanctions Authority” means the United States of America, including the Department of the Treasury’s Office of Foreign Assets Control (OFAC), the United Nations, the European Union, the Organisation for Security and Cooperation in Europe (OSCE), the United Kingdom, including the Office of Financial Sanctions Implementation (OFSI) of Her Majesty’s Treasury, and any other Authority with the power to impose sanctions, embargoes or restrictive measures.

1.29. “Settlement Date” has the meaning given to it in clause 7.3.

1.30. “Service Provider” means any Affiliate of Yellow Card that conducts or proposes to conduct a Trade with any Client.

1.31. “Trade” means the purchase or sale of Assets in exchange for Currency.

1.32. “Trade Confirmation” has the meaning given to it in clause 7.3.

1.33. “Trading Documents” means an Order, Order Confirmation, and Trade Confirmation, along with all other documents ancillary or related to the process of conducting Trades as set out in clause 7. 

1.34. “Tax” means all forms of taxation and statutory, governmental, federal, state, provincial or municipal charges, duties, imposts, contributions, levies, withholdings, ad valorem or sales and use taxes, or other liabilities in the nature of taxation, wherever chargeable, and any penalty, fine, surcharge, interest, charges or costs relating to it.

1.35. “Yellow Card” means Yellow Card Financial Inc., a Delaware corporation with registration number 5982507 and its registered office at 16192 Coastal Highway, Lewes, Delaware 19958.

‍

2. Role of Service Providers.

‍Each Client acknowledges and agrees that any Service Provider may act as principal or intermediary when carrying out the transactions contemplated by, and performing its obligations under, these Terms and Conditions and the Engagement Letter. Each Client further acknowledges and agrees that any Service Provider may execute the transactions contemplated by these Terms and Conditions or the Engagement Letter, in whole or in part, by relying on any of its Affiliates, and that, accordingly, any Service Provider may instruct any Client or any of its Affiliates or Authorised Agents to make payments of Currency or transfer Assets directly to any Affiliate of such Service Provider.

‍

3. Binding Nature of Terms and Conditions; No Commitment to Disclose Information or Engage in Transactions.

‍Each Client and each Service Provider acknowledges and agrees that these Terms and Conditions are binding upon it. Nothing contained in these Terms and Conditions, the Engagement Letter or the Confidentiality Agreement shall imply any commitment or agreement to disclose any particular information nor to undertake any Trade.

‍

4. Conflicting Terms.

If there is any conflict between these Terms and Conditions and any Trading Documents, the terms of the Trading Documents shall prevail to the extent that the conflicting term is specific to the relevant Trade. If there is any conflict between these Terms and Conditions and the Engagement Letter, the terms of the Engagement Letter shall prevail to the extent that the conflicting term varies these Terms and Conditions.

‍

5. Reliance on Authorised Persons.

‍Each Client acknowledges and agrees that any Service Provider may rely on any Order or other direction or instruction from any Authorised Person of such Client or any of its Affiliates or Authorised Agents, and may accept and act thereon without further inquiry, and further that such Client shall be liable for and bound by any such Order, direction or instruction, as well as any resulting Trade. 

‍

6. Suitability of Trades.

‍In determining whether to place any Order or enter into any Trade, each Client represents and warrants to the relevant Service Provider that it: (a) understands the legal and regulatory status of Assets in each relevant jurisdiction; (b) either alone or with its professional advisors, has such knowledge, sophistication and experience in business and financial matters (including with respect to Assets) to enable it to consider, evaluate and accept all the inherent risks associated with purchasing and selling Assets, including, but not limited to, credit risk, market risk, and liquidity risk; and (c) is not relying upon any Service Provider for (nor has any Service Provider provided) any investment advice or other recommendations.

‍

7. Trading.

7.1. Orders. A Trade may be executed via an Order placed to purchase or sell Assets in exchange for Currency through the selection of a Price Quote. Upon receipt of an Order, a Service Provider may (but shall not be obligated to) provide the Client with a Price Quote, which must be accepted within the expiration time stated therein; otherwise, the Price Quote shall be deemed to have been rejected by the Client. For the avoidance of doubt, a Price Quote is not an offer from a Service Provider to the Client to execute a Trade on specific terms, but is rather merely an “invitation to treat”.

7.2. Order Confirmation. If a Client accepts a Price Quote (each, an “Order Confirmation”), an offer shall be deemed to have been made by the Client to the Service Provider to execute a Trade on the terms specified in the Price Quote; said offer shall be deemed to have been accepted when the Service Provider sends an Electronic Communication to the Client confirming its acceptance of the Client’s offer. The Service Provider shall thereafter provide the Client with a Trade Confirmation in due course, and without any further action required thereon by the Client.

7.3. Trade Confirmation. Following receipt of an Order Confirmation, the Service Provider shall send to the Client an Electronic Communication confirming the terms of the purchase or sale of Assets (each, a “Trade Confirmation”), including the specified Asset and amount thereof to be purchased or sold, the denomination and amount of Currency to be paid or received in exchange therefor, and the date and time for settlement of the Trade (the “Settlement Date”). 

7.4. Settlement. For each Trade, the method of settlement shall be set out in the relevant Trade Confirmation. Where a Client purchases Assets, the Client shall first transfer (or cause to be transferred) to the Service Provider (or as otherwise instructed by the Service Provider) the specified denomination and amount of Currency. Where a Client sells Assets, the Client shall first transfer (or cause to be transferred) to the Service Provider (or as otherwise instructed by the Service Provider) the specified Asset and amount thereof. Upon receipt of the relevant Currency or Asset, the Service Provider shall execute the Trade and deliver (or cause to be delivered) to the Client (or as otherwise instructed by the Client) the relevant Asset or Currency. 

7.5. Fulfillment of KYB Obligations. For the avoidance of doubt, each Trade is subject to compliance by the relevant Service Provider and Client with their respective KYB Obligations.

7.6. Continuing Obligation of Clients. In the event a Service Provider delivers or causes to be delivered to a Client or any of its Affiliates or Authorised Agents the relevant Asset or Currency, the Client shall be liable for and obligated to deliver to the Service Provider the relevant Currency or Asset in exchange therefor.

7.7. Inability of Service Providers to Execute a Trade. Each Client acknowledges and agrees that, in circumstances where it delivers to a Service Provider an Order Confirmation in relation to an Asset that is or becomes illiquid, it is possible that execution or settlement of the related Trade may be affected by such illiquidity and, as a result, it may not be possible for the Service Provider to execute or settle such Trade in accordance with the related Trade Confirmation, and therefore the Client must be prepared to remain in a Trade until its Settlement Date.

7.8. Taxes. No Service Provider makes any representation or warranty to any Client regarding any applicable Tax that is or may become due or payable to any Authority in connection with any Trade. Each Client acknowledges and agrees that any amount of Currency payable or Assets transferable by it to any Service Provider in connection with any Trade is exclusive of any applicable Tax, and that the Client is responsible for paying any such Tax and filing any related Tax return(s). Where a Service Provider is registered in any jurisdiction for value added or similar Tax purposes, each Client acknowledges and agrees that any such Tax will be levied by the Service Provider on each Trade if required by Applicable Law and, accordingly, that any such Tax shall be payable solely by the Client to the relevant Authority, or directly to the Service Provider to enable it to remit such Tax to the relevant Authority. In the event any Client believes it is exempt from any such Tax, the Client shall provide to the Service Provider supporting exemption certificates and/or notices issued or approved by the relevant Authority, prior to the settlement of any Trade.

‍

8. Set-Off; Recovery of Liabilities, Losses and Costs.

Each Service Provider shall, at any time and without notice, have the right to set-off, recoup, deduct, withdraw from accounts or wallets, and/or otherwise recover from any Client or any of its Affiliates or Authorised Agents any amounts owed to such Service Provider or any of its Affiliates (of any nature and howsoever arising), including, but not limited to, Default Interest, applicable Tax, and Costs, including, without limitation, by combining and/or consolidating all or any Currencies or Assets held by such Client or any of its Affiliates or Authorised Agents with such Service Provider or any of its Affiliates, as determined by such Service Provider in its reasonable discretion. Any exercise by any Service Provider of its rights under this clause shall not limit or affect any other rights or remedies available to it under these Terms and Conditions, the Engagement Letter, or otherwise.

‍

9. Indemnification.

‍Each Client and each Service Provider shall indemnify and hold harmless the other party and its directors, officers, employees, agents, and representatives (each, an “Indemnified Party”) from and against any and all losses, costs, expenses, liabilities, damages, demands and claims (collectively, “Losses”) arising from a breach by it (or any of its Authorised Agents, in the case of any Client) of these Terms and Conditions or the Engagement Letter, save if and to the extent any such Losses were caused by the wilful misconduct or gross negligence of the Indemnified Party.

‍

10. Limitation of Liability.

‍NO PARTY SHALL BE LIABLE FOR ANY DIRECT LOSS CAUSED IN WHOLE OR IN PART BY ANY ACTIONS UNDERTAKEN BY IT OR ANY OTHER PERSON TO COMPLY WITH FINANCIAL CRIME LAWS OR AN ORDER, DECREE OR DIRECTIVE FROM ANY AUTHORITY. FURTHER, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY THE OTHER PARTY OR ANY OTHER PERSON, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR SUCH OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

‍

11. Furnishing of Information.

‍Each Client and each Service Provider agree to promptly furnish and, in the case of any Client, cause its Authorised Agents to promptly furnish all information requested by the relevant Service Provider or Client, as the case may be, to enable it to fulfill its KYB Obligations or to respond to any investigation by or request for information from any Authority, in each case, in accordance with the terms of the Confidentiality Agreement.

‍

12. Representations and Warranties.

‍On each Settlement Date, each Client and each Service Provider entering into the relevant Trade represent and warrant to the other that: (a) it is an entity duly constituted and registered and validly existing and in good standing under the laws of its jurisdiction of formation; (b) it has the full power and authority and possesses all Authorisations required to enter into the transactions contemplated by these Terms and Conditions and to perform its obligations hereunder; and (c) it is in compliance with all of its obligations under Applicable Law which may be relevant to these Terms and Conditions and the transactions contemplated hereby, in particular, Bribery and Corruption Laws and Financial Crime Laws. 

‍

13. Covenants and Undertakings.

‍For so long as they engage in making Trades, each Client and each Service Provider agree: (a) not to engage and, in the case of any Client, to use reasonable efforts to prevent its Authorised Agents from engaging in any activity that constitutes or, if conducted, would constitute a breach of these Terms and Conditions or the Engagement Letter, or a violation of Applicable Law which may be relevant to these Terms and Conditions or the Engagement Letter and the transactions contemplated hereby and thereby, in particular, Bribery and Corruption Laws and Financial Crime Laws; and (b) promptly upon becoming aware of any such breach or violation, to notify the other party of, take remedial action regarding, and assist the other party with investigating the same. Each Client acknowledges and agrees that any Service Provider, when fulfilling its obligations under Financial Crime Laws or other Applicable Law, may be required to take certain actions that could result in the delay, suspension or termination of a Trade, as well as performance by such Service Provider of its obligations under these Terms and Conditions or the Engagement Letter. 

‍

14. Force Majeure.

‍No Service Provider or Client shall be in breach of these Terms and Conditions or the Engagement Letter, and neither of them shall be liable or have responsibility of any kind for any loss or damage incurred by the other as a result of, any total or partial failure, interruption or delay in the performance of its obligations under these Terms and Conditions or the Engagement Letter that are occasioned by circumstances outside of its control, including, but not limited to, any act of God, natural catastrophe or calamity, global pandemic, war, terrorism, civil commotion or unrest, labor dispute, interruption of power supply, action by an Authority, or any other reason beyond its control.

‍

15. Governing Law and Dispute Resolution.

15.1. Governing Law. The governing law of these Terms and Conditions and the Engagement Letter shall be the substantive law of England and Wales. 

15.2. Mediation and Arbitration. In the event of any dispute or claim arising out of or in connection with these Terms and Conditions or the Engagement Letter, including non-contractual disputes or claims, or any question regarding their existence, validity or termination (each, a “Dispute”), the relevant parties shall first seek settlement of that Dispute by mediation in accordance with the Mediation Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause. If the Dispute is not settled by mediation within thirty (30) days of the commencement of the mediation or such further period as the relevant parties may agree in writing, the Dispute shall, save as otherwise provided in clause 15.3, be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause. The language to be used in the arbitration shall be English. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be one, and the seat, or legal place, of arbitration shall be Dubai, United Arab Emirates.

15.3. Legal Proceedings. Notwithstanding clause 15.2, in the event that any Dispute involves a defendant which is registered in any jurisdiction that is not a contracting party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (commonly known as the New York Convention), the claimant, at its sole option, may, within thirty (30) days after conclusion of the mediation period referred to in clause 15.2 by notice delivered to the defendant via Electronic Communication, elect to submit the Dispute to any court of competent jurisdiction, which court shall have non-exclusive jurisdiction to adjudicate the Dispute. This clause is for the sole benefit of the claimant. If arbitration proceedings in relation to the Dispute have commenced prior to the commencement of court proceedings, the parties shall discontinue the arbitration proceedings promptly after the claimant has commenced court proceedings. It is further agreed that, upon commencement of the court proceedings by the claimant, any arbitral tribunal already appointed, or to be appointed, shall not have any jurisdiction over the Dispute. 

15.4. Costs and Expenses. Each party shall bear its own costs and expenses (including, without limitation, attorneys’ fees) incurred in connection with any mediation, arbitration or court proceeding.

15.5. Injunctive Relief. Notwithstanding the other provisions of this clause, any Service Provider or any Client may seek injunctive relief or specific performance in any court of competent jurisdiction to enforce its rights under these Terms and Conditions or the Engagement Letter in the event that by failing to do so it will suffer immediate and irreparable harm or damage, or be subject to unconscionable acts.

‍

16. Confidentiality.

‍The terms of the Confidentiality Agreement shall apply to the disclosure of information as provided therein.

‍

17. Electronic Communication.

‍Any Service Provider may communicate with any Client via Electronic Communication in lieu of communication in writing or print form, save as otherwise provided in these Terms and Conditions or the Engagement Letter.

‍

18. Miscellaneous

18.1. Nature of Relationship. Neither these Terms and Conditions or the Engagement Letter nor any course of dealing between any Client and any Service Provider shall create any agency, partnership, or joint venture relationship between them.

18.2. Severability. If any provision of these Terms and Conditions or the Engagement Letter is determined to be void or unenforceable, that provision shall be severed, and, if applicable, such provision shall be replaced with a valid and enforceable provision that most closely approximates the intent of the parties.

18.3. Waiver. A waiver by any party or the failure by any party to claim a breach of any provision of these Terms and Conditions or the Engagement Letter shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach of any provision hereof. Any failure or delay by a party in exercising any right, power or privilege under these Terms and Conditions or the Engagement Letter shall not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege shall not be presumed to preclude any subsequent or further exercise of that right, power or privilege or exercise of any other right, power or privilege.

18.4. Amendment. Yellow Card may periodically update and amend these Terms and Conditions, save that no such amendment shall take effect without prior notification to the Client.

18.5. Entire Agreement. These Terms and Conditions and the Engagement Letter constitute the entire agreement between each Service Provider and each Client with respect to the subject matter hereof and thereof.