DIGITAL ASSET AGREEMENT AU Card Digital LTD

 

This DIGITAL ASSET AGREEMENT (this “Agreement”), is made between AU Card Digital LTD, a corporation and having a business address at Inniscarra, Main Street, Rathcoole Co. Dublin Ireland, Company number 691371 (“AUCD”) including its affiliates, parents, and subsidiaries, and you (“Counterparty”) upon your use of the services described herein including but not limited to the transfer, offer to purchase or sale digital asset(s) to AUCD, (together with AUCD, the “Parties” and each a “Party”).

WHEREAS the Parties desire to enter into a Purchase or Sales for the purchase and sale of cryptocurrency as set forth herein.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

ARTICLE I.

DEFINITIONS

 

Section 1.1     In addition to the capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the meanings specified in this Article I:

“Counterparty Purchased Cryptocurrency” or “CPCT” shall mean the number and type of cryptocurrency Counterparty is obligated to purchase from AUCD pursuant to a Purchase or Sale.

“Counterparty Purchase Price” shall mean the price per applicable cryptocurrency set forth in a Purchase or Sale multiplied by the number of Counterparty Purchased Cryptocurrency set forth in such Purchase or Sale.

“Cryptocurrency Network” shall mean the peer-to-peer computer network that governs the transfer of the applicable cryptocurrency.

“AUCD Purchased Cryptocurrency” or “CPC” shall mean the number and type of cryptocurrency AUCD may purchase from Counterparty pursuant to a Purchase or Sale. AUCD is a regulated financial institution and is not obligated to provide details regarding its decision to complete or not complete any transactions.

“AUCD Purchase Price” shall mean the price per applicable cryptocurrency set forth in a Purchase Order multiplied by the number of AUCD Purchased Cryptocurrency set forth in such Purchase Order.

“Custodian” the independent licensed third-party trust custodial service provider which provides the custodial services Counterparty’s “Wallet” or “Wallet(s)” to support and store digital currencies and digital tokens “Digital Assets,” which is licensed to act as Custodian of Digital Assets on Counterparty’s behalf. Counterparty hereby requests Custodian to create a Wallet(s) on its behalf for its performance under this Agreement. AUCD does not act as a Custodian for Counterparty’s Digital Assets and assumes no liability or responsibility for the services provided by Custodian and fully disclaims such and Counterparty accept such disclaimer. Counterparty hereby accepts such Wallet(s) AS IS. AUCD makes no warranties or guarantees regarding the services of the Custodian, the security of the Wallet(s), the contents of the Wallet(s), the ownership of the Wallet(s), the existence of the Wallet(s) and AUCD assumes no liability for such services or Wallet(s). Counterparty acknowledges and agrees that Counterparty is fully responsible and liable for any and all taxes (“Taxes”) in all jurisdictions regarding any transaction, transfer, purchases or sales directly or indirectly related to this Agreement. Any fiat balances displayed in conjunction with the Wallet(s) are for informational purposes only and are not fiat balances within the Wallet(s) and are not binding on the Custodian.

“Liens” shall mean security interests, liens, mortgages, hypothecations, pledges, claims (pending or threatened), rights of first refusal, charges, escrows, encumbrances, or similar rights.

“Non-Cooperative Jurisdiction” shall mean any country or territory that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering (“FATF”). See http://www.fatf- gafi.org for FATF’s list of non-cooperative countries and territories.

“OFAC” shall mean the United States Office of Foreign Assets Control. The lists of OFAC prohibited countries, territories, persons, and entities can be found on the OFAC website at https://home.treasury.gov/.

“Person” shall mean any individual, corporation, partnership, association, limited liability company, trust, estate, or other entity, either individually or collectively.

“Purchase or Sale” means each electronic confirmation sent by Counterparty or AUCD, as the case may be, duly confirmed by Counterparty or AUCD, as applicable, before the end of the Review Period as set forth herein and incorporated herein by reference, setting forth, among other things, the number of Counterparty Purchased Cryptocurrency; the number of AUCD Purchased Cryptocurrency; the price per applicable cryptocurrency and the Counterparty Purchase Price or the AUCD Purchase Price, or the transfer of cryptocurrency by either Party to another Wallet(s) or wallet on the blockchain.

“Settlement Date” shall mean, with respect to any transfer, purchase or sale, the date designated as such in the electronic confirmation provided relating to such transfer, purchase, or sale. The Settlement Date is a material term of this Agreement, time is of the essence.

“Wallet” means the custodial service which hold the cryptocurrency by the Custodian. Counterparty is solely responsible for the contents and activities of the Wallet(s), and AUCD assumes no responsibility or liability for such.

The United Nations Convention on Contract for the International Sale of Goods shall not apply to this Agreement.

 

ARTICLE II

SALE AND PURCHASE OF THE CRYPTOCURRENCY

 

Section 2.1    Purchase or Sale.

During the term of this Agreement and at such times as mutually agreed by the Parties, the Counterparty or AUCD may submit a Purchase or Sale to AUCD or the Counterparty via the AUCD’s designated portal and this Agreement, and the party receiving the Purchase or Sale shall have the time denoted in the portal but not more than ten minutes from initiation of the Purchase or Sale (the “Review Period”) to confirm such Purchase or Sale via the AUCD portal after which Review Period such Purchase or Sale shall be deemed to be rejected and expired.

Section 2.2.

  1. On or before each Settlement Date Counterparty or AUCD, as the case may be, will sell, transfer, and deliver the AUCD Purchased Cryptocurrency (CPC) or the Counterparty Purchased Cryptocurrency (CPTC), respectively, as specified to the other party, and such purchaser will purchase all the other party’s right, title, and interest in and to such cryptocurrency from the seller.
  2. Promptly following confirmation of each Purchase in accordance with Section 2.1:
  3. if Counterparty is purchasing the CPC from AUCD, then Counterparty shall immediately deliver, or shall direct its agents or designees to immediately deliver, the CPC Purchase Price to AUCD by transfer of immediately available funds or cryptocurrencies through the applicable Cryptocurrency Network to AUCD’s applicable location, wallet, address, account, or storage device as designated by AUCD at the time of purchase (each a “AUCD Wallet”) or;
  4. if AUCD is purchasing the CPC from Counterparty, then Counterparty shall immediately deliver, or shall direct its agents or designees to immediately deliver, the AUCD Purchased Cryptocurrency to AUCD by transfer of immediately available cryptocurrencies on the applicable Cryptocurrency Network to the applicable AUCD Wallet. In the alternative, if the AUCD Purchased Cryptocurrency is within the custody of the Custodian, AUCD may, at its sole election, instruct the Custodian to immediately transfer the AUCD Purchased Cryptocurrency directly to AUCD and Counterparty, without reservation or set off, acknowledges, and agrees to such immediate transfer by Custodian to AUCD’s designated AUCD Wallet under the direct direction of AUCD to
  • Promptly following payment of the Counterparty Purchase Price or transfer of the CPC by Counterparty, as set forth herein, (a) if Counterparty is purchasing the CPC from AUCD, then AUCD shall deliver, or shall direct its agents or designees to deliver, the CPC to Counterparty by transfer of immediately available cryptocurrencies on the applicable Cryptocurrency Network to Counterparty’s applicable location, wallet, address, account or storage device (each a “Counterparty Wallet”) or (b) if AUCD is purchasing the AUCD CPTC from Counterparty, then AUCD shall deliver or shall direct its agents or designees to deliver, the AUCD Purchase Price to Counterparty by transfer of immediately available funds or cryptocurrencies on the applicable Cryptocurrency Network the applicable Counterparty Wallet.
  1. In the event a Purchase or Sale is not settled by the Settlement Date, AUCD shall have the right to immediately terminate such Purchase or Sale in AUCD’s sole discretion and sell or retain any cryptocurrency in its sole discretion. AUCD shall retain the right to cancel any Settlement for any reason or no reason without liability.

Section 2.3    Term.

This Agreement shall remain in effect until the Settlement Date or completion of the Purchase or Sale unless terminated earlier by AUCD (“Termination”). Counterparty’s use of any of the services provided under this Agreement is deemed and acknowledged by Counterparty of its express consent, without reservation, to this Agreement. ALL SALES AND PURCHASES ARE FINAL, AS IS, NO WARRANTIES OR GUARANTEES IMPLIED OR EXPRESS BY AUCD EXCEPT AS STATED HERIN, NO REFUNDS WILL BE GIVEN, AND COUNTERPARTY HEREBY WAIVES ANY AND ALL RIGHTS TO SUCH.

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1.

AUCD represents and warrants to Counterparty, as of the date hereof and on each Settlement Date:

  1. AUCD is a corporation duly organized, validly existing and in good standing under the laws of its applicable jurisdiction. AUCD has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery by AUCD of this Agreement, the performance by AUCD of its obligations hereunder, and the consummation by AUCD of the transactions contemplated hereby have been duly authorized by all requisite company action on the part of AUCD.
  2. This Agreement has been duly executed and delivered by AUCD and (assuming due authorization, execution, and delivery by Counterparty), this Agreement constitutes a valid and legally binding obligation of AUCD, enforceable against AUCD in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally.
  3. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will conflict with, violate constitute a default under (a) any of AUCD’s organizational documents, (b) any statute, regulation, rule, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which AUCD is subject or by which any of its assets or properties are bound, or (c) any agreement, debt or other instrument to which AUCD is a party or by which any of its assets or properties are bound.
  4. Neither AUCD, nor any Person who controls AUCD or any Person for whom AUCD is acting as an agent or nominee, as applicable (1) bears a name that appears on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time; (2) is a Foreign Shell Bank; or (3) resides in or whose subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction.
  5. With respect to any Counterparty Purchased Cryptocurrency that AUCD sells, transfers, and delivers to Counterparty in any Purchase Order, AUCD is the lawful owner of such Counterparty Purchased Cryptocurrency with good and marketable title thereto, free, and clear of any and all Liens, and AUCD has the absolute right to sell, assign, convey, transfer, and deliver such Counterparty Purchased Cryptocurrency. Upon consummation of such purchase, Counterparty will be vested with good and valid title to such Counterparty Purchased Cryptocurrency free and clear of any and all Liens.
  6. AUCD is the lawful owner of each AUCD Wallet(s) and has good title thereto. Each AUCD Wallet is owned and operated solely for the benefit of AUCD, and no Person, other than AUCD, has any right, title, or interest in any AUCD Wallet(s).
  7. AUCD agrees, understands and acknowledges that (i) Counterparty engages in the bilateral purchase and sale of cryptocurrencies, including any such transaction contemplated by this Agreement, solely on a proprietary basis for investment purposes for its own account; (ii) if Counterparty transacts with AUCD it does so solely on a bilateral basis; and (iii) Counterparty is not providing and will not provide any fiduciary, advisory, exchange or other similar services with respect to AUCD, any person related to or affiliated with AUCD, or any transaction subject to this Agreement. AUCD further agrees, represents and warrants that (x) AUCD is solely responsible for any decision to enter into a transaction subject to this Agreement, including the evaluation of any and all risks related to any such transaction; and (y) in entering into any such transaction, AUCD has not relied on any statement or other representation of Counterparty other than as expressly set forth herein.

Section 3.2.

Counterparty hereby represents and warrants to AUCD, as of the date hereof and on each Settlement Date:

  1. If Counterparty is a company that Counterparty is duly organized, validly existing and in good standing under the laws of its applicable jurisdiction or if Counterparty is an individual that Counterparty does hereby legally bind its heirs, successors, representatives, estate, and any other individual or entity which may have rights to claim under the Counterparty individual by this Agreement. Counterparty has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Counterparty of this Agreement, the performance by Counterparty of its obligations hereunder and the consummation by Counterparty of the transactions contemplated hereby have been duly authorized by all requisite company action on the part of Counterparty.
  2. This Agreement has been duly executed and delivered by Counterparty and (assuming due authorization, execution, and delivery by AUCD), this Agreement constitutes a valid and legally binding obligation of Counterparty, enforceable against Counterparty in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally.
  3. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will conflict with, violate or constitute a default under (i) any of Counterparty’s organizational documents, (ii) any statute, regulation, rule, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Counterparty is subject or by which any of its assets or properties are bound, or (iii) under any agreement, debt or other instrument to which Counterparty is a party or by which any of its assets or properties are bound.
  4. Neither Counterparty, nor any Person who controls Counterparty, or any Person for whom Counterparty is acting as an agent or nominee, as applicable (i) bears a name that appears on the List of Specially Designated Nationals and Blocked Persons maintain by OFAC from time to time; (ii) is a foreign shell bank; (iii) resides in or whose subscription funds are transferred from or through an account in a Non-Cooperative Jurisdiction; or (iv) that the Counterparty is engaged in or has been engaged in any violation of any applicable law or criminal activity including, but not limited to: anti-money laundering, bribery or corruption, illegal activities, or similar.
  5. With respect to any AUCD Purchased Cryptocurrency, Counterparty sells, transfers, and delivers to AUCD in any Purchase Order, Counterparty is the lawful owner of such AUCD Purchased Cryptocurrency with good and marketable title thereto, free, and clear of any and all Liens and Counterparty has the absolute right to sell, assign, convey, transfer, and deliver such AUCD Purchased Cryptocurrency. Upon consummation of such purchase, AUCD will be vested with good and valid title to such AUCD Purchased Cryptocurrency which is free and clear of any and all Liens.
  6. Counterparty is the 100% lawful owner of each Counterparty Wallet(s) and has good title and marketable title thereto. Each Counterparty Wallet(s) is owned and operated solely for the benefit of the Counterparty, and no Person, other than Counterparty, has any right, title, or interest in any Counterparty Wallet(s).
  7. Counterparty agrees, understands, and acknowledges that (i) AUCD engages in the bilateral purchase and sale of cryptocurrencies, including any such transaction contemplated by this Agreement, solely on a proprietary basis for investment purposes of its own account; (ii) if AUCD transacts with Counterparty it does so solely on a bilateral basis; and (iii) AUCD is not providing and will not provide any fiduciary, advisory, exchange, or other similar services with respect to Counterparty, any person related to or affiliated with Counterparty, or for any transaction subject to this Agreement. AUCD EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS LIABILITY FOR CUSTODIAL SERVICES BY THE DIGITAL ASSET THIRD PARTY PROVIDER AND ONLY PROVIDES THE ACCESS TO THE DIGITAL ASSET CUSTODIAL SERVICE AS A CONVENIENCE TO COUNTERPARTY. SUCH SERVICES ARE PROVIDED AS IS WITH NO WARRANTIES OR GUARANTIES EXPRESSED OR IMPLIED. Counterparty further agrees, represents and warrants that (x) Counterparty is solely responsible for any decision to enter into a transaction subject to this Agreement, including the evaluation of any and all risks related to any such transaction; and (y) in entering into any such transaction, Counterparty has not relied on any statement or other representation of AUCD’s other than as expressly set forth herein. Cryptocurrencies are purchased and sold AS IS with no warranties or guarantees. Counterparty expressly acknowledges that it has not relied upon any statement or representation of the other Party to engage in any sale or purchase of cryptocurrency.
  8. Counterparty expressly agrees it will indemnify AUCD for any and all direct or indirect damages it sustains in relation to this Agreement, including, but not limited to, Taxes, attorney fees, AUCD internal staff and administrative fees, expert fees, and court fees. Counterparty expressly acknowledges and agrees without reservation that AUCD may take possession of Counterparty’s Wallet to indemnify AUCD for such damages.
  9. Counterparty expressly agrees to assume the risks of loss from a general suspension or prohibition in buying, selling, or owning Digital Assets by any governmental authority which either Party may be subject. Counterparty agrees to bear all costs associated with the refund or return of Digital Assets, should AUCD be required to comply with any regulatory obligations. Counterparty agrees that Digital Assets will not be safeguarded or insured in any way.

 

ARTICLE IV. MISCELLANEOUS

Section 4.1    Amendments; Waivers.

The provisions of this Agreement may be amended only if the other Party has consented in writing to such amendment, action or omission or as otherwise stated herein. No such consent with respect to any such action or omission shall operate as a consent to, waiver of, or estoppel with respect to, any other contemporary, prior, or subsequent action or omission. No failure to exercise and no delay in exercising any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy or power provided herein or by law or at equity.

Section 4.2    Assignment; Successors and Assigns.

This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors, heirs, personal representatives, and permitted assigns. Counterparty may not assign or delegate its rights or obligations hereunder without the prior written consent of AUCD, which may be withheld in AUCD’s sole discretion.

Section 4.3.    Severability.

Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

Section 4.4    Descriptive Headings and Construction.

The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Unless otherwise indicated, references to Articles and Sections herein are references to Articles and Sections of this Agreement.

Section 4.5    Governing Law.

This Agreement shall be governed by, construed and enforced in accordance with English law and construed under and in accordance with English law.

Section 4.6    Modification.

This Agreement may be modified by AUCD at any time or reason and such modifications will be deemed to be approved by Counterparty by Counterparty’s use of or continued use of services provided by AUCD.

Section 4.7    Arbitration.

Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

The number of arbitrators shall be one for amounts under 500,000 GBP or three for amounts over 500,000GBP.

The seat, or legal place, of arbitration shall be London, England.

The language to be used in the arbitral proceedings shall be English.

The governing law  of the contract shall be the substantive laws of England and Wales.

 

Section 4.8    Confidentiality.

Each of AUCD and Counterparty hereby agrees to not disclose, and to otherwise keep confidential, the transactions contemplated hereby, the existence or nature of any relationship between the Parties, the name of the other Party or the fact that the Parties engaged in any transaction (“Confidential Information”), provided, however, that each Party may disclose Confidential Information to its directors, officers, members, employees, agents, affiliates, and professional advisers or to financial institutions providing services to a Party in connection with any applicable anti-money laundering or compliance requirements . If either Party is required by law, rule, or regulation, to disclose such information (the “Required Party”), the Required Party will, to the extent legally permissible, provide the other Party (the “Subject Party”) with prompt written notice of such requirement so that such Subject Party may seek (at its sole cost and expense) an appropriate protective order or waive compliance with this Section. The Subject Party shall promptly respond to such request in writing by either authorizing the disclosure or advising of its election to seek such a protective order, or, if such Subject Party fails to respond promptly (or responds promptly but either waives compliance with this Section, or a protective order is not obtained), then, such disclosure shall be deemed approved, and the Required Party may disclose that portion of the Confidential Information that is required to be disclosed by applicable law. The confidentiality obligations set forth in this Section shall survive the termination or expiration of this Agreement.

Section 4.9    Entire Agreement.

This Agreement and each Purchase Order executed on or after the date hereof contain the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, written or oral, among the Parties with respect thereto.

Section 4.10    No Third-Party Beneficiary.

The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted assignees, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person or entity. Parties specifically disclaim any third-party benefit.

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