OTC Terms and Conditions

These terms and conditions shall apply to all OTC Transactions entered into between MultiExchange UAB (hereinafter, the “Company”, “we”, “our” or “us”) and you (the “Agreement”).

All terms and references used in this Agreement that are not defined herein shall have the meaning given to them in MultiExchange’s Terms and Conditions (the “MultiExchange Terms”).

This Agreement shall be supplemental to and is to be read together with MultiExchange Terms. Any additional terms, conditions, limitations, disclaimers and obligations contained within and on the website are incorporated in to this Agreement by reference.

Where a term is defined both in the Terms of Use and in this Agreement, for the purposes of this Agreement only, the definition in this Agreement shall prevail. In the event of any conflict or inconsistency between this Agreement and MutliExchange Terms, this Agreement shall prevail with respect to the services contemplated hereunder unless expressly stated otherwise.

We hereby reminds you that before accessing or using the OTC Services, you should read this Agreement and MultiExchange Terms carefully. By entering into OTC Transactions, you confirm your acceptance of this Agreement and MultiExchange Terms, as updated and amended from time to time, and sought independent legal advice where necessary, which will take effect immediately and be binding on both parties.

If you do not agree with this Agreement and/or MultiExchange Terms, please cease using the OTC Services immediately. Your continued use of OTC Services or enter into OTC Transactions will be deemed to accept this Agreement.

1. Key Definitions

“Accepted Order” has the meaning given to it in clause 4.4.

“Agreed Communication Channel” means such methods of communication as approved by us and agreed between you and us from time to time, which may include (without limitation) telephone, email, Whatsapp, Telegram, online chat functionality. We reserve the right to withdraw our approval regarding the use of an Agreed Communication Channel at any time for any reason.

“Expiry Time” has the meaning given to it in clause 4.5.

“Manifest Error” means any error, omission or misquote (whether an error of us or any third party) which is manifest or palpable, including a misquote by any representative of the Company, taking into account the current market and currently advertised quotes, or any error or lack of clarity of any information, source, commentator, official, official result or pronunciation. The fact that you may have entered into, or refrained from entering into, a corresponding financial commitment, contract or trade in reliance on an OTC Transaction entered into with the Company (or that you have suffered or may suffer any loss whether direct, indirect, consequential or otherwise) is deemed irrelevant as a factor and shall not be taken into account in determining whether a situation amounts to a Manifest Error.

“Order” means an instruction issued by you to the Company through an Agreed Communication Channel in such form as specified by us from time to time, which shall constitute a request to enter into an OTC Transaction on the basis of the parameters as set out in the Order.

“OTC Services” means the provision of Prices by us to you, your submission of Trade Instructions and/or Orders, and the entry into OTC Transactions, and any related services provided by us or any of our affiliates or Company Partners in connection therewith.

“OTC Transaction” means any bilateral over the counter transaction in Digital Tokens entered into between us and you pursuant to a Trade Instruction or an Order submitted by you (or on your behalf) to us through an Agreed Communication Channel.

“Price” has the meaning given to it in clause 2.1.

“Price Request” means a request made by you through an Agreed Communication Channel for a Price.

“Products” means such products as the Company enables you to trade in from time to time for the purposes of the OTC Services, which may include (without limitation), spot transactions in certain Digital Tokens as permitted from time to time by us and such other products as we may offer in the future, at our sole discretion.

“Related Persons” has the meaning given to it in clause 7.2.1.

“Trade Confirmation” has the meaning given to it in clause 3.10.

“Trade Instruction” means a trade request or instruction issued by you to the Company through an Agreed Communication Channel in such form as specified by us from time to time, which shall constitute an offer made by you to enter into an OTC Transaction on the basis of a Price provided by us.

“Trading Limits” has the meaning given to it in clause 5.11.

“Trading Rules” means any trading rules, contract specifications and other terms applicable to the Products as made available by us from time to time.

2. Prices

2.1 The Company may provide indicative prices in OTC Transactions in such Products as agreed from time to time (“Prices”). Prices will be provided in response to a Price Request through an Agreed Communication Channel and will consist of either a bid price and an offer price or both a bid price and an offer price, as determined by us in our sole discretion.

2.2 You acknowledge and agree that we reserve the right to determine Prices in our sole discretion and may discontinue providing Prices in some or all Products or some or all Digital Tokens and/or cease the use of an Agreed Communication Channel at any time for any reason.

2.3 The Company makes no representations as to the accuracy or fitness for purpose of any Agreed Communication Channel, nor does the Company accept any responsibility for any loss incurred by you arising out of or in connection with your use of an Agreed Communication Channel.

2.4 The Company shall have sole discretion as to whether it wishes to respond to a Price Request. The provision of a Price by us, whether following a Price Request or otherwise, does not constitute an offer to you to enter into an OTC Transaction at that Price, nor does it obligate the Company to accept any subsequent Trade Instruction submitted by you.

2.5 Prices are proprietary in nature and accordingly, the Prices made available to you may differ to other prices provided by other providers. Prices are subject to constant change and whilst we seek to provide Prices that are up to date, circumstances may arise where Prices provided are invalid by the time that a Trade Instruction is received by us in relation to that Price.The Company shall determine how long Prices remain valid in its sole discretion. A Trade Instruction submitted in relation to a Price that is no longer valid will be rejected.

2.6 You acknowledge that the Prices are provided solely for your use of the OTC Services and you may not communicate or otherwise use the Prices for any other reason without our prior consent.

2.7 You acknowledge that any Price provided may be inclusive of bid-ask spread and/or a mark-up determined by us. The Company is under no obligation to disclose the specific amount of any bid-ask spread and/or mark-up to you (unless required by law).

3. Trade Instructions

3.1 You may enter into an OTC Transaction on the basis of a Price provided through an Agreed Communication Channel by entering a Trade Instruction. Each Trade Instruction must include such details as requested by the Company from time to time, depending on the type of OTC Transaction you are looking to enter into, including (without limitation), the relevant trading pairs, the Price (which must be latest Price received from us and shall not have expired or been withdrawn by us, unless we elect otherwise, in our so and absolute discretion, to reference a Price that has expired) and the applicable notional amount (which shall be no less than any minimum amount and no more than any maximum amount that may be specified by the Company from time to time).

3.2 Where any Trade Instruction is ambiguous or inconsistent with any other Trade Instruction, we reserve the right to rely and act upon any Trade Instruction in accordance with our interpretation thereof. In this regard, we shall not be liable for any loss suffered by you if our interpretation of your ambiguous Trade Instruction defers from your actual intentions.

3.3 A Trade Instruction submitted by or on your behalf through an Agreed Communication Channel constitutes an offer to enter into a OTC Transaction on the terms as set out in such Trade Instruction, which may be accepted or rejected by us in our sole discretion.

3.4 The Company may reject a Trade Instruction for any reason and nothing in this Agreement or MultiExchange Terms (or otherwise) obliges us to enter into any OTC Transaction with you in response to a Trade Instruction. We reserve the right to refuse to enter into any OTC Transaction, accept or otherwise act on any Trade Instruction without giving any reason or any notice to you.

3.5 The Company shall be entitled (but not obliged) to verify and be satisfied with respect to the identity of the person purporting to give any Trade Instruction or the source and origin of any Trade Instruction and reserves the right not to act upon any Trade Instruction unless and until the Company is satisfied as to the matters on which verification has been sought.

3.6 A Trade Instruction which is not received by us for any reason, including the failure or delay of any Agreed Communication Channel, shall be deemed rejected.

3.7 A Trade Instruction, once submitted, cannot be withdrawn, cancelled or amended by you once executed unless otherwise permitted by the Company in its sole discretion.

3.8 The execution of a Trade Instruction by the Company, which shall occur upon express confirmation through an Agreed Communication Channel that the related OTC Transaction is “done” or has otherwise been “executed”, will constitute a binding agreement to an OTC Transaction between the Company and you on the terms of the relevant Trade Instruction. You acknowledge and agree that, subject to the rights of the Company as otherwise set out in this Agreement, an OTC Transaction cannot be cancelled, amended or unwound once entered into without the Company’s consent regardless of whether the corresponding Trade Instruction was provided as a result of any inaccuracy or error by you, including in relation to the terms of the OTC Transaction.

3.9 The Company shall notify you of the execution of a Trade Instruction and entry into of an OTC Transaction through an Agreed Communication Channel but any failure or delay in providing such notice shall not affect the effectiveness of such OTC Transaction. If you do not receive a message through an Agreed Communication Channel indicating that a Trade Instruction has been accepted and that an OTC Transaction has been entered into despite submitting the Trade Instruction, you shall promptly contact us through the relevant Agreed Communication Channel to confirm the status of the OTC Transaction.

3.10 Upon the acceptance of the Trade Instruction, the Company may provide you with a written confirmation, setting out the terms of the OTC Transaction (a “Trade Confirmation”).

3.11 You shall be responsible for reconciling any Trade Confirmation or other records of any OTC Transaction entered into between you and the Company pursuant to the OTC Services to your own records of the same and shall notify us promptly of any discrepancies.

4. Orders

4.1 Where permitted by the Company, you may submit Orders to us through an Agreed Communication Channel by specifying the terms of such Order in the manner as directed by us from time to time. In addition, you may request to amend or cancel existing Orders by informing the Company through the Agreed Communication channel provided such Orders have not been executed.

4.2 The Company retains sole discretion to accept or reject any request to amend or cancel an Order. To the extent that your request to amend an existing Order has been accepted, the amended Order will be treated as a new Order placed by you.

4.3 The Company may accept or reject any Order in its sole discretion and any such acceptance or rejection shall be effective upon the Company’s determination.

4.4 For the avoidance of doubt, the acceptance of an Order does not amount to a binding agreement between the Company and you and does not oblige the Company to enter into any OTC Transaction with you. An Order which has been accepted (an “Accepted Order”) may be subsequently returned to you in the Company’s sole discretion and the Company shall not be under any obligation to execute any OTC Transaction with you in response to an Order regardless of whether the Order is an Accepted Order.

4.5 An Accepted Order may be executed in whole or in part at any time after acceptance but no later than the latest time for execution (if any) specified in the Order (the“Expiry Time”). Any Order (or part of any Order) not executed prior to the Expiry Time shall expire at such Expiry Time.

4.6 Execution of an Order (or part of an Order) shall constitute a binding agreement to an OTC Transaction between you and the Company on the terms of such Order. The Company shall notify you of such execution through an Agreed Communication Channel but any failure or delay in providing such notice shall not affect the effectiveness of such OTC Transaction.

4.7 The Company provides no guarantee that any Order can be filled in its entirety as this depends on factors outside of the Company’s control. The Company may add or remove types of Orders at its sole discretion.

5. Transactions

5.1 Unless otherwise agreed, OTC Transactions will be conducted on a principal-to-principal basis. Accordingly, you agree that you will enter into OTC Transactions as principal and not as agent on behalf of any other party, unless otherwise expressly agreed by the Company in writing. Subject to the aforementioned, the Company’s duties and obligations under this Agreement and any OTC Transaction shall be solely to you. Further, unless expressly agreed otherwise, the Company accepts no duties, obligations or responsibilities to any other party, regardless of whether the Company is made aware of any such third-parties.

5.2 You acknowledge and agree that the OTC Services are provided on a non-advised basis, meaning that the Company will not provide you with any advice as to the merits of any OTC Transactions. You acknowledge and agree that you are solely responsible for any decisions taken in respect of any Trade Instructions, Orders or OTC Transactions made. The Company will not provide you with any investment, legal, tax or other form of advice, nor can you request any such advice from us.

5.3 You acknowledge and agree that the terms in this Agreement shall be further supplemented by Trading Rules, where applicable. In the event of any conflict or inconsistency between the terms in this Agreement and the Trading Rules, the Trading Rules shall prevail with respect to the services contemplated hereunder unless expressly stated otherwise.

5.4 You acknowledge and agree that you bear sole responsibility for any reporting of OTC Transactions as may be required under applicable law and regulation and that the Company will not provide any infrastructure, support or assistance with respect to the reporting of OTC Transactions.

5.5 The Company offers no representation as to or guarantee of liquidity in any Digital Tokens and you acknowledge and agree that the Company has no ability to control liquidity and that it takes no responsibility for any loss experienced by you which is caused by or contributed to by illiquidity in any Digital Token. You acknowledge and agree that you shall bear the sole responsibility and risk in relation to OTC Transactions entered into by you pursuant to this Agreement.

5.6 The Company may rectify any error in your OTC Transaction history at any time, and reserves the right to void or reverse any transaction:
5.6.1 involving or deriving from a Manifest Error;
5.6.2 that has been conducted in breach of the terms of this Agreement; or
5.6.3 to reflect what we reasonably consider to be the correct or fair details of the transaction.

5.7 You acknowledge and agree that, if:
5.7.1 the Company determines that one or more Prices at which one or more OTC Transactions are executed differs materially from the prevailing market price for the relevant OTC Transaction(s) at such time, or are otherwise erroneous in nature (including without limitation inadvertently presenting a bid price as an offer price or vice versa), due to the transmission of one or more incorrect Prices by us and/or in the event of extreme market volatility; or
5.7.2 the Company has reason to believe that you have executed an OTC Transaction with improper intent or determines that there may be suspected market manipulation, including (without limitation), capitalising on opportunities where the executable price of an OTC Transaction does not reflect prevailing market rates, or taking unfair advantage of the way in which the Company offers Prices,
then, in each case, the Company is authorised by you (without any payment or penalty due by either the Company or you and provided that such action is in compliance with Applicable Law) to either:
a) cancel/void such OTC Transaction(s) and treat such OTC Transaction(s) as if they had never been entered into; or
b) amend the Price(s) of such OTC Transaction(s) (upon notice from us to you of the amended Price(s)) to reflect the prevailing market Price(s) as at the relevant time, as determined by the Company by reference to an available source for fair market pricing.

5.8 If we elect to cancel an OTC Transaction pursuant to the rights referred to in this clause 5.7, the Company reserves the right to take all necessary actions, including instructing Company Partners and Company Partner Platforms, for the purposes of retrieving any transfers of Digital Tokens that have been made to and/or from you in connection with such OTC Transaction as if that OTC Transaction had never taken place. In this regard, you agree to provide all necessary assistance so that the above may be effected. Further, you agree to comply with all instructions provided by the Company in relation to the foregoing.

5.9 Where the Company amends an OTC Transaction pursuant to the rights referred to in clause 5.7, the Company will confirm the details of the amended terms of the OTC Transaction to you through an Agreed Communication channel and will take all necessary action to affect transfers of Digital Tokens as are required to reflect the terms of the amended OTC Transaction. Accordingly, you agree to comply with the amended terms of the OTC Transaction and shall provide all necessary assistance in order for the same to be affected.

5.10 You acknowledge and agree that the Company shall not be liable for any losses or damages you may incur due to the transmission of one or more incorrect prices by the Company and/or in the event of extreme market volatility and/or as a result of any cancellation or amendment of OTC Transaction(s).

5.11 You acknowledge and agree that any Trade Instructions, Orders or OTC Transactions may be subject to risk and/or credit limits imposed by the Company from time to time which may be general or specific to you, may apply to all or certain Digital Tokens only and at all times are imposed, amended, maintained or removed at the sole discretion of the Company (“Trading Limits”). The Company may reject, or cancel or amend any Trade Instruction or Order that, in its sole discretion, breaches or will breach a Trading Limit. The Company shall have no liability to you for any loss incurred in connection with any Trade Instructions or Orders which are rejected, or cancelled or amended by us in circumstances where such Orders breach a Trading Limit. You undertake to cooperate with the Company and supply all information and data that the Company considers reasonably necessary to set appropriate Trading Limits with respect to the OTC Services.

5.12 You further acknowledge and agree that, in the absence of Manifest Error, the Company’s records as to OTC Transactions entered into with you shall be final and conclusive. However, we may at any time rectify any error on any entry, statement, Trade Confirmation or advice which has been proved to its satisfaction, and may demand immediate repayment from you of any Digital Tokens erroneously paid over to you as a result of such error. Any and all objections by you shall not be valid unless accompanied by supporting evidence for such objections. You undertake and agree to maintain appropriate records of all Orders and OTC Transactions as required pursuant to Applicable Law.

5.13 Subject to the Company’s rights as otherwise set out in this clause 5, a Trade Confirmation which does not accurately reflect the relevant OTC Transaction entered into via an Agreed Communication Channel:
5.13.1 does not affect the validity of the OTC Transaction which the Trade Confirmation evidences; and
5.13.2 where there is Manifest Error, does not entitle you to enforce whatever is inaccurately recorded in the Trade Confirmation.

5.14 The Company reserves the right to void or reverse from the outset any OTC Transaction involving or deriving from a Manifest Error or to amend the details of such OTC Transaction to reflect that which the Company considers in its sole and absolute discretion acting in good faith to be the correct or fair details of such a Transaction absent Manifest Error.

5.15 Without prejudice to the generality of the other terms in this Agreement, and in the absence of fraud or bad faith, the Company shall in no circumstances be liable to you for any loss or demand of whatsoever nature you may suffer or incur in connection with any Manifest Error howsoever arising, whether direct or indirect, special or consequential, including, but not limited to, loss of profit, loss of opportunity or even if the Company had been advised of the possibility of the same arising or that the same were reasonably foreseeable.

5.16 The Company shall bear no loss and/or liability whatsoever for failing to accept any Trade Instruction and/or Order for exercising or failing to exercise any discretion, power or authority conferred upon us by this Agreement. We shall not be liable to you for any and all loss incurred by you arising from any loss or delay in the transmission or wrongful interception of any Trade Instruction and/or Order through an Agreed Communication Channel, including any equipment or system owned and/or operated by or for us.

5.17 You agree to pay any applicable fees, expenses, charges and obligations related to your receipt of the OTC Services as specified by the Company from time to time, together with any other amounts payable to us under this Agreement and MultiExchange Terms.

5.18 It is your sole responsibility to determine whether and to what extent any tax obligations may apply as a result of your use of OTC Services or your OTC transactions. You agree that we are not responsible for collecting, reporting any taxes arising from any of your OTC transactions or your use of OTC Services.

5.19 All OTC Transactions are settled on a per trade basis. Netting will not be applied between multiple OTC Transactions unless otherwise agreed in writing between you and the Company.

5.20 All OTC Transactions shall be settled to/from a designated wallet approved by us (i.e. designated wallets hosted by Company Partners/Company Partner Platforms). We may agree to permit settlement of OTC Transactions to and from an external wallet held by you outside of Company Partners/Company Partner Platforms, however we are not obliged to do so.

5.21 If the Company permits settlement of OTC Transactions to an external wallet, you shall be solely liable for the payment of all fees and charges associated with such settlement and you undertake to fully reimburse the Company on demand for any fees, charges or losses incurred in connection with such settlement.

6. Representations and warranties

6.1 In addition and without prejudice to the representations and warranties made by the Parties in MultiExchange Terms, you hereby represent and warrant as follows each time you enter into an OTC Transaction:
6.1.1 You are capable of assessing the merits of and understanding (on your own behalf or through independent professional advice), and understand and accept the risks and the terms and conditions of the relevant OTC Transaction and are capable of assuming, and assume, the risks of that OTC Transaction; and
6.1.2 You are acting for your own account and have made your own independent decisions to enter into the relevant OTC Transaction and as to whether the OTC Transaction is appropriate and proper for you based on your own judgment and upon advice from such advisors as you have deemed necessary. You are not relying on any communication (written or oral) made by or on behalf of the Company as investment advice or as a recommendation to enter into the OTC Transaction, it being understood that information or explanations in relation to the terms of a OTC Transaction shall not be considered as investment advice or a recommendation to enter into that transaction. The Company is not acting as your fiduciary or adviser in connection with that OTC Transaction.

7. Limitations on liability

7.1 You acknowledge and agree that the use of an Agreed Communication Channel in connection with the OTC Services is entirely at your own risk and accordingly, you assume full responsibility and risk of loss resulting from or relating to such use.

7.2 Without prejudice to the foregoing and without prejudice to or duplication of any disclaimers, limitations or liability and indemnity provisions set out in MultiExchange Terms and except to the extent that liability cannot be excluded under any applicable law or regulation, you acknowledge and agree that:
7.2.1 neither the Company nor any of its affiliates, their respective directors, shareholders, member, officers, employees, attorneys, agents, representative, suppliers or contractors (“Related Persons”) shall be liable for any loss, damage or claim of any kind whatsoever arising directly or indirectly as a result of:
a) any Price provided by the Company;
b) any errors in or omissions from an Agreed Communication Channel;
c) any failure of an Agreed Communication Channel to transmit, or any delay in the transmission or receipt of any Trade Instruction or Order, any rejection or non-execution of any Trade Instruction or Order, or any delay by you in the receipt of any notification (including any Trade Confirmation) confirming that any Trade Instruction or Order has or has not been executed; or
d) any unauthorised access to or use of an Agreed Communication Channel;
e) any action taken by us as it deems reasonably necessary to ensure its compliance with applicable law and regulation;
f) any actions, omissions, defaults or insolvency of any third-party service provider in connection with the OTC Services.
7.2.2 neither the Company nor any Related Persons shall have any liability arising from Trade Instructions, Orders, investment decisions or purchases of any third party goods or services (including financial instruments and Digital Tokens) based on any Price or any other information provided through an Agreed Communication Channel or otherwise;
7.2.3 under no circumstances shall the Company or any Related Persons be liable for any damages whatsoever, whether direct, indirect, punitive, special or consequential, that are directly or indirectly attributable to the use of, or inability to use, an Agreed Communication Channel or the OTC Services, even if advised of the possibility of such damages or if such damages were foreseeable;
7.2.4 neither the Company nor any Related Persons shall be liable for any failure to perform any obligation under this Agreement or for any delay in the performance thereof, due to force or condition beyond our reasonable control; and
7.2.5 the total aggregate liability of the Company and its Related Persons in connection with this Agreement and the OTC Services, whether based in contract, tort (including negligence or strict liability), or otherwise, will not exceed one hundred thousand U.S. Dollars (USD 100,000). The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy.