This THIRD-PARTY CUSTODY INDEMNITY AGREEMENT (the “Agreement”)  forms a binding agreement between Bybit Technology Limited (the “Exchange”, “Company”, “we”, “us” or “our”) and certain customers (the “Client”, ”you”, “your”) who desire to use Third-Party Custodians (“TPC”) (as further defined below) for the custody of assets external to the Exchange (each a “Party” and collectively the “Parties”). If you do not agree to any terms of this Agreement, you must immediately close any contractual positions where part or all of the Collateral (as defined below) are held with a TPC (as defined below).

 

 

1. BACKGROUND

1.1 The Company provides users access to a trading platform (the “Platform”). The Client is a user of the Platform.

 

1.2 In the ordinary course of business, the Client deposits assets on the Platform to trade. These assets (the “Collateral”) are pledged or to be pledged or used as security to allow the Client to enter into contractual positions (“Obligations”) larger than the underlying Collateral.

 

1.3 The Client wishes to custodize its Collateral with a party external  to the Platform (a “Third-Party Custodian” or “TPC”).

 

1.4 The custody of Collateral with a TPC external to the Platform reduces the security and effectiveness of the Collateral to secure the Obligations of the Client.  In particular, the Company faces the risk of Obligations unsettled where the TPC refuses or is unable to deliver Collateral as security.

 

1.5 Further, the Company, Client and TPC have entered into agreements (the “TPC Agreements”) relating to the settlement and processing of Collateral held with and by the TPC.

 

1.6 The Company is agreeable to the Client entering into Obligations where part or all of the Collateral are held with a TPC provided if subject to the terms set out herein, the Client waives, discharges and indemnifies the Company from any and all direct or indirect economic and third-party damages arising from the Clients’ use of a TPC.

 

 

2. DEFINITIONS AND INTERPRETATIONS

2.1. In this Agreement, the following capitalised terms (including words defined in this Agreement and the Recitals), words, and phrases, when used in either the singular or plural, shall have the following meanings, unless the context otherwise requires:

 

 

2.2. 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.

 

2.3. 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.

 

2.4. 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.

 

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

 

2.6. The word control (including its correlative meanings, controlled by, controlling and under common control with) shall mean, with respect to a corporation, the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the controlled corporation and, with respect to any business or person other than a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such business or person.

 

 

3. DOUBLE COLLATERLIZATION

3.1. The Client undertakes with regards the TPC Agreements not to collateralize Collaterals held on the TPC that are pledged as security for the Obligations on the Platform to any other third party.

 

 

4. WAIVER AND DISCHARGE

4.1. Notwithstanding any provision in any other agreement. The Client waives, disclaims and discharges the Company from all actual or alleged claims, charges, fines, penalties, legal costs, losses, other costs and damages arising from the Client’s use of the TPC services. For the avoidance of doubt, this provision does not apply to Collateral provided that such Collateral has not been disputed by the Company.

 

 

5. CONFLICT

5.1. Notwithstanding anything in the TPC Agreements, the provisions of this Agreement shall prevail.

 

 

6. TERMINATION

6.1. This Agreement shall survive perpetually commencing from the first-mentioned date until terminated mutually by both Parties in writing.

 

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

 

 

7. INDEMNIFICATION

7.1. The Client shall defend, indemnify, and hold harmless the Company 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 by the TPC to transfer Collateral to the Company on demand by the Company for any reason whatsoever;

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

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 TPC Agreements; and/or

4. the Client’s use of any TPC.

(each a “Loss”).

 

7.2. 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.

 

 

8. SEVERABILITY

8.1. In the event that any term, condition or provision contained in this 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 Agreement shall remain in full force and effect as if such term, condition and provision had not originally been contained in this Agreement.

 

8.2. Where the Affected Provision(s) render the continuing performance of this Agreement impossible, or materially change either party’s rights or obligations under this 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.

 

8.3. Notwithstanding the aforesaid Clause 8.1 and Clause 8.2, the Parties hereto 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.

 

 

9. WAIVER

9.1. No waiver of any breach of any covenant, condition, stipulation, obligation, or provision contained or implied in this 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 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 one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

 

 

10. AMENDMENT

10.1. This 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.

 

 

11. NON-ASSIGNMENT

11.1. Neither this Agreement nor any right or duty under this 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 will be void and without effect.

 

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

1. this 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 Agreement; and 

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

 

 

12. NOTICES

12.1. Except as otherwise provided in this Agreement, notices which are required to be given under or permitted by this 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. 

 

 

13. ENTIRE AGREEMENT

13.1. This 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 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.

 

 

14. GOVERNING LAW

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

 

 

15. DISPUTE RESOLUTION

15.1. In the event of any dispute or difference arising out of or in connection with or in relation to this Agreement or the existence, validity, termination, application, or interpretation of this 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.

 

15.2. Notwithstanding anything in this Agreement, if the dispute is not settled in accordance with Clause 15.1 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.

 

15.3. Failure to comply with this Clause 15 shall be deemed to be a breach of this Agreement.

 

15.4. 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.

 

15.5 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 in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference into this clause, except in so far as such Rules conflict with the provisions of Clause 15 herein, in which event the provisions of Clause 14 herein will prevail.

 

15.6 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 or more persons, one of whom should serve as an arbitrator. If no agreement is reached within thirty (30) days after receipt by one Party of such a proposal from the other, the arbitrator shall be appointed by the Appointing Authority.

 

15.7 The Appointing Authority shall be the Chairman of the Singapore International Arbitration Centre.

 

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

 

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

 

15.10 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.

 

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

 

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

 

15.13. For the avoidance of doubt, it is agreed that nothing in this Clause 15 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.