For all intents and purposes, OCNEX shall mean and include below –
DotBit Limited, a Maltese Registered Company with Office Address situated at: 48, Triq Stella Maris, Sliema, SLM 1765, Malta, which owns and operates the ‘OCNEX’ VFA Exchange Platform in Malta, hereinafter referred to as “DotBit Limited” or “OCNEX” or “company”, which term shall refer to and include its owners, its subsidiaries and affiliated companies, directors, investors, employees, officers, representatives, affiliates, or other related parties.
‘Algorithm’ – any well-defined procedure and set of unambiguous instructions that allows any computer to solve complex problems on the platform;
‘‘Beneficial Owner’’ – shall have the same meaning assigned to it under regulation 2 of the Prevention of Money Laundering and Funding of Terrorism Regulations and in terms of Article 2 of the Maltese Subsidiary Legislation 373.01 and ‘Beneficial Ownership’ shall be construed accordingly;
‘Client Deposit Money/Client Money’ – means the virtual appropriation of the initial client deposit money into the Bank Account of the company;
‘Client Asset Account’ or ‘Account’ entails the overall term for all wallets and accounts that the client holds with the company [including both FIAT and Crypto-wallets] including a short profile of the Client’;
‘’Company’’ shall mean –DotBit Limited, a Company based in Malta with registered office address at: 48, Triq Stella Maris, Sliema, SLM 1765, Malta;
‘’Competent Authority’’ means the Malta Financial Services Authority established by the Malta Financial Services Authority Act;
‘Computerised System’ – A system including the input of data, electronic processing and the output of information to be used in the day-to-day conduct of the operation of the platform;
‘Control of Assets’ means the company’s mandate over the client’s asset account ‘including management of money’ or the instance when the company holds a power of attorney by which he can control the client/customer’s assets. For the purposes of this Agreement, the company will not be considered to be holding or controlling Clients’ Money or Customers’ Assets if he does not directly handle the Clients’ Assets;
’Court’ means the Maltese Civil Court, First Hall;
‘Dealing in Own Account’: refers to trading against proprietary capital i.e. the actual buying and selling from the company. ‘Dealing on own account’ can be done in two ways: via portfolio held in a Crypto-wallet or on a matched-principal basis.
‘Directive’ shall refer to the Directive (EU) 2018/843 of the European Parliament and of the Council of 30th May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU；
‘DLT’ means Distributed Ledger Technology;
‘DLT Exchange’’ means any trading and, or exchange platform or facility, whether in Malta or in another jurisdiction, on which any form of VFA Asset may be transacted in accordance with the rules of the platform or facility;
“Force Majeure” shall mean and include any cause arising from or attributable to acts, or events, beyond the reasonable control of OCNEX, including natural calamity, strikes, terrorist action or threat, civil commotion, riot, crowd disorder, invasion, war, threat of or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, structural damage, epidemic or other natural disaster, calamity, attacks including through computer viruses, hacking, denial of service attacks, ransomware or other manmade disruptions or any law, order enactment, statutory direction, legislation, regulation, rule or ruling of government or any court of law or of a Government or regulatory authority.
‘’Person’’ means a natural or legal person in terms of law;
OTC’ means ‘over-the-counter’ or ‘off-exchange’ trading and is primarily conducted between two parties without the supervision of a VFA Exchange.
‘OTC Trading’ means ‘over-the-counter’ trading through an intermediary platform known as a ‘dealer network’.
‘OTC Platform’ means a VFA Platform that inherently assumes responsibility and determines the price of bids/trades;
‘’VFA Exchange’’ means a DLT Exchange operating in or from within Malta, on which only Virtual Financial Assets may be transacted in accordance with the rules of the platform or facility;
‘’VFA Exchange Operator’’ means a person or persons who manages and, or operates the business of a VFA Exchange and may be the VFA Exchange itself;
‘’VFA OTC Platform Operator’’ means a person or persons who manages and, or operates the business of a VFA OTC Platform;
‘’Virtual Financial Asset’’ or ‘’VFA’’ means any form of digital medium recordation that is used as a digital medium of exchange, unit of account, or store of value and that is not:
- a) Electronic Money
- b) A Financial Instrument
- c) A Virtual Token
‘’Virtual Token’’ means a form of digital medium recordation that has no utility, value or application outside of the Exchange platform on which it was issued and may only be redeemed for funds on such platform directly by the issuer of such VFA asset. Provided that electronic money shall be excluded from this definition;
“User” or “Client” Persons availing of the OCNEX Services (as defined below), directly or indirectly, are referred to herein, as “Users”.
“OCNEX Platform” shall mean and include OCNEX Android App, OCNEX iOS App (collectively, “OCNEX App”) or OCNEX Web app (“Web version”) and OCNEX website “www.ocnex.io” (“OCNEX Website”) and other web assets on the OCNEX.io domain. Collectively along with the OCNEX Developer Portal, Public APIs and secure authentication for OCNEX Users is referred to as the “OCNEX Platform”;
- RISK WARNING
Trading in Virtual Financial Assets on Crypto-OTC or VFA Exchange Platforms involves a high degree of risk to your capital. Virtual Financial Assets may not be appropriate for all investors and you should seek independent advice if necessary. Trading with Virtual Financial Assets may result in total loss of your investment.
- GENERAL INFORMATION
This agreement is between you (hereinafter known as ‘The Client or User’) and the VFA OTC Trading & Exchange Platform operator. (Operating the: VFA OTC Trading & Exchange Platform collectively known as ‘OCNEX’).
As this is a legally binding contract, the Client is cordially requested to carefully read through this agreement and related notices before using any of OCNEX’s Services.
By registering, accessing or using OCNEX Platform, the Client agrees to the ‘Terms and Conditions’ as laid out in this User Agreement.
If any Client disagrees with this User Agreement, the client shall not proceed to initiate account registration with OCNEX and any of its services.
To guarantee transparency and client-protection, OCNEX undertakes to have a robust and effective Anti-Money Laundering Policy. For all intents and purposes, OCNEX endeavors to adhere to the provisions of the Amendments to the Fifth Money Laundering Directive [Directive (EU) 2018/843].
- OCNEX ANTI-MONEY LAUNDERING [AML] DISCLAIMER
OCNEX is committed to improve the global fight against Money Laundering and terrorist financing across the European Union. In this connection, the Company has endeavored to carefully ensure all of its internal AML Procedures are in accordance with the amendments to the Fifth Money Laundering Directive.
It is to be noted that Virtual Currencies pose stern challenges to regulators due to their anonymity and sophisticated planning which could allow for potential misuse for criminal purposes.
Considering the new amendments, entities providing services that are in charge of holding, storing and transferring virtual currencies [applicable for both cryptocurrencies and tokens] will be classified as new obliged entities [in terms of the existing Fourth Money Laundering Directive].Member States are under the obligation to transpose this colloquially termed ‘Fifth’ Money Laundering Directive into national law within an 18-month period.
According to Article 47 paragraph 1 of the new Directive, Member States shall ensure that providers of Exchange Services between Virtual Currencies and FIAT Currencies, and custodian wallet providers, are registered, that currency exchange and check cashing offices, and trust or company service providers are licensed or registered, and that providers of gambling services are regulated. OCNEX endeavors to obtain all the necessary licensing accordingly in terms of all EU AML Guidelines.
- AGREEMENT CONDITIONS
OCNEX reserves the right to modify or change the terms and conditions of the agreement at any time and at its sole discretion. OCNEX will provide notice of these changes by updating the revised Terms & Conditions.
By registering to use a OCNEX’ Client Asset Account [for the Operation of both an VFA OTC Platform and VFA Exchange], the Client affirms that he/she is at least 18 years old individual, legal person or other organization with full legal capacity to enter into this User Agreement between you (i.e. The Client) and OCNEX.
If the Client is not at least 18 years old, the guardian shall undertake all consequences resulting from your actions and OCNEX shall have the right to cancel or freeze your Client Asset Account in addition to filing claims against you and your guardian for compensation.
Your eligibility to access OCNEX Services also depends on the country in which you reside.
Each client shall have one client assent account only. Multiple account with same KYC document is not eligible for registration of additional accounts
- PROHIBITION OF USE
By accessing and using OCNEX and any of its services, the Client acknowledges and declares that he/she is not on any trade or economic sanctions lists, such as the United Nations Security Council Sanctions List and its equivalent. You may not use your OCNEX Account to engage in the following categories of activity (“Prohibited Uses”). The specific types of use listed below are representative, but not exhaustive
- Unlawful Activity
- Intellectual Property Infringement
- Defamation and abuse
The content of this Agreement shall not be excluded from the laws of the country under which the user belongs. OCNEX maintains its stance that prohibited users are not to use or access OCNEX and any of its services/ platform.
- DESCRIPTION OF SERVICES & BUSINESS ACTIVITY
This user agreement regulates the activities of OCNEX:
OTC TRADING – The OTC-Trading Platform Service of OCNEX provides an online virtual financial asset trading platform via a sophisticated OCNEX platform for products commonly known as crypto-tokens, digital tokens or cryptocurrencies.
When a user enters into the OTC-Trading Platform Service on the platform, the user acknowledges and consents that he/she is transacting with OCNEX as a counterparty, henceforth meaning that for all intents and purposes, OCNEX is dealing on own account and the prices are set by OCNEX itself.
VFA EXCHANGE- The VFA Exchange Service of OCNEX provides an online virtual financial asset trading platform (crypto to crypto, fiat to crypto, and crypto-fiat) for products commonly known as crypto-tokens, digital tokens or cryptocurrencies.
When a user enters the VFA Exchange Service on the platform, the user acknowledges that he or she is transacting with other users of the platform as a counterparty and bids are matched on a non-discretionary basis with counterparty.
In this connection, OCNEX provides the platform to match the orders and prices are therefore set by the market-forces of supply and demand.
- PROVISIONS APPLICABLE TO BOTH SERVICES
The Client must register and open a Client Asset Account with OCNEX and for exchanging Virtual Financial Assets (VFAs) prior to commencement of trading on the OCNEX platform.
All Crypto-Wallets will be managed by the company.
Client may request the withdrawal of the virtual financial asset (VFA) and eventually of the FIAT currency subject to certain terms and conditions.
OCNEX strive to maintain the accuracy of information posted on its platform however it cannot guarantee the accuracy, suitability, reliability, completeness, performance or fitness for purpose of the content through the platform and will not accept liability for any loss or damage that may arise directly or indirectly from the content.
Information on OCNEX’s Platform can be subjected to change without notice and is provided for the primary purpose of facilitating users to arrive at independent decisions.
All users of OCNEX must understand that there are risks involved in the usage of OTC Trading Platforms & VFA Exchanges. OCNEX encourage all users to exercise prudence and trade responsibly within their own means.
While OCNEX emphasizes online interface security to ensure the continuity and security of its services (announcements will be made in event of downtime/maintenance), it will be non-accountable to Act of God, Force Majeure, malicious targeted hacking, terrorist attacks and other unforeseen circumstances.
OCNEX reserve the right to cancel, rollback or block transactions of all type on its platform in event of abnormal transactions or its internal AML policy.
OCNEX will not ask for any password or PIN from its users nor ask users to transfer funds that are not listed on its OTC-trading or VFA Exchange platform.
By using OCNEX and any of its services, the Client declares that all information to OCNEX in connection with these Terms & Conditions are true, accurate and complete.
- USER IDENTITY VERIFICATION
With registration of a Client Asset Account on OCNEX, the Client agrees to share personal information requested for the purposes of identity verification. This information is used specifically for the detection of money laundering, terrorist financing, fraud and other financial crimes on the OCNEX platform and is fully compliant with recent amendments to the Fourth Money Laundering Directive issued by EU.
parliament specifically pertaining to Beneficial Ownership, Transparency and KYC regulations). OCNEX endeavors to retain and obtain this personal information in accordance with GDPR.
In addition to providing this information, to facilitate compliance with global industry and government standards for data retention, the Client agrees to permit OCNEX to keep a record of such information for the lifetime of your account plus 10 (ten) years beyond account closing.
The Client also authorizes OCNEX to make inquiries, either directly or through third parties, that are deemed necessary to verify the Client’s identity or to protect the Client and/or OCNEX against financial crimes such as fraud, etc.
- CLIENT MONEY/ FUNDS
All relevant Client Deposits shall be kept separate from money belonging to OCNEX in a Client Asset Account, in accordance with applicable law and regulations, unless and until such amounts are returned to the Client, become due and payable to OCNEX. In accordance with this Agreement or are otherwise paid away or transferred in accordance with applicable law and regulations.
By accepting the above-mentioned Terms and Conditions, the Client hereby grants to the company the Authority to open and establish a ‘Client Asset Account’ and the Client agrees to grant the company the right to ‘control’ assets [including ‘VFAs’ and ‘Money’] as defined in the ‘Preliminary’ part of this Agreement.
- KNOW YOUR CUSTOMER AND ON-BOARDING
OCNEX may adhere to strict KNOW YOUR CUSTOMER (KYC) policy. Please refer the KYC Policy. OCNEX may do remote know your customer (KYC) procedure and video on boarding.
This Mandatory Verification setup may be created by any authorized representative of (such as a third-party KYC Service Provider) possessing all the relevant and necessary credentials to conduct the KYC/Due Diligence compliance.
The Client is bound to follow ALL on-screen instructions and adhere to ALL requirements that emanate from the on-boarding accordingly.
- AUTHENTICITY & SELF-RESPONSIBILITY OF IDENTITY INFORMATION.
‘Client Asset Account’ Usage Requirements & Registration.
All users must register for a OCNEX Client Asset Account before using the site via our standard Application procedure. To register for an account, the Client must provide his/her real name, email address and required KYC documents.
Depending on certain conditions and in our sole discretion, we may refuse to open an account for you. No Orders can be executed until a Client Asset Account is opened and cleared funds have been deposited in accordance with this Agreement.
Where OCNEX is required under applicable law and regulations to report transactions with the Client to a competent authority or otherwise, the Client must obtain and provide OCNEX with any information as OCNEX may require determining the Client’s national client identifier. The Client shall not be permitted to place Orders unless and until it has provided the information required.
In order to open a Client Asset Account, the Client must fully complete the registration process.
OCNEX is obliged to carry out all the searches and inquiries that OCNEX deem to be appropriate to assess the Client’s Valid identity and/or to carry out any anti money laundering controls which may be required in terms of the applicable law. This information may be also used for the prevention of money laundering or terrorism financing as well as for the management of the Client Asset Account. The Client authorizes OCNEX to use the information to perform the above checks in relation to this Agreement.
The Identity Verification information which may be requested can generally include but not limited to the:
- Full Name,
- Email Address,
- Contact Information,
- Telephone Number,
- Government Issued ID/Passport,
- Date of Birth
- Proof of address,
- Bank account details,
- Information on the User’s trades, and
- Photographs and images.
In providing this required information, the Client confirms that it is accurate and authentic. Post-registration, the Client must guarantee that the information is truthful, complete and updated in a timely manner with any changes. If there is any reasonable doubt that any information provided by you is wrong, untruthful, outdated or incomplete, OCNEX shall have the right to send you a notice to demand corrections, remove relevant information directly and, as the case may be, terminate all or part of OCNEX Service to the Client.
The Client shall be solely and fully responsible for any loss or expenses incurred during the use of OCNEX Service if the Client cannot be reached through the contact information provided.
The Client hereby acknowledges and agrees that he/she has the obligation to keep all information provided up to date if there are any changes.
OCNEX may or may not accept the Application in its absolute discretion, including if the Client fails to pass the relevant appropriateness checks (whether the Client would like to proceed). If the Client application is accepted by OCNEX, the Client shall be notified of its Client Asset Account.
The Client may only start trading and/or exchanging with OCNEX after the Initial Deposit is credited to the Client Asset Account and such deposit has been cleared.
OCNEX shall be authorized to act upon any digital instructions transmitted by the Client. In this connection, OCNEX shall be entitled to carry out any instructions or Orders as per client’s instructions.
The Client may request OCNEX to make payments by debiting the Account to the extent cleared funds are available at the time of the request (electronically via the OCNEX platform)
The Initial Deposit and any additional funds deposited by the Client (together, Client Deposits) shall be credited to the Client Asset Account as the case may be.
Any crediting or debiting of Client Deposits to the Client Asset Account is net of any bank fees, commissions or other charges or costs (including any applicable taxes, including withholding taxes) and you hereby expressly authorize OCNEX to make any such deductions.
OCNEX may receive interest in respect of the Client Asset Account but will not pay any portion of such amounts to the Client. The Client hereby waives any right to receive interest on any positive balance of Client Deposits on the Client Asset Account.
All Client Fiat Deposits shall be treated as ‘Client Money’ in accordance with applicable law and regulations. The Client Asset Account shall be denominated in EUR/USD/GBP/ any other currency determined by OCNEX (‘Base Currency’) by default.
All gains, earnings, losses, costs and liabilities made or incurred by the Client under or in relation to any VFA or any Service provided by OCNEX or otherwise in connection with this Agreement (including any fees charged by OCNEX hereunder) shall be credited or debited to the Client Asset Account, as applicable.
The Client hereby expressly authorizes OCNEX to deduct any such amounts from any Client Deposits held in the Client Asset Account by OCNEX on the Client’s behalf.
The Client may, at any time, withdraw funds (‘Withdrawn Funds’) from the Client Asset Account by submitting a request to OCNEX (‘Withdrawal Request’). The amount requested must be available in Client Asset Account. OCNEX may, at its discretion, elect to withhold payment (or deduct an amount from it, as applicable) if:
- OCNEX is required by applicable law or regulations to deduct or withhold such payment; or
- there is an unresolved dispute between OCNEX and the Client in connection with this Agreement or any related contract in respect of such funds.
- OCNEX will only pay withdrawn funds to the Client Asset Account or payment method that the Client uses to fund their own Client Asset Account, unless the Client has notified a change in their payment details in writing in advance and this is in compliance with applicable law and regulations, in particular anti-money laundering controls.
- The Client shall make Client Deposits and submit withdrawal requests to OCNEX using the deposit or withdrawal function on the Platform. The Client shall be solely responsible for the safekeeping of the OCNEX Client Asset account and password/ PIN on his/her own, and he/she shall be responsible for all activities under the log-in, OCNEX account and password (including but not limited to information disclosure, information posting, consent to or submission of various rules and agreements by clicking on the Web App, online renewal of agreement, ).
The Client hereby covenants that:
- he/she will notify OCNEX immediately if he/she is aware of any unauthorized use of the OCNEX account and password/ PIN by any person or any other violations to the security rules;
- he/she will strictly observe the security, authentication, dealing, charging, withdrawal mechanism or procedures of the platform/service; and
- he/she will log out from the platform by taking proper steps at the end of every
OCNEX will not be responsible for any loss or consequences caused by the Client’s failure to comply with the above terms and conditions.
- REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CLIENT
The Client represents and warrants to OCNEX that:
- His/her conduct will not be in violation of public interests, public ethics or others‘ legitimate interests,
- He/she will not constitute evasion of payable taxes or fees and will not violate this agreement or relevant rules.
- all information supplied by the Client to OCNEX is complete, true, accurate and not misleading in any material respect;
- As previously stated, if the Client is an individual, the Client is at least 18 years old ;
- if the Client is a body corporate, unincorporated association, trust or other legal structure, the Client is validly existing in accordance with applicable law and regulations;
- the Client has entered into this Agreement and will enter into any transaction thereunder as a principal and not as another party’s agent or representative;
- the Client is not subject to any law or regulation preventing it from entering into this Agreement or transaction thereunder. In this regard, the Client is not a resident and/or citizen of the United States of America, or any other jurisdiction where it may be unlawful to access the Platform or trade with OCNEX;
- the Client has obtained all necessary consents, licenses and authorizations and has full power and authority (in accordance with its constitutional and organizational documents, where relevant) to enter into this Agreement and any transaction thereunder;
- the Client follows all laws and regulations to which the Client is subject in relation to this Agreement and any transaction thereunder including, without limitation, all tax laws and regulations, exchange control requirements, and registration requirements;
- this Agreement and any transaction entered into thereunder create valid and binding obligations which are enforceable against the Client in accordance with their terms in the jurisdiction in which the Client is resident and do not violate the terms of any law, regulation, order, charge, agreement or instrument by which the Client is bound or to which the Client’s assets are subject;
- the Client is fully aware of the financial and other risks involved with trading under this Agreement and is willing and financially able to sustain a total loss of funds resulting from the trading and transactions entered into thereunder.
- the Client has consistent and uninterrupted access to the internet and the email address, mobile number provided to OCNEX during the initial Application procedure;
- the Client will act in accordance with applicable law and regulations regarding market abuse, manipulation or misconduct, insider dealing and similar offenses, as applicable (including Regulation (EU) no 596/2014 of the European Parliament and of the council of 16 April 2014 on Market Abuse (market abuse regulation) and any applicable provisions of Maltese criminal law);
- the Client will not alter, distort or otherwise manipulate the relevant market or Underlying in relation to a transaction entered into under this Agreement;
- the Client will promptly notify OCNEX of the occurrence of any event of default or potential event of default or any other breach of this Agreement; and
- the Client is not subject to a clearing obligation pursuant to the European Market Infrastructure Regulation (648/2012/EU) (‘EMIR’) and, for the purposes of EMIR, is either a non-financial counterparty (as such term is defined in EMIR) or an entity established outside the EU that, to the best of its knowledge and belief, would constitute a non-financial counterparty, if it were established in the EU.
- If the Client violates the foregoing promises and thereby causes any legal consequence, the Client shall independently undertake all of the legal liabilities in his/her own name and indemnify OCNEX from all actions, claims, or costs arising from such violation.
- The Client will not use any data or information displayed on the OCNEX Platform for commercial purposes without the prior digital/electronic consent of OCNEX.
- using a device, software or subroutine to interfere with the OCNEX Platform
- overloading network equipment with unreasonable data loading requests
- executing malicious sales or purchases on the market
- By accessing the OCNEX Service, the Client agrees that OCNEX shall have the right to unilaterally determine whether he/she has violated any of the above covenants and take actions to apply relevant rules without receiving the Client’s consent or giving prior notice to him/her. Examples of such actions include, but are not limited to:
- block and close order requests
- freezing your Client Asset Account
- reporting the incident to authorities
- publishing the alleged violations and actions that have been taken
- deleting any information, you published that is in violation
The Client consents to the OCNEX platform’s Compliance/KYC checks and procedures and under no circumstance may OCNEX refund any money or grant access to the platform before all necessary procedures have been vetted and consent is formally authorized for the Client to access the platform/service.
Without prejudice to the aforesaid, any funds which are kept in the Client Asset Account will be ‘frozen’ until the Compliance procedure is completed and under no circumstance may they be ‘exchanged’ or ‘withdrawn’.
If your alleged violation causes any losses to a third-party, you shall solely undertake all the legal liabilities in your own name and hold OCNEX harmless from any loss, fine or extra expenses. If, due to any alleged violation OCNEX incurs any losses, is claimed by any third party for compensation or suffers any punishment imposed by any administrative authorities, you shall indemnify OCNEX against any losses and expense caused thereby, including reasonable attorney’s fee.
The Client acknowledges and agrees that the above representations and warranties have been a material inducement to the decision of OCNEX to enter into this Agreement with the Client.
In case of any abnormal behavior, fluctuation or delay in transactions beyond OCNEX’s control then for such instances OCNEX is not liable for any obligation under this agreement.
- DISPUTE RESOLUTION
OCNEX reserve the right to resolve issues and disputes at its sole discretion. Some issues include infringement of others’ rights, violation of laws and regulations, abnormal trades and others not explicitly mentioned in the Terms. Users agree to bear the costs arising from the process of dispute resolution.
Any dispute arising out of or in connection with this Agreement (a “Dispute”) shall be referred to and finally resolved by arbitration under the Arbitration Rules of the Maltese Arbitration Act [Cap. 387 of the Laws of Malta]. The Tribunal shall consist of one (1) arbitrator to be appointed by the Chairman of Malta Arbitration Center. The place and seat of the arbitration shall be at the Malta Arbitration Center, Valletta.
The language to be used in the arbitration proceedings will be English. Any award of the tribunal shall be binding from the day it is made, and the parties hereby waive any right to refer any question of law and any right of appeal on the law and/or merits to any court. Judgment on the award rendered by the tribunal may be entered in any court of competent jurisdiction.
Each party will pay its own arbitration fees due for any Dispute. If you prevail on any claim for which you are legally entitled to legal fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, OCNEX will not seek to have you pay its legal fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous.
The parties agree to keep confidential all matters relating to the arbitration, including related court proceedings, to the greatest extent practicable. For purposes of this arbitration provision, references to the parties also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized Users or beneficiaries of the OCNEX Services. Nothing in this shall be construed as preventing either party from seeking conservatory or similar interim relief in any court of competent jurisdiction. If any provision of this is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
Provision of Service
OCNEX will provide OCNEX Service at an “as is” and “commercially available” condition and does not offer any form of warranty with regards to the Service’s reliability, stability, accuracy and completeness of the technology involved. OCNEX serve merely as a venue of transactions where coin-related information can be acquired, and coin-related transactions can be conducted.
OCNEX cannot control the quality, security or legality of the coin involved in any transaction, truthfulness of the transaction information, or capacity of the parties to any transaction to perform their obligations under the rules. The Client must carefully consider the associated investment risks, legal status and validity of the transaction information and investment decisions prior to your use of the OCNEX Services provided.
- LIMITATION OF LIABILITY
Release of OCNEX Liability: If you have a dispute with one or more users of the OCNEX Services, you agree that neither we nor our affiliates or service providers, nor any of our respective officers, directors, agents, joint ventures, employees and representatives will be liable for any claims, demands and damages (actual and consequential) of any kind or nature arising out of or in any way connected with such disputes.
OCNEX shall not be liable for any Loss caused to the User due to discontinuation of any cryptocurrency that is being offered through the OCNEX Exchange Services.
OCNEX shall not be liable for any disruption of service, whereby the User is denied access to their cryptocurrencies, including those stored on the User Account.
OCNEX shall not be liable for any Loss caused to the User through loss of any cryptocurrency stored on the User’s Client Asset Account for any reason whatsoever, save and except due to a willful and malicious commission or omission by OCNEX directly resulting in such loss.
OCNEX shall not be liable for any discontinuation, alteration, suspension or termination of any part of the OCNEX Services caused or occasioned any Force Majeure event or any change in applicable Law with respect to cryptocurrencies.
User shall not be entitled to any damages for any reason whatsoever including for consequential or compensatory damages against OCNEX for any reasons including suspension, cancellation or termination of the User Account or for cessation of OCNEX Services. The User shall only be entitled to refund / recovery of the cryptocurrencies credited to the User Account, subject to deductions towards dues owed to OCNEX and other legal, regulatory or statutory dues or those stipulated under applicable Law, and to the permissibility of such refund or recovery under applicable Law.
In the event that any cryptocurrencies stored in any User Account are seized, or OCNEX is unable to access or return the same to User, OCNEX shall not be held liable or responsible for the same. The User is cautioned to avail of the OCNEX Services subject to the above risk. At no point in time will OCNEX, its directors, shareholders, employees, representatives, officers, affiliates or assigns be held liable for any Claims whatsoever for cessation of services or termination of any part of the OCNEX Services or any disruption with respect to access to any User Accounts.
All Claims shall be limited to the cryptocurrencies lying in the relevant User Account, subject to the above-mentioned conditions.
THE MAXIMUM CUMULATIVE LIABILITY OF OCNEX IN ANY EVENT, FOR ANY CLAIM, DAMAGES, TORT SHALL BE LIMITED TO THE CRYPTOCURRENCIES ACTUALLY RECEIVED FROM THE USER, AS CONSIDERATION OR FEES FOR THE SERVICES RENDERED BY OCNEX IN RELATION TO THE APPLICABLE TRANSACTION TO WHICH THE CLAIM RELATES. IF THE CLAIM DOES NOT RELATE TO ANY TRANSACTION IN PARTICULAR, THEN OCNEXS MAXIMUM CUMULATIVE LIABILITY SHALL BE LIMITED TO THE CRYPTOCURRENCIES ACTUALLY RECEIVED FROM THE USER, AS CONSIDERATION OR FEES FOR THE SERVICES RENDERED BY OCNEX IN RELATION TO THE TWO TRANSACTIONS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM IS MADE BY THE USER.
No Liability for Breach- OCNEX will not be liable for any breach of the Agreement where the breach is due to abnormal and unforeseeable circumstances beyond our control, the consequences of which would have been unavoidable despite all effects to the contrary, nor are we liable where the breach is due to the application of mandatory legal rules.
Limitation of loss– In addition to the liability cap above, in no event shall OCNEX, our affiliates or our service providers, or any of our or their respective officers, directors, agents, employees or representatives, be liable for any of the following types of loss or damage arising under or in connection with this Agreement or otherwise:
(i) any loss of profits or loss of expected revenue or gains, including any loss of
anticipated trading profits and / or any actual or hypothetical trading losses, even if we are advised of or knew or should have known of the possibility of the same.
(ii) any loss of or damage to reputation or goodwill; any loss of business or opportunity, customers or contracts; any loss or waste of overheads, management or other staff time; or any other loss of revenue or actual or anticipated savings, even if we are advised of or knew or should have known of the possibility of the same;
(iii) any loss of use of hardware, software or data and / or any corruption of data; including but not limited to any losses or damages arising out of or relating to any inaccuracy, defect or omission of digital currency price data; any error or delay in the transmission of such data; and / or any interruption in any such data;
(iv) any loss or damage whatsoever which does not occur directly from our breach of this Agreement; and / or
(v) any loss or damage whatsoever which is in excess of that which was caused as a direct result of our breach of this Agreement (whether or not you are able to prove such loss or damage).
- TERMINATION OF THIS AGREEMENT
OCNEX shall have the right to keep and use the transaction data or other information related to such Client Asset Accounts. The above account controls may also be applied in the following cases but not limited to:
- The Client Asset Account is subject to a governmental proceeding, criminal investigation or other pending litigation
- We detect unusual activity in the Client Asset Account
- We detect unauthorized access to the Client Asset Account.
- We are required to do so by a court order or command by a regulatory/government authority.
- We reasonably suspect you of acting in breach of this Agreement;
- We suspect money laundering, terrorist financing, fraud, or any other financial
- Use of your Client Asset Account is subject to any pending litigation, investigation, or government proceeding and/or we perceive a heightened risk of legal or regulatory non-compliance associated with your Account activity.
- We take any action that may circumvent our controls such as opening multiple Accounts or abusing promotions which we may offer from time to time.
In case of any of the following events, OCNEX shall have the right to directly terminate this agreement by canceling the Client’s Asset Account, and shall have the right to permanently freeze (cancel) the authorizations of the Client’s Asset Account on OCNEX and withdraw the corresponding OCNEX Account thereof:
- after OCNEX terminates services to the Client,
- the Client allegedly registers or registers in any other person’s name as OCNEX user again, directly or indirectly;
- the main content of user’s information that the Client has provided is untruthful, inaccurate, outdated or incomplete;
- when this agreement (including the rules) is amended, the Client expressly states and notifies OCNEX of his/her unwillingness to accept the amended service agreement;
- any other circumstances where OCNEX deem it should terminate the services.
Should the Client Asset account be terminated, the account & transactional information required for meeting data retention standards will be securely stored for ten (10) years. In addition, if a transaction is unfinished during the account termination process, OCNEX shall have the right to notify the Client’s counterparty of the situation at that time.
- REMAINING FUNDS AFTER ACCOUNT TERMINATION (NORMAL)
Once the Client Asset account is closed/withdrawn, all remaining balance (which includes charges and liabilities owed to OCNEX) on the account will be payable at once to OCNEX. Upon payment of all outstanding charges to OCNEX (if any), the user will have the reasonable time to withdraw all funds from the account.
- REMAINING FUNDS AFTER CLIENT ASSET ACCOUNT TERMINATION (FRAUD/AML/VIOLATION OF TERMS)
OCNEX maintain full custody of the funds and user data/information which may be turned over to the authorities in event of account suspension/closure arising from fraud investigations, AML investigations or violation of OCNEX’s Terms (e.g. trading on OCNEX from a sanctioned country).
- COMPLIANCE WITH LOCAL LAW
It is the responsibility of the user to abide by local laws in relation to the legal usage of OCNEX services in their local jurisdiction. Users must also factor, to the extent of their local law all aspects of taxation, the withholding, collection, reporting and remittance to their appropriate tax authorities.
All users of OCNEX and any of its services acknowledge and declare that the source of their funds come from a legitimate manner and are not derived from illegal activities. OCNEX maintain a stance of cooperation with law enforcement authorities globally and will not hesitate to seize, freeze, terminate the Client Asset Account and funds of users which are flagged out or investigated by legal mandate.
- FORCE MAJEURE
OCNEX services are offered only on the digital domain, which is subject to risks including offensive attacks. OCNEX shall not be liable for any Loss caused to the User’s account or the monies or cryptocurrencies accrued therein if the same arises due to any Force Majeure event, including commissions or omissions by third parties, forces of nature, offensive attacks on OCNEX servers or on the personal devices of the users, changes in applicable Law, or any Loss caused by conditions or events beyond the reasonable control of OCNEX.
The above limitation on liability includes any Force Majeure event set out hereunder including acts of god; fire, act of terrorists, act of civil or military authorities, civil disturbance, war, strike or other labor dispute, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond reasonable control of OCNEX; offensive attacks including virus attack, hacking, denial of service attack or theft of the personal devices of the User resulting in Loss to the account.
OCNEX shall not be liable for any Loss caused to User due to a data breach of confidential information of the User, including of the User account details or User password, including when such breach has occurred due to the User sharing such details with third parties or due to the User’s failure to follow reasonable due diligence. OCNEX shall also not be liable or responsible for any disclosure by User of any User Account details, including on account of a phishing attack or other third-party disruption
- GDPR AND CONFIDENTIALITY
OCNEX processes all personal information in accordance with applicable law and regulations relating to the processing, Privacy, and use of personal data in terms of the: GDPR (as applicable to the Client and/or Services provided under this Agreement) (‘General Data Protection Regulations’).
For the purposes of GDPR, the Data Controller is OCNEX in relation to any personal data (as defined in Maltese Data Protection Laws, and GDPR) provided by or held in connection with the Client.
OCNEX may collect, hold and process personal information about the Client from the way in which the Client engages with OCNEX (such as by ﬁlling in the Application, placing Orders, or if the Client contacts OCNEX by post, email, telephone, in person or by any other means), through the Client’s interactions with OCNEX and/or Services that the Client holds or takes out with OCNEX.
OCNEX and copy of which may be provided in hard copy to the Client free of charge upon prior digital/electronic request.
OCNEX relies on the following legal basis to process and use the Client’s personal information:
- processing is necessary for the performance of the Services provided to the Client under this Agreement;
OCNEX has security procedures covering the storage and disclosure of the Client’s personal information to prevent unauthorized access of any Client personal information and to comply with GDPR.
Neither party may disclose to any person any information relating to the business, investments, finances or other matters of a confidential nature of the other party of which it may come into possession in connection with this Agreement and its performance by the other party, and each party shall use all reasonable endeavors to prevent such disclosure, except as may be required by any applicable law, rule or regulatory, law enforcement or tax authority.
For the avoidance of doubt, OCNEX may be required to disclose information to third parties in order to carry out fraud-checks, and the Client expressly consents to such disclosure.
If the Client has any complaints, feedback or questions, the Company may be contacted via firstname.lastname@example.org and we will in our best efforts try to resolve the issue with expediency. OCNEX shall not provide any support services to walk-in users.
- GOVERNING LAW
The law applicable to the agreement between the User and OCNEX, the subject-matter of which are the services provided by OCNEX within the OCNEX Platform, under the terms specified in the Regulations, shall be the Maltese law.
All and any disputes related to the Services provided by OCNEX shall be resolved by the competent Maltese Courts of Law. The User who is a consumer also has the option of using the EU ODR Internet platform.
- REGULATORY DISCLAIMER
The Maltese Government has recently endeavored to promulgate and enact three bills entitled: ‘The Virtual Financial Assets Act’ (VFA Act) the ‘Malta Digital Innovation Authority Act’ (MDIA Act) and the ‘Technology and Service Arrangements Act’ (TAS Act) with the main aim of genuinely transforming Malta into: ‘Blockchain Island’ – an innovative and geographically strategic hub providing the first set of Laws regulating primarily (but not limited to) Virtual Financial Assets, VFA Exchanges and Initial Coin Offerings (ICOs). The much anticipated VFA Act is scheduled to become ‘law’ onthe1st day of November 2018.
Since the operation of a VFA OTC Trading Platform & VFA Exchange fall under the Second Schedule of the VFA Act [and are specifically classified as a VFA Service], the ‘services’ require a license to operate in terms of the new proposed Virtual Financial Assets Act, 2018.
The overall operation of an OTC & VFA Exchange platform benefits from a Transitory provision which is that of twelve months. In other words, this means that both platforms may be created without hesitancy, but the application must be filed with the Competent Authority within the twelve-month period of the coming into force of the Law.
Once the application is filed, the platforms may continue to operate normally until Licensing confirmation/feedback is given by the Competent Authority.
In any event, until the License is fully issued by the MFSA, the Authority will expect all platform operators to comply with the rules and regulations of the platforms on a ‘best effort’ and ‘best practice’ basis. In this regard, the following prospective Terms and Conditions may be revised from time to time by our Compliance team to ensure their reliability and validity accordingly.
The MFSA has also recently issued a Consultation Paper pertaining to ‘the Virtual Financial Assets Regulations to be issued under the Virtual Financial Assets Act’. Any person shall upon submission of an application for the granting of a license irrespective of whether the application is eventually accepted or not, pay to the competent authority the respective fee as established in the Act.
In this connection, operators of an OTC Trading & VFA Exchange Platform will be expected to apply for a VFAA Class 4 license specifically dealing with License holders authorized to hold or control clients’ money & to operate a VFA Exchange.
In this connection, OCNEX endeavors to obtain the necessary license in accordance with all the rules and regulations found in the Virtual Financial Assets Act, 2018.