Last updated: 15 January 2024
These Terms of Service govern the relationship between Uptrade PTY LTD and you. By clicking “I Agree,” you signify your acceptance of the following terms and conditions.
1. UpTrade Terms of Service
(a) Your use of our Services (as defined in section 5) implies your consent to abide by these terms of service (Terms of Service). If you do not agree with these Terms of Service, please refrain from using our Services immediately.
(b) By clicking “I Agree,” creating an account, registering, or using any part of our Services, you acknowledge your commitment to these Terms of Service.
(c) We may periodically update these Terms of Service, and any revisions will be publicly displayed on our website (uptrade.au). The changes become effective upon publication and supersede any prior versions.
(d) Your continued use of your Account, the Website, and/or Services signifies your acceptance of these changes and subjects your Account to the modified Terms. If you disagree with any modifications, you have the option to discontinue using our Services.
2. Purpose and Foundation of these Terms
(a) These Terms of Service, along with the terms of use for our Website (each as amended according to their respective terms), apply to all Services provided to you from time to time.
(b) If there are other agreements or documents governing Services between us and you, those agreements or documents supplement and become a part of these Terms. In case of any inconsistencies or conflicts between the Terms and other agreements or documents, the specific subject matter, products, or Services addressed by the other agreement or document shall prevail.
(c) These Terms of Service replace any prior agreements related to their subject matter.
3. Definitions and Interpretation
(a) Unless otherwise specified, definitions are provided within these Terms of Service.
(b) In these Terms of Service:
(i) “Account” refers to your registered identity used for the provision of Services, including Individual and Corporate Accounts.
(ii) “Business Day” means a day when banks are open for business in Melbourne, excluding Saturdays and Sundays.
(iii) “Digital Currency” is a digitally encrypted representation of value that operates independently from a central bank, with encryption techniques regulating its generation and asset transfers.
(iv) “Referral Partner” denotes a referrer who has a commission agreement with us for Trades on customer Accounts, in exchange for referring customers to us.
(v) “We,” “Us,” “Our,” and “UpTrade” refer to Uptrade PTY LTD (ABN 49 672 404 929) or its nominated related body corporate, as defined in the Corporations Act 2001 (Cth), providing Services to you.
(vi) “you” and “your” refer to the customer receiving Services, including your Authorised Agent, where applicable.
(c) References to clauses denote sections in these Terms of Service.
(d) Headings are provided for convenience and do not affect the interpretation of these Terms of Service.
(e) Any references to earlier versions of these Terms of Service in any documentation between you and us should be understood as references to these Terms of Service or the relevant corresponding section thereof.
(f) References to statutes and other laws, rules, or regulations pertain to these statutes, laws, rules, or regulations as amended, modified, restated, or replaced from time to time.
(g) Unless otherwise specified, monetary amounts are in Australian dollars.
4. Capacity
(a) The relationship between you and us and the Services we provide do not create a fiduciary or equitable duty that obliges us to assume responsibilities beyond what is outlined in these Terms or prevents us from dealing with Digital Currencies for other entities.
(b) The Terms do not create a partnership, joint venture, or similar arrangement between you and us.
5. Description of Services
(a) We may:
(i) execute Digital Currency purchases and disposals on your behalf as your agent, including in connection with airdrop events or forks (referred to as “Trades”); and
(ii) hold fiat or Digital Currency for the purpose of executing Trades, collectively known as the Services.
(b) Our provision of Services is subject to these Terms and applicable law.
(c) By engaging in business with us, you confirm your ability to understand the risks involved in any transaction we carry out on your behalf. We make no guarantees regarding the performance or profitability of any transaction or investment made through us.
(d) We do not offer tax, legal, accounting, or any other advisory services related to the Services or any Digital Currency.
(e) We are authorized to take any actions we consider necessary or appropriate to provide the Services, mitigate losses incurred in providing the Services, or comply with applicable laws related to the Services. This includes executing transactions based on your instructions to implement a Trade or handle Digital Currency held for you.
6. Registration
6.1. General
(a) To trade Digital Currencies with us, you must register through our Website or one of our brokers to create a trading account. After registration, one of our brokers will provide you with a Customer ID Number, which is used to initiate Trades.
(b) You can register as an individual or a corporation.
(c) You may not act as an agent for any other person.
6.2. Individual Account
This Account is owned by a single natural person who is the sole authorized user of the Account, unless an Authorised Agent is appointed as per section 6.4. By opening an Individual Account, you represent and warrant that you are and will continue to be the sole beneficial owner of the Account and the user of all Services associated with the Account.
6.3. Corporate Account
(a) This Account is owned by an Entity, such as a corporation, unincorporated association, company, partnership, fiduciary, sole proprietorship, or other legally recognized group. An Entity can apply to open an Account through an Authorised Representative, who is authorized by the Entity to do so.
(b) The Authorised Representative, on behalf of the Entity and themselves, represents, warrants, and agrees that they are fully authorized to bind the Entity, provide all necessary documents, and comply with our requirements. We may refuse to acknowledge such authorization if it appears incomplete or improperly executed in our sole discretion.
(c) By opening a Corporate Account, the Authorised Representative represents and warrants that the Entity is and will remain the sole beneficial owner of the Account and the user of all Services connected to the Account.
6.4. Authorised Agents
(a) You can apply to appoint an individual or individuals as your Authorised Agent for Services. We may, at our discretion, accept such applications subject to specific conditions, including completing the Authorised Agent Authorisation form and any required checks.
(b) In addition to any rights specified in an Authorised Agent Authorisation form and these Terms of Service, you acknowledge that we, our related parties, officers, employees, consultants, advisers, and agents can rely on instructions, statements, and representations made by an Authorised Agent regarding the Services as if made by you. We will not investigate the authority of the Authorised Agent for each instruction unless we are aware that the instruction was not authorized. We may refuse to act on an instruction until its validity is confirmed, and we, as well as our related parties, will not be liable for any consequences resulting from not acting on the instruction.
(c) You agree that you, or anyone claiming through you, will not have
any claims against us, our related parties, officers, employees, consultants, advisers, and agents regarding instructions from the Authorised Agent, whether authorized by you or not.
(d) You acknowledge the risk of fraudulent instructions from your Authorised Agent.
(e) You must notify us in writing of any changes to your Authorised Agent, including the revocation of their authorization.
(f) Failure to promptly notify us of changes to your Authorised Agent makes you responsible for any loss or damage resulting from us acting on instructions from your Authorised Agents.
(g) You release and indemnify us for any loss or damage suffered due to relying on this section 6.4 and the instructions of your Authorised Agent.
7. Anti-money laundering and counter-terrorism financing
(a) We are obligated to comply with anti-money laundering and counter-terrorism financing (AML/CTF) laws, including the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF Laws).
(b) Before providing Services to you, we will collect and verify your personal information as required by AML/CTF Laws. We may also report your transaction activity to AUSTRAC.
(c) You acknowledge and agree to provide reasonable assistance to us in complying with our obligations under the AML/CTF Laws. We may refuse to provide Services and cancel your registration if you do not assist us in complying with the AML/CTF Laws.
(d) Our processes for collecting, storing, and using your personal information are outlined in our privacy policy. Refer to section 11 of the terms of use for our Website for more information.
8. Instructions
(a) In addition to instructions received directly from you or an Authorised Agent, you authorize us to rely on any instruction from the email address or phone number associated with your Account, or any instruction linked to your Account, which appears to have been given by you or on your behalf and is accepted by us in good faith. You are responsible for all contracts, obligations, costs, and expenses entered into or incurred by us on your behalf in connection with such instructions.
(b) Instructions and other required documents shall be transmitted as specified by us and are at your own risk. We are not responsible for any losses, damages, costs, or expenses resulting from instructions not being received or acted upon. You should not assume an instruction has been executed until you receive confirmation from us. We shall not be liable for:
(i) errors, ambiguities, inaccuracies, incomplete orders, or omissions in any instructions you provide;
(ii) delays in transmission or service unavailability;
(iii) risks associated with unauthorized interventions or fraudulent use of communication means;
(iv) other causes beyond our control.
(c) We and our directors, officers, or employees will not be liable for any losses resulting from instructions not being received or acted upon. Transmitting a Trade instruction to us is not evidence of our receipt or acceptance of such instruction.
(d) We may, at our discretion, refuse to accept or act on any instruction without providing a reason, including not following the applicable procedure exactly, using a TOR/VPN service, or attempting to have another person pay for your purchase.
(e) If we decline an instruction, we will take reasonable steps to notify you and refund any payment or return any Digital Currency received by us in connection with the instruction (less applicable losses) as soon as possible.
9. Trading
9.1. Purchasing Digital Currency
(a) To initiate a purchase of Digital Currency, you must:
(i) deposit the purchase amount for the Digital Currency in fiat into the bank account we specify or ensure we already hold the amount on your behalf (Purchase Amount);
(ii) send us an email that includes your Customer ID Number (which may be assumed if the email address is associated with your Account), states the Purchase Amount, and the Digital Currency you want to purchase (e.g., USD $1,000 / 0.3 Ether for Bitcoin), and attaches a valid funds transfer receipt for the Purchase Amount.
9.2. Swapping or disposing of Digital Currency
(a) To initiate a swap or disposal of Digital Currency, you must:
(i) send us an email that includes your Customer ID Number (which may be assumed if the email address is associated with your Account), states the type of Digital Currency you want to sell, the amount of Digital Currency you want to sell (Disposal Amount), and the form of consideration you want to receive (e.g., 0.3 Ether for Bitcoin / $AUD).
(ii) If we are not holding the full Disposal Amount for you, we will email you the address of our digital wallet for transferring the Disposal Amount before accepting a Trade instruction.
9.3. Trade prices
(a) You acknowledge that any Trade executed according to sections 9.1 or 9.2 will be subject to the spot market price for the Digital Currency at the time of execution, unless otherwise stated by us. The actual market price will only be known after the Trade is executed and confirmed to you through the Trade order executed confirmation.
(b) We may, at our discretion, provide you with an indication of spot market prices for Digital Currencies from time to time. However, such indication does not bind us to provide that price to you for a Trade at any time.
9.4. Minimum trade amount
We may, at our discretion, only accept instructions for purchasing or disposing of Digital Currency with a minimum trade value of $10,000.
9.5. Cancellation
(a) We reserve the right to cancel, reverse, or refuse to process any Trade at any time if:
(i) you failed AML/CTF checks, or we suspect the transaction involves criminal activity, including but not limited to money laundering, terrorist financing, or other prohibited or illegal uses;
(ii) we are unable to proceed with the transaction due to a court order, legal obligation, or government order;
(iii) the transaction poses a risk to our business or our service providers in our discretion;
(iv) the transaction cannot occur due to a lack of an applicable market, liquidity, pricing, or other impacts on the exchange, or for any other reason we determine in our reasonable discretion.
(b) If a Trade is canceled in accordance with this section, we are not obliged to offer you the same price or terms in a new transaction.
9.6. Airdrop
(a) We reserve the right to exercise our discretion to support or not support specific airdrops or similar distributions in the market. We are not liable for any losses, costs, damages, expenses, fees, charges, or liability resulting from our decision to support or not support specific airdrops.
(b) You may not participate in receiving Digital Currency from an airdrop event, and we are not required to provide Services in connection with such Digital Currencies if:
(i) you reside in the United States;
(ii) you are in an embargoed jurisdiction, or you are a member of any sanctions program or list maintained by the United States government, the Australian government, the United Nations Security Council, or other international sanctions;
(iii) you intend to transact in the Digital Currencies with any Restricted Person(s);
(iv) If your location, domicile, incorporation, or establishment, or your residency or citizenship, happens to be in a jurisdiction where participating in the receipt of any Digital Currency from an airdrop event is prohibited by applicable law or if offering such support in the jurisdiction contradicts local laws or regulations, potentially subjecting UpTrade to local registration or licensing requirements, you may not be eligible for such participation.
(c) In case we decide to endorse a specific airdrop or a similar distribution, you are required to opt-in to receive the resulting Digital Currency from the airdrop event. Our decision will be communicated through a notification on our website or via email.
(d) Notwithstanding the provisions of clause 9.6 (a) and 9.6 (c), we reserve the right, at our sole discretion and without assuming any liability, to opt-out of facilitating any such Airdrop or distribution to you if it would be commercially unfeasible or impractical for us to proceed.
(e) In accordance with these Terms of Business, you shall retain ownership of any assets in your UpTrade Account and any additional assets acquired through an eligible airdrop or similar distribution of Digital Currency supported by UpTrade.
9.7. Network Fork
(a) We retain the discretion to choose whether to support a specific fork of a Digital Currency. We cannot be held responsible for any losses, costs, damage, expenses, fees, charges, or liabilities incurred due to our decision to not support a particular fork or to cease support for a fork. Additionally, we are not responsible for the timing of such support.
(b) It is important to note that you are not allowed to participate in receiving Digital Currency from a fork of a Digital Currency, and we are not obligated to provide services related to such Digital Currencies if:
(i) You are identified as a Restricted Person.
(ii) You plan to engage in Digital Currency transactions with Restricted Persons.
(iii) You are located, domiciled, incorporated, or established in a jurisdiction where receiving Digital Currency from a fork is prohibited by law or where such support would contradict local regulations, potentially subjecting UpTrade to local registration or licensing requirements.
(c) In the event we decide to support a particular fork, you are not required to opt-in to receive the resulting Digital Currency from the fork. We may inform you of our decision through notifications on our website or via email.
(d) Regardless of the conditions outlined in 9.7(a) and 9.7(c), we have the discretion to not facilitate the distribution of Digital Currency resulting from a fork to you if doing so would be commercially unreasonable or impracticable, without incurring any liability.
(e) In case of a Digital Currency fork, we reserve the right to suspend all activities, including deposits, withdrawals, and trades (including purchases, disposals, or swaps) related to the Digital Currency until we decide, at our sole discretion, that it is appropriate to resume these activities.
10. Nominee Service
(a) We will:
(i) Securely hold any fiat or Digital Currency provided by you or acquired in connection with a trade on your behalf, as per the terms of our agreement (Assets). We hold these assets in trust for you, following the Terms.
(ii) Manage these assets as directed by you, as permitted under the Terms or as required by applicable law. You may only direct us to return these assets to a bank account in your name or a digital wallet for which you are the legal and beneficial owner (Your Account). If you receive assets in error that do not belong to you, you must promptly return them following our instructions.
(iii) Maintain accurate records to identify assets held on your behalf.
(iv) Clearly indicate in our records that these assets are held in trust for you, not for our own benefit.
(v) Keep your assets separate from our own property and take necessary steps to ensure these assets are not available to cover our creditors’ claims.
(b) To initiate an asset transfer to Your Account, you must email us with a transfer request, including:
(i) Your Customer ID Number (which may be assumed at our discretion if the email address is associated with your Account).
(ii) The amount of fiat or Digital Currency you want to transfer to Your Account. If the specific amount is not specified, we will assume this to be the entire balance held for you at that time.
(iii) For fiat transfers: your BSB, bank account number, and account name for domestic transfers, or the bank name, beneficiary name, account number, SWIFT Code, ABA Routing number, beneficiary address, and banking address for international transfers.
(iii) For Digital Currency: the public key address of your wallet for Your Account. Please note that we do not request or accept your private key, password, or secret combination for your digital wallet.
(c) We are not liable for any loss, costs, damage, expenses, fees, charges, or liabilities incurred as a result of:
(i) You disclosing your private key or it becoming known to someone else. In such cases, you must nominate a new digital wallet for receiving Digital Currency transfers.
(ii) Delays in transfers due to blockchain or cryptocurrency network congestion.
(iii) Failures or errors experienced on blockchain or cryptocurrency networks.
(iv) Transferring Digital Currency to the wrong wallet due to incorrect address details provided by you.
(v) Any incorrect details in your instructions to us.
(d) By providing us with the digital wallet address for asset transfers, you confirm that the address is correct, owned by you, under your control, and not accessible to anyone else.
(e) Upon receiving instructions under clause 10(b), we will complete the asset transfer to Your Account within 5 business days.
(f) We reserve the right to suspend asset transfers at any time if:
(i) You fail to pass any AML/CTF checks or if we suspect that the transaction contradicts our AML/CTF policies or involves illegal activities, such as money laundering or terrorist financing.
(ii) We have reason to believe that the account or digital wallet for asset transfers is not legally or beneficially owned and controlled by you.
(iii) We reasonably determine that transferring fiat or Digital Currency to you would be unlawful.
(iv) We are unable to proceed with the transfer due to a court order, legal obligation, or a directive from the Australian government.
(v) Any other reason we consider, at our reasonable discretion, including suspecting an error in the transaction. You agree to provide information and assistance regarding such suspensions as requested by us.
(g) You acknowledge that the Digital Currency we transfer to you may not be the same Digital Currency that you originally sent to us. You have no claims regarding this.
11. Fees, Charges, and Taxes
(a) We charge a commission fee, which is a percentage of the denominated value (e.g., AUD, USD, ETH, BTC) of your Purchase Amount or Disposal Amount (as applicable).
(b) The commission rate for each trade will be agreed upon by us and you before executing the trade.
(c) If you accessed our services and opened an Account through a Referral Partner, the Referral Partner may receive a percentage of the commission paid to us for each trade on your Account.
(d) You are responsible for paying all taxes and duties related to transactions or services under the Terms. If, under applicable law, such taxes and duties are required to be paid or collected by us, you must pay us the corresponding amount on demand and indemnify us for the same.
(e) You are solely responsible for filing tax returns, reports, and all related obligations with relevant authorities, and for paying all taxes (including transfer, withholding, or value-added taxes), levies, or duties related to transactions or services under the Terms. Therefore, you remain directly accountable to the relevant tax authorities for any tax liabilities arising from transactions under the Terms or services provided by us.
(f) All fees, expenses, and other amounts payable under these Terms do not include any applicable goods and services tax (GST) or similar taxes and will be subject to such taxes in addition.
12. Payments and Interest
(a) You agree to pay any amounts owed to us in the fiat or Digital Currency we specify, as they become due. This obligation remains regardless of any equity rights, counterclaims, or set-off rights you may have against us. You should pay these amounts without withholding or deduction, except when required by applicable law.
(b) Unless otherwise agreed, we will not pay you interest on any money or Digital Currency held for you. We will retain any
interest earned (if any) on the money we hold for you.
(c) You authorize us to use any assets we hold or deduct from amounts payable to us to satisfy amounts due to us under the Terms. This includes taking ownership and dealing with assets held by us to recover any losses, costs, or amounts payable.
(d) If you fail to pay any amount when due, we reserve the right to charge you interest on that amount. Interest will accrue daily and will be due and payable as a separate debt.
(e) If we receive an amount in fiat or Digital Currency in respect of your obligation but in a different currency, you shall indemnify us for any costs, including conversion costs, and losses we incur as a result of receiving such amount in a different currency than specified.
(f) This clause 12 will remain in effect even after termination.
13. Your Warranties
You represent and warrant that:
(a) You have the capacity, power, and authority to enter into these Terms of Business and any related transactions and documents. You also have the capacity, power, and authority to fulfill your obligations under these Terms.
(b) You are responsible for all obligations and liabilities resulting from transactions, including trades, executed based on your instructions.
(c) Entering into these Terms and any transaction under these Terms will not violate any applicable law, provisions of your constitutional documents, any contracts, or any other instruments that may apply to you.
(d) You have obtained all necessary governmental, regulatory, and other consents required for these Terms and related transactions. These consents are in full force, and all conditions are satisfied.
(e) You will comply with all applicable laws and disclosure requirements in any relevant jurisdiction that applies to us, you, or your investments. You will not engage in or facilitate any transaction that may result in a breach of applicable law, including tax evasion, anti-bribery and corruption, anti-money laundering, and financial crime.
(f) The information you provide to us is complete, accurate, and not misleading. In case of any changes to this information, you will promptly inform us.
(g) You have not relied on any statement made by us in making decisions regarding Digital Currency transactions.
(h) You are aware that we do not provide investment advice or recommendations regarding Digital Currency transactions. You acknowledge the speculative and volatile nature of investing in Digital Currencies and confirm your capability to assess the merits and risks of such transactions.
(i) Your use of our services is solely for your account or that of the entity you are authorized to represent. It is not on behalf of any other person or entity.
(j) Any Digital Currency you transfer to us is beneficially owned by you, free from any claims, debts, liens, or third-party interests, and is not subject to any legal restrictions for using such Digital Currency under our services.
14. Legal Status of Digital Currencies
(a) The legal status of Digital Currencies, including cryptocurrencies, cryptographic coins, tokens, and digital assets, remains uncertain in many countries and jurisdictions worldwide. Some countries may prohibit or impose restrictions on Digital Currencies. You are responsible for understanding and complying with the legal status of Digital Currencies in your jurisdiction at your own risk and expense. We do not take a specific stance on the legal status of any Digital Currency.
(b) It is your responsibility to conduct your own investigations and due diligence regarding the legal status of Digital Currencies, particularly in Australia. You acknowledge and agree that your use of Digital Currencies through our services is at your own risk.
(c) Our services will only support the Digital Currencies we determine at our discretion. However, you are responsible for ensuring that you do not use any Digital Currencies through our services that qualify as financial products under the Corporations Act. You must also ensure that you do not engage in transactions involving financial product Digital Currencies through our services. We do not support financial products in any form.
(d) You acknowledge and accept that:
(i) Digital Currency is not recognized as legal tender in Australia or many other countries, and it is not regulated by any central institution. It may be subject to extreme price volatility.
(ii) You understand the risks associated with Digital Currencies.
(iii) It is your responsibility to protect your Digital Currency, wallet, computer, software, bank account, address, and personal data against theft, fraud, or illegal activities.
(iv) Once transactions are concluded, they are irreversible.
(v) You have had the opportunity to seek independent legal and financial advice about the risks associated with purchasing Digital Currencies.
(vi) Trading Digital Currencies involves risk, especially due to price fluctuations.
15. Liability and Indemnity
(a) We shall not be liable for:
(i) Defaults of counterparties or entities holding your assets in connection with our services or through whom transactions on your behalf are conducted.
(ii) Losses resulting from failures or errors experienced on blockchain or cryptocurrency networks related to the Digital Currency.
(iii) Claims, losses, or liability arising from the payment of your assets to a beneficiary designated by you through a Beneficiary Nomination form.
(b) In cases where a Non-Excludable Provision is implied into these Terms of Business under the Australian Consumer Law or other applicable legislation, and if we can limit your remedy for a breach of that provision, our liability for such breach is limited to either re-supplying the services or paying the cost of having the services supplied again.
(c) Subject to paragraphs (d) and (e), and in compliance with Non-Excludable Provisions, our maximum aggregate liability for all claims related to these Terms or the Website is limited, to the extent permitted by law, to:
(i) Our Commission for any liability arising from a trade.
(ii) In other cases, a maximum of $100.
(d) We will not be liable for special, indirect, consequential, incidental, or punitive damages. We will also not be liable for damages related to loss of profits, revenue, goodwill, anticipated savings, or loss or corruption of data, regardless of whether such losses or damages were foreseeable or if you were informed of their possibility.
(e) Our liability is reduced to the extent your actions, omissions, or those of a third party contribute to or cause the loss or liability.
16. Termination
(a) You have the option to conclude these Business Terms at your discretion by submitting a written email notice, along with instructions for the transfer of all Assets to your Accounts in accordance with clause 10(b). This termination will take effect from the later of the date acknowledged by us and the date on which we no longer hold any Assets on your behalf.
(b) We retain the right to terminate these Business Terms by issuing a written notice specifying the effective termination date.
(c) Termination of these Business Terms under this clause will result in:
(i) No disruption to the completion of any ongoing transactions; all transactions in progress at the time of termination will be completed and delivered.
(ii) The preservation of accrued rights, existing commitments, and any contractual provisions meant to persist beyond termination.
(iii) No penalties or additional fees, with the exception of your responsibility to cover:
(A) Outstanding commissions we are owed.
(B) Any expenses we incurred while providing the Services or under these Business Terms, which are payable by you.
(C) Any extra expenses incurred by us due to the termination.
17. Nomination of Beneficiary
(a) You have the option to designate an individual or individuals to receive your Assets upon your demise (Your Beneficiary) by submitting a completed Beneficiary Nomination form via email.
(b) In the event of your death and the existence of a valid Beneficiary Nomination:
(i) Your Assets will be transferred to Your Beneficiary according to the proportions you specify in the Beneficiary Nomination.
(ii) Your estate will have no claim to your Assets.
(c) You can revoke a Beneficiary Nomination at any time during your lifetime by submitting a valid Cancellation of Beneficiary Nomination form via email.
(d) To validate a Beneficiary Nomination or a Cancellation of Beneficiary Nomination, you must sign and date the form in the presence of two adult witnesses who are not designated as a beneficiary in the Beneficiary Nomination or an existing Beneficiary Nomination.
(e) If we transfer your Assets to Your Beneficiary as per a valid Beneficiary Nomination form, you and your legal representative indemnify us against any claims, losses, or liabilities resulting from the transfer of your Assets to Your Beneficiary.
(f) Without limiting the scope of the preceding clause, claims, losses, or liabilities stemming from the transfer of your Assets to Your Beneficiary may include, but are not restricted to:
(i) Claims against us by your executor, administrator, successors, or other beneficiaries.
(ii) Your Assets being classified as notional estate of a deceased person under a notional estate order pursuant to Chapter 3 of the Succession Act 2006 (NSW) or equivalent legislation.
(iii) Any claims made by a bankruptcy trustee for the amount or value of your Assets.
18. Confidentiality
(a) Both parties, namely, you and us, are obligated to maintain confidentiality and shall not disclose to a third party any confidential information acquired in connection with these Terms or the Services, except when compelled by applicable law, regulatory agencies, or when disclosure is necessary to facilitate the proper provision of the Services to you, such as to a digital currency exchange service provider, or any applicable third party (including banks).
(b) We are not obligated to:
(i) Disclose specific information when making any decision.
(ii) Undertake any action in connection with the provision of the Services.
(iii) Consider any information or matters that come to our attention or the attention of our directors, officers, partners, employees, and agents if doing so would breach any duty of confidence to any other person, as reasonably believed by us.
19. Data Protection
We commit to:
(a) Comply with all relevant laws governing the use and safeguarding of any data associated with the Services (Customer Data) or Digital Currency held on your behalf, including but not limited to privacy laws.
(b) Notify you in case of unauthorized access to Customer Data or the loss of Digital Currency held on your behalf.
(c) Implement and maintain security measures and safeguards that meet or exceed the standards expected from professional and reputable service providers offering similar Services. These measures are designed to:
(i) Protect against the destruction, loss, or alteration of Customer Data or Digital Currency in our possession or control.
(ii) Prevent unauthorized individuals from accessing Customer Data.
(iii) Establish anti-virus measures to safeguard Customer Data.
20. Assignment and Amendment
(a) These Business Terms, as well as the associated rights and obligations, cannot be assigned or transferred by you to any other person or entity without our explicit written consent. Any attempt to do so in violation of this provision will be void and have no effect.
(b) We reserve the right to assign or transfer these Business Terms and any associated rights and obligations at any time to our related bodies corporate as defined under the Corporations Act. Such permitted assignments or transfers shall be binding on the successors, executors, heirs, representatives, administrators, and permitted assigns of the parties involved.
21. Complaints and Address for Notifications
If you wish to file a complaint about our services, you should initially address it with your broker. If you find the broker’s response unsatisfactory or prefer not to contact them, please reach out to support@uptrade.au.
22. Notifications, Instructions, and Other Communications
(a) All correspondence, notifications, certificates, and statements of account (Notifications) can be delivered to you through various means, unless required otherwise by applicable law. Any Notifications from us to you will be sent to the last email address on record for you (as applicable).
(b) All Notifications, unless objected to in writing by you within three Business Days of receipt, will be deemed correct, conclusive, and binding on you in the absence of a manifest error.
(c) Any Notifications to us should be sent to your broker’s email address or any other email address we provide for this purpose.
(d) A written Notification will be considered received by you:
(i) If hand-delivered on a Business Day, on the day of delivery; if hand-delivered on a non-Business Day, on the first Business Day after delivery.
(ii) If sent by first-class post or airmail, on the second Business Day after posting for addresses in the same country as the sender and on the fourth Business Day for different countries.
(iii) If sent by facsimile or email transmission before 5:00 pm (Melbourne time) on a Business Day, on the day of transmission; and
(iv) If sent by facsimile or email transmission on a non-Business Day or after 5:00 pm (Melbourne time) on a Business Day, on the first Business Day after transmission.
(e) A Notification or communication sent to us will only be effective when received by the relevant department or officer responsible for the subject matter in question.
23. Force Majeure
(a) We will not be held responsible for partial or non-performance of our obligations due to events such as fires, telecommunications failures, utility or power outages, equipment malfunctions, labor disputes, riots, war, non-performance by our vendors or suppliers, acts of God, pandemics or epidemics, defaults by digital currency exchanges, custody providers, or banks, suspension, failure, or closure, or other causes beyond our reasonable control.
(b) We, our suppliers, counterparties, custody providers, and applicable third parties, such as digital currency exchanges and banks, may experience cyber-attacks, extreme market conditions, or other operational or technical challenges that could result in the immediate suspension of transactions, either temporarily or permanently. As long as we have taken reasonable commercial and operational measures to prevent such events in systems under our control, we are not and will not be liable for any indirect loss, loss of data, or any other type of loss or damage incurred by you due to such cyber-attacks, operational or technical difficulties, or transaction suspensions.
24. Miscellaneous
(a) You acknowledge and agree that when engaging in business with us under these Terms, you are not relying on, and will not seek recourse for, any statement, representation, warranty, or understanding (whether made negligently or innocently) by any person other than what is expressly outlined in these Terms.
(b) Any failure to exercise or delay in exercising any right or remedy under these Business Terms will not constitute a waiver, and any partial exercise of a right or remedy will not preclude further exercise. The rights and remedies in these Business Terms are cumulative and not exclusive of rights and remedies provided by applicable law.
(c) If any provision in these Business Terms is held, in whole or in part, to be illegal or unenforceable under any law or rule, that provision or part will be deemed not to form part of these Business Terms, and the remainder will remain enforceable.
(d) To help us comply with our reporting obligations under applicable law, you agree to promptly provide any information that we reasonably require from time to time.
25. Governing Law and Rights of Third Parties
(a) These Business Terms are governed by the laws of Victoria.
(b) You and we agree that these Business Terms (including any non-contractual obligations, disputes, or claims arising out of or in connection with them) shall be governed by and construed in accordance with the laws of Victoria.
(c) Any officer as defined under the Corporations Act can rely on and enforce the provisions of these Business Terms related to any exclusion or limitation of liability applicable to them. Apart from our officers, no one who is not a party to these Business Terms may enforce any of their provisions or rely on any exclusion or limitation of liability contained herein.
26. Acknowledgments
You acknowledge that if you accessed our Services through a Referral Partner, the Referral Partner may receive a commission in accordance with clause 11(c) in exchange for referring you to us.