You, as Pionex User (“Party A”)
Pionex (“Party B”)
(a) From time to time the parties hereto may enter into transactions in which Party A agrees to sell to Party B Bitcoin, Ethereum or other crypto assets (“Subject Asset”) against the payment of the Opening Amount by Party B to Party A, with a simultaneous agreement by Party B to sell to Party A Subject Asset equivalent to such Subject Asset at a date certain against the payment of the Settlement Amount by Party A to Party B.
(b) Each such repurchase transaction shall be referred to herein as a “Transaction” and shall be governed by this Agreement, including any supplemental terms or conditions contained in any Confirmation.
(c) Before initiating any Transaction, Party A shall read carefully all of the terms and conditions of this Agreement and Confirmation. By initiating a Transaction, Party A agrees to comply with all of the terms and conditions in this Agreement and Confirmation that applies to each Transaction.
(a) “Confirmation”, the meaning specified in Section 3(b);
(b) “Contractual Cryptocurrency”, the meaning specified in Section 5(a);
(c) “Equivalent Subject Asset”, with respect to a Transaction, assets equivalent to the Subject Asset under that Transaction;
(d) Subject Assets are “equivalent to” other Subject Assets for the purposes of this Agreement if they are: of an identical type and amount as those other Subject Asset;
(e) “Event of Default”, the meaning specified in Section 7;
(f) “Fee”, with respect to any Transaction as of any date, the aggregate amount obtained by application of the Fee Rate for such Transaction to the Opening Amount for such Transaction (on a 365 day basis, unless otherwise agreed between the parties for the Transaction) for the actual number of seconds during the period commencing on the Opening Time for such Transaction and ending on the Settlement Time;
(g) “Fee Rate”, with respect to any Transaction, the per annum percentage rate for calculation of the Fee agreed to by Party B and Party A in relation to that Transaction;
(h) “Guaranteed Price”, with respect to any Transaction, the unit price of Subject Asset agreed to by the parties in relation to that Transaction and shall have the meaning specified in Section 3;
(i) “Opening Time”, with respect to any Transaction, the time when Subject Asset is sold by Party A to Party B in relation to that Transaction;
(j) “Opening Amount”, on the Opening Time, the price at which Subject Asset is sold or is to be sold by Party A to Party B, which shall equal to the Guaranteed Price multiplied by quantity of Subject Asset;
(k) “Profit Sharing Amount”, with respect to any Transaction, the amount of Contractual Cryptocurrency that Party B shall be entitled to if Settlement Price of Subject Asset is above or equal to the Profit Sharing Price, which shall equal to the price difference between the Settlement Price and the Profit Sharing Price multiplied by the quantity of Subject Asset, and multiplied by the applicable Profit Sharing Ratio;
(l) “Profit Sharing Price”, with respect to any Transaction, the unit price of Subject Asset agreed to by the parties in relation to that Transaction and shall have the meaning specified in Section 3;
(m) “Profit Sharing Ratio”, with respect to any Transaction, the percentage of the price difference between the Settlement Price and the Profit Sharing Price to which Party B is entitled to claim in relation to that Transaction；
(n) “Subject Asset”, with respect to any Transaction, the Subject Asset sold or to be sold by Party A to Party B under that Transaction;
(o) “Settlement Time”, with respect to any Transaction, the time when Party B is to sell Equivalent Subject Asset to Party A in relation to that Transaction;
(p) “Settlement Amount”, with respect to any Transaction and as of any time, the amount to be paid by Party A to Party as the parties may agree upon in a Confirmation;
(q) “Settlement Price”, with respect to any Transaction, market price of the Subject Asset at the Settlement Time, which shall be determined by Party B in accordance with the Confirmation;
- Initiation; Confirmation; Settlement
(a) From time to time, Party B may publish its quotations on Fee Rates, Opening Amounts, and other parameters of repurchase transactions on its website or mobile APP. Party A may enter into a Transaction by clicking buttons on the website and Mobile APP, which shall be deemed as accepting and agreeing with the terms of this Agreement and any applicable Confirmation. Party A shall review and confirm on each Confirmation before entering into any Transaction.
(b) The quotations published by Party B shall be subject to changes from time to time before confirmation by Party A. Each Transaction shall be executed in accordance with the Confirmation confirmed by Party A.
The Confirmation shall describe the type and quantity of Subject Asset, and set forth –
(i) the Opening Time;
(ii) the Opening Amount;
(iii) the Settlement Time;
(iv) the Fee Rate applicable to the Transaction;
(v) the Settlement Amount;
(vi) the Guaranteed Price, the Settlement Price, the Profit Sharing Price and/or the Profit Sharing Ratio, if applicable;
(vii) the transaction rules applicable to such Transactionp; and
(viii) any additional terms or conditions of the Transaction.
and may be in any form as prepared by Party B.
The Confirmation relating to a Transaction shall, together with this Agreement, constitute prima facie evidence of the terms agreed between Party B and Party A for that Transaction. In the event of any conflict between the terms of such Confirmation and this Agreement, the Confirmation shall prevail in respect of that Transaction and those terms only.
(c) At the Opening Time for a Transaction, Party A shall transfer the Subject Asset and pay the Fee to Party B against the payment of the Opening Amount by Party B. Party B may deduct the Fee from the Opening Amount and after such deduction, transfer the remaining portion of the Opening Amount to Party A.
(d) At the Settlement Time, Party B shall transfer to Party A Equivalent Subject Asset after receiving the payment of the Settlement Amount by Party A.
(e) The Settlement Amount shall be calculated in accordance with the Confirmation of each Transaction. The parties confirm and agree that the Settlement Amount shall be determined according to the Settlement Price, and the Settlement Amount may be lower or higher than the Opening Amount. In general, at Settlement Time:
(i) if, Settlement Price of Subject Asset is below or equal to Guaranteed Price, then the Settlement Amount shall equal to the Settlement Price multiplied by quantity of Subject Asset; or
(ii) if, Settlement Price of Subject Asset is above Guaranteed Price and below the Profit Sharing Price, then the Settlement Amount shall equal to the Opening Amount; or
(iii) if, Settlement Price of Subject Asset is above or equal to Profit Sharing Price, then Party B shall be entitled to share the profit above the Profit Sharing Price in accordance with the Confirmation, as the Settlement Amount shall equal to the sum of the Opening Amount ans Profit Sharing Amount, and the Profit Sharing Amount shall equal to the price difference between the Settlement Price and the Profit Sharing Price multiplied by the quantity of Subject Asset, and multiplied by the applicable Profit Sharing Ratio.
(f) If Party A’s account balance at the Settlement Time is greater than or equal to the Settlement Amount, Party B shall debit Party A’s account equivalent to the Settlement Amount and subsequently transfer the Equivalent Subject Asset to Party A’s account.
(g) If Party A’s account balance at the Settlement Time is less than the Settlement Amount, Party B shall have the right to reject Party A’s request for repurchase of the Subject Asset after the Settlement Time and Party B shall have the right to dispose of the Equivalent Subject Asset at its sole discretion.
- Payment and Transfer
(a) Unless otherwise agreed, all Contractual Cryptocurrency paid hereunder shall be in immediately available freely convertible cryptocurrency. All Subject Asset to be transferred hereunder shall be directly debited or credited from Party A’s account with Party B.
(b) Unless otherwise agreed, all Contractual Cryptocurrency payable by one party to the other in respect of any Transaction shall be paid free and clear of, and without withholding or deduction for, any taxes or duties of whatsoever nature imposed, levied, collected, withheld or assessed by any authority having power to tax, unless the withholding or deduction of such taxes or duties is required by law. In that event, unless otherwise agreed, Party A shall be solely responsible for and bear all such taxes or duties.
(c) The parties shall undertake and ensure that all right, title and interest in any Subject Asset and any Equivalent Subject Asset shall pass to the party to which transfer is being made upon transfer of the same in accordance with this Agreement, free from all liens , claims, charges and encumbrances.
(d) Notwithstanding the use of expressions in this Agreement and any Confirmation hereunder, all right, title and interest in and to Subject Asset and Contractual Cryptocurrency transferred under this Agreement shall pass to the transferee upon transfer or payment, the obligation of the party receiving Subject Asset being an obligation to transfer Equivalent Subject Asset.
(e) Each obligation of Party B under this Agreement is subject to the condition precedent that none of the events specified in Section 7(a) (Events of Default) shall have occurred and be continuing with respect to Party A.
- Contractual Cryptocurrency
(a) All the payments made in respect of the Opening Amount or the Settlement Amount of any Transaction shall be made in the cryptocurrency of the Opening Amount (the “Contractual Cryptocurrency”).
(b) If for any reason other than the reasons of taxes or duties, the amount in the Contractual Cryptocurrency received by a party falls short of the amount in the Contractual Cryptocurrency due and payable, the party required to make the payment will, as a separate and independent obligation, immediately transfer such additional amount in the Contractual Cryptocurrency as may be necessary to compensate for the shortfall.
(c) If for any reason the amount in the Contractual Cryptocurrency received by a party exceeds the amount of the Contractual Cryptocurrency due and payable, the party receiving the transfer will refund promptly the amount of such excess.
Each party represents and warrants to the other that –
(a) it is duly authorised and/or capable to execute and deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and thereunder and has taken all necessary action to authorise such execution, delivery and performance;
(b) it will engage in this Agreement and the Transactions contemplated hereunder as principal;
(c) it has satisfied itself and will continue to satisfy itself as to the tax implications of the Transactions contemplated hereunder;
(d) in connection with this Agreement and each Transaction –
(i) it is not relying on any advice (whether written or oral) of the other party, other than the representations expressly set out in this Agreement;
(ii) it has made and will make its own decisions regarding the entering into of any Transaction based upon its own judgment and upon advice from such professional advisers as it has deemed it necessary to consult;
(iii) it understands the terms, conditions and risks of each Transaction and is willing to assume (financially and otherwise) those risks; and
(e) at the time of transfer to the other party of any Subject Asset it will have the full and unqualified right to make such transfer and that upon such transfer of Subject Asset the other party will receive all right, title and interest in and to those Subject Asset free of any lien, claim, charge or encumbrance.
On the date on which any Transaction is entered into pursuant hereto, and on each day on which Subject Asset or Equivalent Subject Asset are to be transferred under any Transaction, Party B and Party A shall each be deemed to repeat all the foregoing representations. For the avoidance of doubt and notwithstanding any arrangements which Party A or Party B may have with any third party, each party will be liable as a principal for its obligations under this Agreement and each Transaction.
- Events of Default If any of the following events (each an “Event of Default”) occurs – (i) Party A fails to pay the Settlement Amount upon the applicable Settlement Time; or (ii) Party A fails to pay when due any sum payable under this Section; or (iii) any representations made by Party A are incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; or (iv) Party A admits to Party B that it is unable to, or intends not to, perform any of its obligations hereunder or in respect of any Transaction; or (v) Party A fails to perform any other of its obligations hereunder and does not remedy such failure within 30 days after notice is given by the Party B requiring it to do so,
then Party B may terminate any outstanding Transactions hereunder at its sole discretion.
If any Transaction is terminated by Party B as a result of any Events of Default, Party B shall be entitled to set off the amount payable by Party A to Party B under the terminated Transaction against the market value of the Equivalent Subject Asset to be delivered by Party B to Party A, and Party A or Party B shall pay the net amount after the set-off to the other party. The amount payable by Party A to Party B and the market value of the Equivalent Subject Asset to be delivered by Party B to Party A shall be converted into the Contractual Cryptocurrency of the terminated Transaction.
For the purposes of this Agreement, Party B shall have the right to terminate the Transaction at any point in time after the occurrence of any Events of Default. The market value of the Equivalent Subject Asset shall be equal to the net amount Party B received from the sale of the Equivalent Subject Asset (less any expenses, commissions, fees incurred by Party B in connection with the sale of the Equivalent Subject Asset) at any point in time that Party B considers reasonable.
To the extent permitted by applicable law, if any sum of Contractual Cryptocurrency payable by Party A hereunder or under any Transaction is not paid when due, Party B may charge an interest on the unpaid sum as a separate debt at twice the Fee Rate for the actual number of seconds during the period from the time when payment was due to the time of payment.
- Single Agreement
Each party acknowledges that, and has entered into this Agreement and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that all Transactions hereunder constitute a single business and contractual relationship and are made in consideration of each other. Accordingly, each party agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, and (ii) that payments, deliveries and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder.
- Notices and Other Communications Any notice or other communication to be given under this Agreement shall be sent by website or mobile APP operated by Party B or emails and shall be deemed received on the date that notices are sent.
- Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for Transactions. Each provision and agreement herein shall be treated as separate from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
- Non-assignability; Termination
(a) Party A may not assign, charge or otherwise deal with (including without limitation any dealing with any interest in or the creation of any interest in) its rights or obligations under this Agreement or under any Transaction without the prior consent of Party B.
Party B reserves the right to assign its rights without restriction, to any affiliate or subsidiary of Party B.
Any attempted transfer or assignment in violation hereof will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assignees.
(b) All remedies hereunder shall survive Termination in respect of the relevant Transaction and termination of this Agreement.
- Governing Law
This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by, and interpreted in accordance with, the laws of England.
The English courts shall have exclusive jurisdiction in relation to all disputes (including claims for set-off and counterclaims) arising out of or in connection with this Agreement.
- No Waivers, etc.
No express or implied waiver of any Event of Default by either party shall constitute a waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure herefrom shall be effective unless and until such modification, waiver or consent shall be in writing and duly executed by both of the parties hereto. Without limitation on any of the foregoing, the failure to give a notice hereof will not constitute a waiver of any right to do so at a later date.
- Third Party Rights
No person shall have any right to enforce any provision of this Agreement under the Contracts (Rights of Third Parties) Act 1999.