Digital LLC: ECN Subscription Agreement
BY CLICKING A BOX INDICATING ACCEPTANCE, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF HIMSELF OR HERSELF BY CLICKING THE BOX INDICATING ACCEPTANCE, THE INDIVIDUAL REPRESENTS THAT HE OR SHE IS BOUND TO THESE TERMS AND CONDITIONS.
FOR AN INDIVIDUAL ACTING ON BEHALF OF A COMPANY IS ACCEPTING ON BEHALF OF THE COMPANY BY CLICKING THE BOX INDICATING ACCEPTANCE, AND THE INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THE PROVISIONS OF THIS AGREEMENT, OTHER THAN “FEES”, WILL ALSO GOVERN ANY FREE TRIAL OFFERED BY THE COMPANY.
THIS AGREEMENT IS A BINDING COMMITMENT OF THE CLIENT TO ORDER THE SERVICES. HOWEVER, THE AGREEMENT WILL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS ACCEPTED BY COMPANY IN ITS DISCRETION. AN EMAIL WILL BE SENT TO CLIENT INDICATING ACCEPTANCE, SUBJECT TO PAYMENT AND CLIENT CONFIRMATINON IN ACCORDANCE WITH INSTRUCTIONS PROVIDED IN THE ACCEPTANCE EMAIL.
THIS AGREEMENT, AND CLIENT’S PAYMENT OBLIGATION, MAY BE CANCELLED ONLY BY PROVIDING AT LEAST 2 BUSINESS DAYS’ NOTICE IN ACCORDANCE WITH THIS AGREEMENT.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Acceptance Date” means the date that the Company accepts this Agreement and Client’s order for the Services.
“Agreement” means this ECN Subscription Agreement.
“Access Keys” means the non-transferable application program interface (API) keys, or authorization codes, needed by the Company to connect to the Venues and provided the Services.
“Applicable Law” means all laws, rules and regulations applicable to Client’s use of the Services and trading activities.
“Business Days” means weekdays when the New York Stock Exchange is open.
“Company” means Digital, LLC.
“Client” means the company or for which the individual clicking the acceptance box is accepting this Agreement.
“Client Data” means electronic data and information submitted by or for Client to the Company (and its payment processor) or via the Services.
“Documentation” means the Service’s specifications and user guides, if any, made available by the Company.
“ECN” means the Company’s Electronic Communication Network, Digital, which, provides order routing and management for designated crypto-currencies.
“Services” means the Company’s ECN and related support, connectivity and access methods, if any, provided by the Company.
“User” means an employee [or contractor] of the Client who is authorized by the Client to use the Services, and to whom Client has supplied a user identification and password (for Services utilizing authentication)].
“Venues” means those liquidity venues, including exchanges, designated by Client to Company, where Client has an account and is authorized to trade crypto-currencies.
“Sub Accounts' ' means the account legally owned by the User at Prime Trust, that is permissioned by the User to give Digital access to control those funds for the purposes of settlement.
“Settlement” shall mean the internal transfer of funds executed by a Third Party Settlement Agent.
2. COMPANY’S ROLE; PROVISION OF THE SERVICES 2v.1.0 (02MAY2019)
2.1 Technology Provider. Company is a technology service provider only and is not and shall not be a party to any trade or transaction. Company is not and shall not be deemed an agent of Client, or any Users, other clients, or Venues.
2.2 ECN and Related Services. In consideration for the payment of Fees, Company will make the ECN available to the Client during the Term on a software-as-a-service (“SaaS”) basis. Company will provide Client with access codes in order to use the Services. Subject to Client’s provision of the API Keys, information and documentation reasonably requested by the Company for this purpose, the ECN will connect to Client’s Venues. Company will not, and accepts no responsibility for, connecting to any Venues which have terminated, suspended or restricted Client’s access.
2.3 Use Restrictions. Client will not (a) make the Services other than Users, or use the Service for the benefit of anyone other than Client or its Affiliates, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include the Services to any third party, (c) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (d) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (e) modify, copy, or create derivative works based on the ECN or any part, feature, function or user interface thereof, or (f) disassemble, reverse engineer, or decompile the Services.
2.4 IP Ownership. Company reserves itself all rights to the ECN and Documentation not expressly granted to Client in accordance with this Agreement. Company all rights in inventions, patents, copyrights, database rights, design rights, trademarks, trade names, trade secrets, know-how and any other intellectual property rights (whether registered or unregistered) relating to the Services will remain vested in Company. Without limiting the foregoing, Company owns all right, title and interest in and to the Services, all related applications, APIs, user interface designs, software, source code, object code, and any and all enhancements and modifications thereto and derivative works thereof. All Client’s trade data remains the property of Client and Client grants to Company the right and license to use the trade data only (i) to provide the Services, and (ii) in aggregated and anonymized form. Nothing contained herein shall restrict Company from disclosing Client Data, including trade data, as required by Applicable Law, or pursuant to a facially valid subpoena or regulatory request or audit. Client grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the Services.
2.5 Records. The Company will retain Client Data (e.g., orders, cancellation instructions and executed fills) for a period of 12 months. Upon request by Client made within 30 days after the effective date of termination of this Agreement, Company will make Client Data available to Client. After such 30-day period, Company will have no obligation to maintain or provide any Client Data, and will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.6 Support. Company use commercially reasonable efforts to make the ECN available 24 hours a day, 7 days a week, except for scheduled downtime and unavailability caused by circumstances beyond Company’s reasonable control. Company will use commercially reasonable efforts to provide notice of downtime by email.
2.7 Protection of Client Data. Company will maintain industry standard appropriate safeguards for protection of the security of Client Data. Those safeguards will include measures designed to prevent unauthorized access to or disclosure of Client Data (other than by Client or Users). Client shall not provide Company with any personally identifiable information except as may be specifically requested by the Company. Company does not have access to Client’s or Users’ credit card information, and such information shall be governed solely by the terms and conditions of the Company’s payment processor.
2.8 Suspension. Company may immediately suspend Client’s or any User’s right to use the Services if, in Company’s judgment, Client or a User is in breach of this Agreement, or Client or Users use of the Services threatens the security or integrity of the ECN, to comply with legal, regulatory or contractual requirements, or due to any system requirements or concerns.
3. USE OF SERVICES
3.1 Client Responsibilities. Client will be responsible for: (a) maintaining the security of the access codes provided by the Company and not sharing the access codes to anyone other than an authorized User, (b) its and Users’ compliance with this Agreement and Documentation, (c) its trading activities, (d) promptly providing Company with the Access Key(s), which shall not have transfer ability; (e) for the accuracy of Client Data, including the Access Keys, and having all rights in and to the Client Data and Access Keys, as necessary for Client’s use and disclosure in connection with this Agreement, (f) using the Services and conducting its trading activities in compliance with Applicable Law, (g) using diligent and reasonable efforts to prevent unauthorized access to3v.1.0 (02MAY2019) or use of Services, and (h) promptly notifying Company of any breach or failure in the foregoing, or any termination, suspension or modification of its rights to access a Venue.
3.2 Malware. Each party shall use commercially reasonable efforts to ensure that its systems do not contain any time locks, viruses, trojans, worms, spyware, adware, other malware and malicious code, copy protect mechanisms, back doors, or features designed to (a) disable the other party’s or Venues’ networks, systems, programs or data, or render them incapable of operation (whether after a certain time, after transfer to another machine, or otherwise), or (b) permit unauthorized access to the networks, systems, programs or data of the other party or Venues.
4. FEES AND PAYMENT
4.1 Fees. All relevant fees are negotiated outside of this agreement between the Client and Digital LLC. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its subscription. If Company is responsible for collecting any Taxes, Client hereby authorizes Company’s payment provider to charge the Client credit card provided for payment of fees such amounts.
5.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Client includes Client Data; Confidential Information of Company includes the Services, its business and marketing plans and process, technology and technical information, and strategies, product plans and designs. Confidential Information does not include information that (I) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (II) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (I) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (II) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants (and, in the case of Company, to Venues and service providers, as necessary to provide the Services) without the other party’s prior written consent, provided that a party that makes any such disclosures will remain responsible for the recipients’ compliance with this “Confidentiality” section. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.4v.1.0 02MAY2019)
6. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
6.1 Mutual Representations. Each party represents that: (a) it has validly entered into this Agreement and has the legal power to do so; and (b) it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement.
6.2 Company Warranties. The Company will not materially decrease the overall functionality of the Services during a subscription term. The foregoing shall not apply to a decrease in functionality caused by a force majeure event, or any cause attributable to Client, Users, Venues or connectivity providers. For any breach of this warranty, Client’s exclusive remedy is refund of the fees paid for the affected portion of the subscription term, provided that Client must provide notice of breach of this warranty within thirty (30) days of its occurrence, or all remedies, including right to a refund, are waived.
6.3 Client Representations and Warranties. Client represents that it is not named on any U.S. government denied-party list. Client will not permit any User to access or use the Services in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation. Client further represents, warrants and covenants that it will not instruct Company to access any Venues without the authorization to do so.
6.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT MAKE AND EXPRESSLY WAIVES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.1 Company Indemnification. Company will defend against any claim, demand, suit or proceeding made or
brought against Client by a third party (“Claim”) alleging that the Services infringe on or misappropriate such third party’s intellectual property rights and will indemnify Client from any damages (including reasonable attorney fees and costs) as a result of such Claim, provided that Client (a) gives prompt written notice to Company of the Claim, (b) Company has sole control of the defense and settlement of the Claim (except that Company may not settle any Claim that imposes liability on Client or admits its fault), and (c) provides reasonable assistance to Company. Company may in its discretion and at no cost to Client (x) modify the Services so that they are no longer infringing, (y) obtain a license for Client’s continued use of the Services, or (z) terminate Client’s subscriptions and refund Client any prepaid and unaccrued fees. The foregoing Company obligations do not apply if the Claim would not have arisen but for Client’s breach of this Agreement or use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Company, or if the Claim arises from Client Data. This section states the Company’s sole liability to, and the Client’s exclusive remedy against Company, for any claim of infringement or misappropriation
7.2 Client Indemnification. Client will defend Company and its Affiliates against any Claim made or brought against Company by a third party and will indemnify Company from any damages (including reasonable attorney fees and costs) as a result of such Claim, arising from or relating to (a) Client’s trading activities, (b) Client’s obligations to Venues and trading counterparties, (c) Client Data, or (d) breach of this Agreement; provided that Company (a) gives prompt written notice to Client of the Claim, (b) Client has sole control of the defense and settlement of the Claim (except that Client may not settle any Claim unless it unconditionally releases Company of all liability), and (c) provides reasonable assistance to Client.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR
THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX (6) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE OBLIGATIONS RELATING COMPANY’S IP OWNERSHIP, OBLIGATIONS OF EACH PARTY WITH5v.1.0 (02MAY2019) RESPECT TO CONFIDENTIAL INFORMATION, OR THE EXTENT PROHIBITED BY LAW.
9. TERM AND TERMINATION
9.1 Term of Agreement. This Agreement commences on the date Client first accepts it and continues until terminated. Where Client has committed (paid for) a monthly subscription, the subscription shall automatically renew for successive one month periods, provided that the first subscription period shall last for the Minimum Term. Where Client has committed (paid for) an annual subscription, the subscription shall automatically renew for successive one year periods.
9.2 Termination. A party may terminate this Agreement for cause (i) upon 15 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Company may terminate this Agreement and any subscription without notice if Client has not timely paid fees due as of the start of each subscription period and renewal period. In no event will termination relieve Client of its obligation to pay any fees payable to Company for the period prior to the effective date of termination.
9.3 Surviving Provisions. Upon termination of this Agreement, Client and its Users shall cease all use of the Services. Termination of this Agreement shall not affect outstanding obligations and responsibilities. The sections titled “IP Ownership,” [“Records,”] “Fees and Payment,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
10.1 Sub Account Authorization. User agrees to enable Digital as an “Agent” to the clients “Sub Account”; allowing Digital to lock funds in said “Sub Account” during trading hours to ensure settlement. Digital shall be authorized to send instructions to Prime Trust on behalf of Account Holder with respect to “Sub Account”. This relationship is reflected in Prime Trust`s Custodial Agreement.
10.2 Net Open Positions. Trading balances will be adjusted accordingly to reflect the client's Net Open Position from the Venue at the end of each trading day, 5pm EST. All custody and movement of funds is coordinated inside the Prime Trust ecosystem.
10.3 Fees. Digital`s technology may also submit instructions to Prime Trust to debit Digitals fees from Account Holder’s Accounts.
10.4 Invalid Transfers. If Account Holder reports to Prime Trust that an executed transaction was not authorized, to the extent that Account Holder initiated the transaction through Digital Venue, Prime Trust and Digital will investigate the report and verify the details of the transaction before making all necessary adjustments to the Accounts.
10.5 Revocation. Account Holder may revoke Digital`s authority as “Agent” under the Agreement by giving notice to Digital and Prime Trust of such revocation. Once notice is received of the revocation, Prime Trust will verify such revocation with Digital. The revocation will be effective within the day after the notification of revocation is received by Digital and Prime Trust. Provided, such revocation shall not affect Account Holder’s liability for all unsettled, net open positions.
11. GENERAL PROVISIONS
11.1 Clearing and Settling. Per this agreement, the Client agrees that Digital LLC will act in an agency capacity for all trades matched and executed on their Electronic Communication Network. Furthermore, the Client acknowledges that all transactions matched and executed on their network will be settled through Digital`s method of the use of the third-party custodian, Prime Trust. The Client also acknowledges that this agreement is null and void given that they do not sign and agree to the terms of the linked custodial agreement.
11.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between SFDC and Client regarding Client’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.4 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, that Company may assign this Agreement without Client’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second Business Day after mailing, or (c) the day of sending by email if sent on a Business Day (Eastern Time – U.S.) or otherwise, on the next Business Day. Notices to the Company shall be given in writing, addressed to: Digital, LLC, 24 Meeting House Road, Greenwich, CT 06831.
11. 9 Governing Law, and Venue; Jury Waiver. The laws of the State of New York will apply in any dispute or lawsuit arising out of or in connection with this Agreement, without regard to conflict of law rules. The parties irrevocably agree that federal and state courts of New York, County of Manhattan, shall have exclusive jurisdiction over any such dispute or lawsuit, regardless of where Client is domiciled. The parties hereby waive their right to a trial by jury.6v.1.0 (02MAY2019)
11.10 Entire Agreement. This Agreement (including all schedules, exhibits, amendments and attachments hereto) represents the entire agreement by and between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, representations, warranties, requests for proposal and negotiations, if any.
11.11 E-Signature. The Parties agree that this Agreement, including any schedules, exhibits, addenda and amendments, may be signed electronically. The agreement is "signed"; or "executed" if it includes a symbol or action that is adopted or performed by the signer with the present intent to authenticate, manifest acceptance of or assent to the agreement (an "E-Signature") consistent with the Electronic Signatures in Global and National Commerce Act (ESIGN) of 2000. If an E-signature is affixed below through the use of an E-signature application, it shall be deemed to be an original signature as if handwritten below and no certification authority or other third party verification is necessary to validate the E-Signature of any party or any agreement between the parties resulting from an E-Signature.