This Fireblocks Off-Exchange Terms and Conditions (the “OE Agreement”) governs the relationship between Bybit Technology Limited (the “Exchange”, “Company”, “we”, “us” or “our”) and certain customers (the “Client”, “you”, “your”) who desire to access the Exchange’s trading services using Collateral (as defined below) locked in Fireblocks’ Collateral Vault Account (“CVA”) (as further defined below) (each a “Party” and collectively the “Parties”). If you do not agree to any terms of this Agreement, you must immediately close and settle any contractual positions where part or all of the Collateral (as defined below) are held with Fireblocks’ CVA.

 

 

1. BACKGROUND

 

1.1 The Client acknowledges and accepts all respective terms and conditions of Fireblocks Ltd, an Israeli company, located at Floor 25, Yitzhak Sade 8, Tel Aviv, Israel 677750 (“Fireblocks”), that may be necessary to use the services set out in this OE Agreement, in particular, terms related to the provision of a CVA (as further defined below) to the Client (collectively, the “Fireblocks T&Cs”).

 

1.2 Integrated Services. The client would like to access the trading services offered by Exchange using Collateral (defined below) that will be locked in the CVA, in accordance with the terms and conditions set out herein. 

 

 

NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:

 

 

 

2. DEFINITIONS

2.1 In this Agreement, the following capitalized terms (including words defined in this Agreement and the Recitals), shall have the following meanings, unless the context otherwise required:

 

 

2.2 A word, term or phrase defined in this Agreement may be used in the singular, plural, past tense or future tense, regardless of how it is defined, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement.

 

2.3 A reference to a document or contract shall include all amendments, modifications, supplements or novation of such document or contract. The Schedule(s) forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedule. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

2.4 A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time and include all subordinate legislation made from time to time under that statute or statutory provision.

 

2.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns. Words denoting any gender shall include all genders.

 

2.6 Clause headings are for ease of reference only and shall not be used in the interpretation of this Agreement.

 

 

3. CONDITIONS PRECEDENT

3.1 The terms of this OE Agreement are subject to the execution by Client of the TPC Indemnity Agreement and the UTA Agreement prior to the Effective Date (the “Conditions Precedents”).

 

3.2 Delegation. Subject to the Conditions Precedents, the Exchange shall reflectively debit or credit the Balances into the Client’s UTA.

 

3.3 Undelegation. The Client undertakes not to Undelegate assets where it has a Negative Balance.

 

3.4 Free from Defective Interests. The Client warrants and represents that it has the full legal authority and capacity to Delegate the Delegated Assets and that all Delegated Assets are free from any encumbrances, liens, charges, or other obligations.

 

3.5 No External Usage. For the avoidance of doubt and pursuant to the UTA Agreement, Balances can only be used on the Platform. The Client, undertakes, warrants, and represents that it shall not create any encumbrances, charge, liens, or such obligations on the Balances without first seeking the written approval and consent of the Exchanges and where such is created to be void ab initio.

 

 

4. TRADE ACCOUNTING

4.1 Trade Accounting. When the Client expends Balances (the “Spent Assets"), the Client acknowledges and accepts that the Exchange shall be granted beneficial ownership and interests over the Delegated Assets reflective of the Spent Assets.

 

4.2 Net Account and Asset Valuation Calculations. All net asset or liabilities valuations (the “NAV”) of each Delegated Asset and Balances on the UTA shall be valued in USDT. The Parties agree that the NAV of each Supported Asset shall be derived from the prevailing market USDT rate of the respective asset on the Platform (the “Market Rate”). In the absence of a Market Rate, the Parties agree that the NAV shall be the prevailing Index Rate on the Exchange. The Client understands and accepts that the NAV and Balances issued shall be calculated net of applicable fees, such as Withdrawal Fees.

 

 

5. SETTLEMENT PROCESS

5.1 Settlement Cycles. Settlements shall be executed on an automated basis daily, at UTC06:00 and UTC18:00 (each a “Settlement Cycle”, collectively the “Settlement Cycles”).

 

5.2 Collateral Crediting. The Client acknowledges and accepts that during the Settlement, the Exchange shall, and is entitled but not obligated to, conduct Collateral Crediting of Spent Assets that have been Delegated on the CVA for transactions that the Client has undertaken.

 

5.3 Collateral Debiting. For the avoidance of doubt, during a Settlement, the Exchange shall only process Collateral Debiting, provided that Collateral Crediting has completed in the respective Settlement Cycle and there are no outstanding net liabilities by the Client on the UTA. Collateral Debiting shall not be processed for Unsupported Assets. Instead, Unsupported Assets shall be custodized by the Platform for the benefit of the Client.

 

5.4 Minimum Settlement Amount. The minimum Settlement amount of any Supported Asset is the equivalent value of one hundred (100) USDT, or as may be determined by the Exchange from time to time (the “Minimum Settlement Amount”). Client must have the Minimum Settlement Amount for a Supported Asset in its UTA for Collateral Debiting to be effected. Any Settlement sum for a Supported Asset less than the Minimum Settlement Amount shall not be settled and shall be reviewed on the next Settlement Cycle.

 

5.5 Settlement Process. For a Settlement to occur, each Settlement must be signed off by the Exchange, and each Exchange Settlement Request must be signed off by the Client before Settlement during any Settlement Cycle, failing which, no Settlement will occur during the respective Settlement Cycle. The amounts for Settlement shall be reasonably calculated and determined by the Exchange in its sole and absolute discretion. The Client undertakes to sign each Exchange Settlement Request within two (2) hours from the time such request is set out to the Client (“Settlement Timeline”) and any Settlement request that is not signed by Client within the Settlement Timeline shall not be processed and may be delayed to the next Settlement Cycle. The determination of the final Settlement sums by the Exchange shall not be disputed by the Client.

 

5.6 UTA Balances not Representative. The Client accepts and acknowledges that UTA Balances may not be reflective and representative of Delegated Assets. In particular, the UTA and the Balances may reflect assets, debts and obligations which cannot be reflected or represented in the CVA.

 

5.7 Forced Settlement. Notwithstanding any failed Exchange Settlement Request, Exchange may, at its sole discretion, initiate a Collateral Crediting at any given Settlement Cycle which does not require the consent of the Client (a “Forced Settlement”). In the event of a Forced Settlement, Client undertakes that it will not raise any claim or contest such Forced Settlement, failing which will result in a breach of this Agreement.

 

 

6. SET-OFF & SECURITY INTEREST

6.1 The Client understands and acknowledges that the Exchange shall have the sole discretion, but not the obligation, to set-off the Client’s outstanding liabilities and obligations (a “Negative Balance”) by Collateral Crediting of the CVA, as and when there are any available Delegated Assets. For the avoidance of doubt, a Negative Balance that is not settled in its respective Settlement Cycle is not waived and can be settled in any subsequent Settlement Cycle (a “Delayed Set-Off”).

 

6.2 At each Settlement Cycle, the Exchange may determine, in its absolute discretion, that the Client’s UTA has a Negative Balance or an amount lower than the Collateral. In which case, the Exchange shall duly notify the Client of such and that it will initiate a Set-Off Settlement process (the “Set-Off Settlement Process”).

 

6.3 Set-Off Process. Negative Balances shall be NAVed in USDT Market Rates. The Client understands and accepts that all Delegated Assets shall first be applied towards Negative Balances before the remainder (if any) reflects as Balances. The Client further agrees and accepts that the Exchange shall have the sole discretion to determine the priority of assets to Set-Off (the “Set-Off Waterfall”) without prior notice or approval from the Client and that the Client shall not contest or dispute the Set-Off Waterfall.

 

6.4 In the event of a partial set-off or Delayed Set-Off, the Exchange shall allow the Client to proceed with the Settlement, in which the Exchange will proceed to collect from the Client such digital assets from the CVA for purposes of the Collateral Crediting and concurrently transfer such digital assets (if any) as part of the Collateral Debiting.

 

6.5. To the extent permitted by applicable law, Client pledges to Exchange a continuing first priority security interest in, a general lien upon and an equitable charge over the entire amount of in the Clients CVA (“Security Interest”), and the Exchange agrees to accept such Security Interest over the entire amount of assets in the Client’s CVA until any and all fees, charges and liabilities that Client owes to Exchange have been paid.  Parties agree that in the event of a Negative Balance situation occurring and/or where a Set-Off Settlement Process is initiated, Exchange shall be entitled to exercise its rights on the security interest, lien or charge

 

 

7. FEES AND EXPENSES

7.1 As Collateral Debiting involves the transfer of excess assets from the Platform to the CVA, and the CVA is an independent Address from the Platform, the Client understands, accepts and undertakes to pay all prevailing Withdrawal Fees incurred and charged by the Exchange from time to time, as stipulated by the Exchange and set out in the Platform, for processing Collateral Debiting. Further, the Client accepts and authorizes the Exchange to debit the Withdrawal Fees pursuant to a Collateral Debiting from each Collateral Debiting. The Client agrees to pay the fees as set out in Schedule A.

 

 

8. CONFLICT

8.1 Notwithstanding anything in the UTA Agreement, the provisions of this OE Agreement shall prevail. The terms of the TPC Indemnity Agreement or TOS shall prevail over the terms of this OE in a conflict.

 

 

9. TERMINATION

9.1 This Agreement shall survive perpetually, commencing from the Effective Date until terminated mutually by both Parties in writing or in the event the UTA Agreement or TPC Indemnity Agreement is terminated.

 

9.2. The aforesaid termination shall be without prejudice to the right of Exchange in respect of any antecedent breach of the terms in this OE Agreement and shall not affect the validity, continuance, or effectiveness of the provisions in this OE Agreement, which are intended to survive such termination.

 

 

10. INDEMNIFICATION

10.1 The Client shall defend, indemnify, and hold harmless Exchange and its past, present, and future employees, officers, directors, managers, members, subsidiaries, affiliates and successors (individually and collectively, the “Indemnified Parties”), from and against all actual or alleged claims, charges, fines, penalties, legal costs, losses other costs and damages (each a “Claim”) to the fullest extent permitted by law, that are caused by, incurred from, arise out of, or are related to:

1. any failure to transfer Collateral to Exchange at each Settlement Cycle for any reason whatsoever;

2. any misrepresentations made by Client to Exchange in respect of the Collateral, regardless of whether such representation was relied upon by Exchange;

3. any gross negligence, intentional or wilful misconduct, or act or omission of the Client or its employees, agents, contractors, or representatives arising from the failure to meet the obligations of this OE Agreement; and/or

4. the Client’s use of the services provided by Exchange pursuant to this OE Agreement.

 

(each a “Loss”).

 

10.2 In the event that any of the Indemnified Parties is named as a defendant in, or is otherwise obligated to defend, any action asserting any Claim indemnifiable hereunder, the Client will assume, at its expense, the defence of such action on behalf of such Indemnified Parties, provided that, to the extent any of the terms of any proposed settlement thereof affect the Indemnified Parties’ rights or obligations arising hereunder, no such terms will be agreed to without the Indemnified Parties’ prior written approval, which may not be unreasonably withheld, conditioned or delayed.

 

 

11 SEVERABILITY

11.1 In the event that any term, condition or provision contained in this OE Agreement or the application of any such term, condition or provision shall be held by a court of competent jurisdiction to be wholly or partly illegal, invalid, unenforceable or a violation of any applicable law, statute or regulation of any jurisdiction (the “Affected Provision”), the same shall first be deemed, to the maximum extent permissible, to effect the intent of the Parties; whereas the remaining terms and provisions of this OE Agreement shall remain in full force and effect as if such term, condition and provision had not originally been contained in this OE Agreement.

 

11.2 Where the Affected Provision(s) renders the continuing performance of this OE Agreement impossible, or materially changes either Party’s rights or obligations under this OE Agreement by existence, the same shall be deemed to the maximum extent permitted by law to be deleted from this Agreement and shall be of no force and effect.

 

11.3 Notwithstanding the aforesaid Clauses 11.1 and 11.2, the Parties shall negotiate in good faith in order to agree to terms of mutually acceptable and satisfactory alternative provisions in place of the provision(s) so deleted.

 

 

12. WAIVER

12.1 No waiver of any breach of any covenant, condition, stipulation, obligation, or provision contained or implied in this OE Agreement shall operate or be interpreted as a waiver of another breach of the same or of any covenant, condition, stipulation, obligation, or provision in this OE Agreement provided hereunder or by law. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of a breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

 

 

13. AMENDMENT

13.1 This OE Agreement shall not be varied, amended or modified by either Party in any manner whatsoever unless such variation, amendment or modification is mutually discussed and agreed to in writing and duly executed by both Parties.

 

 

14. NON-ASSIGNMENT

14.1 Neither this OE Agreement nor any right or duty under this OE Agreement may be transferred, assigned, or delegated by a Party, by operation of law or otherwise, without the prior written consent of the other Party, and any attempted transfer, assignment or delegation without such consent shall be void and without effect.

 

14.2 Notwithstanding the foregoing and subject to the other provisions of this OE Agreement, either Party may assign this OE Agreement to any successor to substantially all of its business or assets to which this OE Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise provided that:

1. this OE Agreement shall be binding upon and enforceable against any successor, permitted assignee, or transferee;

2. any successor, permitted assignee, or transferee shall agree in writing to comply with all terms and conditions of this OE Agreement; and 

3. any assignment shall not exceed the existing scope of this OE Agreement.

 

 

15. NOTICES

15.1 Except as otherwise provided in this OE Agreement, notices which are required to be given under or permitted by this OE Agreement shall be in writing (unless expressly stated otherwise) and sent to the other by e-mail and at the addresses specified in writing and communicated to the other Party, or sent to such Party at any other place specified in a notice of change of address hereafter received by the other Party. Any notice, statement, demand or other communication hereunder will be deemed effective on the day and at the time on which it is sent. Any Party may at any time and from time to time change its address for service by notice given to the other Party at least two (2) Business Days prior to such change in the manner aforesaid.

 

15.2 Every notice or communication so sent as set out under this Clause 14 shall be deemed to have been properly served and validly on the Parties. 

 

 

16. ENTIRE AGREEMENT

16.1 This OE Agreement contains the entire agreement between the Parties concerning the Subject Matter hereof and supersedes all prior agreements, understandings, discussions, negotiations, and undertakings, whether written or oral, between the Parties with respect thereto. No waiver of any of the provisions of this OE Agreement shall be deemed to be or shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver.

 

 

17. GOVERNING LAW

17.1 This OE Agreement shall be deemed to be made in Singapore, and subject to, governed by and construed in all respects in accordance with the laws of Singapore for every intent and purpose.

 

 

18. DISPUTE RESOLUTION

18.1 In the event of any dispute or difference arising out of, in connection with, or in relation to this OE Agreement, or the existence, validity, termination, application, or interpretation of this OE Agreement or any of its provisions, both Parties shall use their best endeavours to settle the dispute informally by agreement or negotiation between the Parties. Both Parties shall always act in good faith and co-operate with each other to resolve any disputes.

 

18.2 Notwithstanding anything in this OE Agreement, if the dispute is not settled in accordance with Clause 18.1 above, no Party shall proceed to litigation or any other form of dispute resolution unless the Parties have made reasonable efforts to resolve the same through mediation in accordance with the mediation rules of the Singapore Mediation Centre. A Party who receives a notice for mediation from the other Party shall consent and participate in the mediation process in accordance with this clause.

 

18.3 Failure to comply with this Clause 18 shall be deemed to be a breach of this Agreement.

 

18.4 In the event that mediation is unsuccessful, the dispute shall be resolved either by reference to arbitration or by court proceedings as elected by either Party, by way of a written notice to the other Party, which shall state the specific dispute to be resolved and the nature of such dispute.

 

18.5 Any reference to arbitration in Singapore shall be a submission to arbitration within the meaning of the Arbitration Act for the time being in force in Singapore. Such arbitration shall be conducted in the English language and in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which are deemed to be incorporated by reference into this clause, except in so far as such SIAC Rules conflict with the provisions of Clause 18 herein, in which event the provisions of Clause 17 herein will prevail.

 

18.6 The arbitration tribunal shall consist of one (1) arbitrator to be appointed by mutual agreement between the Parties. Either Party may propose to the other the name or names of one (1) or more persons, one (1) of whom should serve as an arbitrator. If no agreement is reached within thirty (30) days after receipt of such a proposal from a Party, the arbitrator shall be appointed by the Chairman of the Singapore International Arbitration Centre.

 

18.7 The arbitrator must not be a present or former employee or agent of, or consultant or counsel to, or related corporation of, either Party.

 

18.8 Any decision or award of an arbitration tribunal appointed pursuant to this clause will be final and binding on the Parties.

 

18.9 Interest at the annual rate of six percent (6%) per annum will be due and payable to the Party in receipt of an arbitration award from such date as the arbitral tribunal may decide until the date of payment to such Party.

 

18.10 The Parties hereto undertake to keep the arbitration proceedings and all information, pleadings, documents, evidence, and all matters relating thereto confidential.

 

18.11 The application of Part II of the International Arbitration Act 1994 of Singapore, and the Model Law referred thereto, to this Agreement is hereby excluded.

 

18.12 For the avoidance of doubt, it is agreed that nothing in this Clause 18 shall prevent a Party from seeking urgent equitable relief before any appropriate court and the commencement of any dispute resolution proceedings shall in no way affect the continual performance of the Parties’ obligations under this Agreement.

 

 

 

 

 

SCHEDULE A

 

Payment of Fees:

 The Client agrees that Exchange may at its own and absolute discretion (i) claim as disbursements, or (ii) deduct from either the Settlement sum or Balances, any gas fees incurred by the Exchange for the processing of Settlements between Client’s UTA and CVA Addresses (the “Withdrawal Fees”).

 

The Exchange reserves the right to review the rates and bases of its fees and charges periodically. Should the Exchange decide to make any changes to its fees, the Exchange shall notify the Client of such changes by giving the Client at least thirty (30) days written notice.