Binance Australia Derivatives Wholesale Client Terms of Business
Version: 24 June 2022
Whenever used in this Agreement, unless inconsistent with the subject matter or context, the following words shall have the following meanings:
Account or Derivatives Trading Account means the Client’s Binance Australia Derivatives trading account which operates under the terms of this Agreement and allows the Client and the nominated Authorised Users to enter into CFD transactions with Binance Australia Derivatives;
Account Opening Form means the form that the Client is required to complete in order to open an Account;
Agreement means these Wholesale Client Terms of Business together with all other documents which are referred to in these Wholesale Client Terms of Business;
Authorised User has the meaning given in clause 8.1.1 of this Agreement;
Binance Australia has the meaning given to it in clause 11.1 of this Agreement;
Binance Australia Derivatives means Oztures Trading Pty Ltd ABN 77 142 898 324, Australian Financial Services License number 425165;
Binance Australia Derivatives Website means the Binance Australia Derivatives website located at https://www.binance.com/en-AU or such other website as nominated by Binance Australia Derivatives from time to time;
CFD means a Contract For Difference, which is a type of Contract. A CFD is an agreement to pay or receive the change in value of an underlying instrument depending on whether the price of the underlying instrument rises or falls;
Client, you or your means the Client named in the Account Opening Form, together with its officers, directors, employees and agents, and its subsidiaries, affiliates, successors and/or assigns;
Contract means a transaction in which the Client agrees to purchase or sell a CFD from or to Binance Australia Derivatives or enter into any other transaction with Binance Australia Derivatives relating to the provision of the Services under the applicable Contract Specifications. Binance Australia Derivatives is the counterparty to each Contract;
Contract Specifications has the meaning provided in clause 8.2.3 of this Agreement;
Day means a day on which commercial banks are open for business (including dealings in foreign exchange) in Melbourne, Australia;
Default Event means any acts or omissions on the part of:
a. the Client;
b. an Authorised User; or
c. the Client’s or an Authorised User’s employee, agent or assignee (whether or not known to Binance Australia Derivatives and whether or not acting in concert with other natural persons or algorithmic tools) which in Binance Australia Derivatives ’s sole discretion, are deemed as being:
iii. wilful misconduct including (but not limited to) commission churning, sniping, causing or contributing to or benefitting from a Quoting Error, moving the price of an Underlying Instrument or Contract, scalping, arbitraging off-market pricing, money laundering, different accounts being traded by one trader simultaneously, churning, trading patterns such as risking all the trading equity in large one-directional trades, use of excessive leverage, same electronic identification point (i.e. IP address) as other clients or communication with other clients, placement of opposing orders so as to abuse guaranteed fill;
iv. a breach of any provision, obligation, warranty or representation made under this Agreement (including any information provided to Binance Australia Derivatives in connection with this Agreement that is, or has become untrue or misleading);
v. a failure at any time or for any period deemed reasonable by Binance Australia Derivatives to respond to any Notice or correspondence from Binance Australia Derivatives;
vi. taking advantage of what Binance Australia Derivatives considers to be abnormal trading; or
vii. the violation of any Law;
Digital Assets means a digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology, including, but not limited to, cryptocurrencies, stablecoins, non-fungible tokens and tokenised derivatives of any other digital asset;
Disturbance Notice has the meaning stated in clause 10.2.1 of this Agreement;
Division Event means any event having, or with the potential to have, a diluting or concentrating effect on the value of, or the effect of changing the nature of, any Underlying Instrument not based on shares (including but not limited to Digital Assets) whether temporary or otherwise;
Force Majeure Event means events or causes including, but not limited to, the following: an act of God, unavoidable accident of navigation, war (whether declared or not), sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone, earthquake, landslide, explosion, power or water shortage, failure of a transmission or communication network, pandemic, epidemic, quarantine, strike or other labour difficulty or expropriation, restriction, prohibition, law, regulation, decree or other legally enforceable order of a government agency, breakage or accident, change of International, State or Commonwealth law or regulation or any damage of Binance Australia Derivatives 's machinery or systems, unless occurring as a result of an act, omission, default or negligence of the Client or Binance Australia Derivatives;
Funding Fee has the meaning given to it in clause 8.5.1 of this Agreement;
Funding Times has the meaning given to it in clause 8.5.2 of this Agreement;
General Financial Product Advice or General Advice is as defined in the Corporations Act 2001 (Cth) as varied from time to time;
Initial Margin has the meaning given to it in clause 8.6.1 of this Agreement;
Insolvency Event means any of the following: a.
a. an order, or an application for an order, is made by or to a court:
i. that a corporate Client be wound up; or
ii. appointing a liquidator or provisional liquidator for a corporate Client;
b. a liquidator, provisional liquidator or controller is otherwise appointed to a corporate Client;
c. a resolution is passed to appoint an administrator to a corporate Client;
d. a corporate Client enters into a deed of arrangement or propose a reorganisation, moratorium or other administration involving all or any of the Client’s creditors;
e. a corporate Client is dissolved or wound up in any other way;
f. the Client is unable, or states that they are unable, to pay their debts as and when they fall due, or otherwise states that they are insolvent;
g. the Client seeks or obtains protection from any of their creditors under any legislation;
h. the Client commits an act of bankruptcy as defined in the Bankruptcy Act 1966 (Cth) as varied from time to time;
i. a bankruptcy petition is presented in respect of the Client or, if the Client is a member of a partnership, in respect of one or more of the partners;
j. any security interest becomes enforceable against the Client and the beneficiary of that security interest takes steps to enforce the security or charge; or
k. any other event having substantially the same legal effect as the events specified in (a) to (j) above.
Intellectual Property means the trade marks, designs, patents and copyrights of the parties to this Agreement;
Internet means the interconnected system of networks that connects computers around the world, and includes any online trading platform provided by or on behalf of Binance Australia Derivatives;
Instructions is defined in clause 8.2.2 of this Agreement;
Law means the statutes, regulations and general law of the Commonwealth of Australia, and of Victoria, Australia, and includes the Corporations Act 2001 and Corporations Regulations 2001 as varied from time to time;
Margin Balance means the Client’s available margin or net equity, as allocated on the Trading Platform and means the sum, from time to time, of:
(a) Property allocated to the Client’s Account; and
(b) to the extent not referred to in (a), any Unrealised P/L connected to the Account;
Margin Call has the meaning given to it in clause 8.6.3 of this Agreement;
Maintenance Margin has the meaning given to it in clause 8.6.2 of this Agreement;
Notice has the meaning stated in clause 12.1 of this Agreement;
Open Position is where a Client has entered into a Contract or transaction with Binance Australia Derivatives, and a further Contract or transaction has not been entered into in order to close the position;
Order means an offer that you make to us to enter into a Contract in accordance with this Agreement;
Personal Financial Product Advice or Personal Advice means Personal Advice as defined in the Corporations Act 2001 (Cth) as varied from time to time;
Personal Information is as defined in the Privacy Act 1988 (Cth) as varied from time to time.
Price has the meaning given to that term in clause 8.2.4;
Prescribed Digital Assets means Property in the form of Digital Assets of the type that Binance Australia Derivatives has specified it accepts to satisfy Initial Margin, Maintenance Margin and Margin Call requirements in connection with a particular CFD (each a Prescribed Digital Asset and together, the Prescribed Digital Assets);
Property has the meaning stated in clause 11.1 of this Agreement;
Quoting Error has the meaning stated in clause 8.10.1 of this Agreement;
Representatives is as defined in the Corporations Act 2001 (Cth) as varied from time to time;
Retail Client has the meaning given to it by the Corporations Act 2001 (Cth) as varied from time to time;
Related Entity is as defined in the Corporations Act 2001 (Cth) as varied from time to time;
Services means the provision by Binance Australia Derivatives of General Advice to the Client and/or the execution and performance of Contracts relating to CFD transactions;
Sophisticated Investor means a person who would be a Wholesale Client only through application of section 761GA of the Corporations Act 2001 (Cth);
Spot Trading Account has the meaning given to it in clause 11.1 of this Agreement;
Trading Fees has the meaning given in clause 8.4.1 of this Agreement;
Trading Platform means Binance Australia Derivatives’ password protected electronic trading systems, software services and portals (including via web access, API and/or mobile application) that Binance Australia Derivatives makes available to Clients from time to time in connection with the Services;
Trading Rules means the rules that apply to Contracts, as are made available on the Trading Platform from time to time;
Underlying Instrument means the Digital Asset (including the relevant stablecoin or other relevant cryptoasset) whose price or value provides the basis for Binance Australia Derivatives to determine the Price of the Contract;
Unrealised P/L means a Client’s Unrealised Profits minus the Client’s Unrealised Losses. Information as to Unrealised P/L is available on the Trading Platform;
Unrealised Losses means the losses that have not yet been realised on Open Positions before closure or expiry;
Unrealised Profits means the profits that have not yet been realised on Open Positions before closure or expiry;
Wholesale Client has the same meaning as in section 761G of the Corporations Act 2001 (Cth) but does not include a Sophisticated Investor; and
Wholesale Client Information Statement means Binance Australia Derivatives’ Wholesale Client Information Statement available on the following webpage: https://www.binance.com/en-AU/wholesale-client-information-statement (or on such other webpage as notified by Binance Australia Derivatives from time to time).
2.1 This Agreement shall be interpreted as follows:
- clause headings in this Agreement are for convenience only and shall not govern the meaning or interpretation of any provision of this Agreement;
- the words “include” or “including” shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases or words of like import, and “otherwise” shall not be construed as limited by words with which it is associated;
- any undertaking to do or not do a thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing; and
- words importing the singular shall include the plural and vice versa and words importing the masculine shall include the feminine and neutral and vice versa.
3. This Agreement
3.1 This Agreement is a master agreement and sets out the terms and conditions upon which Binance Australia Derivatives provides the Services to Clients. This Agreement constitutes a binding agreement between the Client and Binance Australia Derivatives and governs the Client’s use of the Services made available on or through the Trading Platform or otherwise.
3.2 By registering for an Account, accessing the Trading Platform and/or using the Services, the Client agrees that they have read, understood and accepted all of the terms and conditions in this Agreement and the Client acknowledges and agrees that they will be bound by and will comply with the terms of this Agreement. This Agreement expressly supersedes any prior agreements or arrangements with the Client with respect to the Services.
3.3 This Agreement includes Binance Australia Derivatives’ Account Opening Form, Wholesale Information Statement and any other contracts or documents that may have been exchanged and/or executed between the Parties. In the event of any inconsistency between this Agreement, the Binance Australia Derivatives Account Opening Form and other contracts or documents, exchanged and/or executed between the Client and Binance Australia Derivatives, this Agreement shall prevail to the extent of the inconsistency.
3.4 In the event of any inconsistency between the English language version of each of the documents described in clause 3.3 above and their translated equivalent in any other language, the English language version shall prevail, to the extent of any inconsistency.
3.5 In entering into this Agreement, the Client acknowledges that:
- the Client is solely responsible for determining whether to open an Account and enter into Contracts or other transactions with Binance Australia Derivatives;
- the Client has been given an opportunity to read and consider the Wholesale Client Information Statement;
- Binance Australia Derivatives recommends that the Client obtains independent legal, financial and/or taxation advice prior to entering into this Agreement and entering into any Contracts or other transactions with Binance Australia Derivatives;
- Binance Australia Derivatives has not, and will not, provide the Client with Personal; Advice; and
- Binance Australia Derivatives will not be held responsible for the Client’s decisions to enter into any Contracts or other transactions with Binance Australia Derivatives and will not have any liability for any losses arising from such decisions.
4. Our Services and risks
4.1 Binance Australia Derivatives provides the Services being, General Advice and execution-only CFD trading services. The Client acknowledges that if Binance Australia Derivatives provides General Advice, then the advice is general only and does not consider or take into account the personal objectives, circumstances or needs of the Client. The Client must consider their own objectives, circumstances and needs and should consider obtaining independent financial advice before making a decision to use any of the Services. General Advice is provided by Binance Australia Derivatives without charge. Binance Australia Derivatives will not provide Clients with Personal Advice.
4.2 If the Client does not fully understand the risks associated with the Services, then the Client should not use the Services.
4.3 This Agreement is prepared only for Wholesale Clients and Sophisticated Investors. As a Wholesale Client or Sophisticated Investor, the Client does not receive the same investor protections and disclosure documents as those provided to a Retail Client. This includes, but is not limited to, the protections the Client will not receive under the ASIC Corporations (Product Intervention Order – Contracts for Difference) Instrument 2020/986.
4.4 If the Client (or any one of the Clients where the Client is comprised of more than one individual) ceases to be a Wholesale Client or Sophisticated Investor during the term of this Agreement, the Client has an obligation to immediately notify Binance Australia Derivatives.
4.5 If Binance Australia Derivatives is notified by the Client that they are no longer a Wholesale Client or a Sophisticated Investor, or Binance Australia Derivatives reasonably suspects that the Client is no longer a Wholesale Client or Sophisticated Investor, Binance Australia Derivatives will suspend or terminate this Agreement in accordance with its powers under this Agreement and will cease providing the Services.
5. Client representations and warranties
5.1 The Client represents and warrants, on a continuing basis throughout the term of this Agreement that, in the case where the Client is an individual or a group of more than one individuals, that they are over the age of 18 and have capacity to enter into this Agreement and, where the Client is a legal entity (including a firm or corporation), that it is duly constituted and validly incorporated and possesses the requisite power and authority to enter into this Agreement.
5.2 The Client represents and warrants that all Contracts, and this Agreement, are and will constitute legally binding and enforceable obligations of the Client.
5.3 If the Client enters into this Agreement in its capacity as trustee of a trust, the Client makes the following representations and undertakings to Binance Australia Derivatives on a continuing basis throughout the term of this Agreement:
- the relevant trust instrument is valid and complies with all applicable laws;
- the Client is properly appointed as trustee of the trust;
- the Client has a right of indemnity from the trust assets in respect of this Agreement and the transactions contemplated by it;
- the Client will comply with its duties as trustee of the trust;
- the Client will not do anything which may result in the loss of its right of indemnity from the trust assets;
- if the Client is replaced or joined as trustee of the trust, the Client will make sure the new trustee becomes bound to Binance Australia Derivatives’ satisfaction by this Agreement and any other agreement relating to a Contract or transaction contemplated by this Agreement to which the Client is expressed to be a party, or by a document which is identical in effect;
- the Client will not resettle, set aside or distribute any of the assets of the trust without Binance Australia Derivatives’ written consent unless compelled to do so by the trust instrument;
- the Client will not amend or vary the trust instrument without Binance Australia Derivatives’ written consent; and
- If the Client is not the sole trustee of the trust it is a requirement that each and every trustee agrees in writing to be bound by the terms of this Agreement and by any Contracts and transactions entered into in connection with this Agreement.
5.4 The Client further represents and warrants to Binance Australia Derivatives on a continuing basis throughout the term of this Agreement that:
- the execution and delivery by the Client of this Agreement, and performance of all of the Client’s obligations contemplated under this Agreement, does not violate any law applicable to the Client;
- all information provided by the Client to Binance Australia Derivatives is true, correct and complete, and the Client will notify Binance Australia Derivatives promptly upon becoming aware of any changes to such information;
- all information provided by the Client and the Client's conduct or the conduct of anyone acting on its behalf in relation to this Agreement and the Contracts and transactions contemplated by it, was or is not misleading, by omission or otherwise;
- the Client shall make ongoing disclosure to Binance Australia Derivatives of any matters that may affect the operation of this Agreement or of the ability of the Client to meet Margin Calls or to remain solvent;
- the Client is not restricted by any applicable laws from using the Trading Platform;
- the Prescribed Digital Assets provided by the Client is Property that the Client is entitled to use and is not derived from illegal sources;
- the information on the Trading Platform will not be used for unlawful or unauthorised purposes;
- the Client will not “deep-link” the Binance Australia Derivatives Website, resell or permit access to the Binance Australia Derivatives Website to others or copy any materials appearing on the Binance Australia Derivatives Website for resale or for any other purpose without the prior written consent of Binance Australia Derivatives; and
- the Client is a Wholesale Client or a Sophisticated Investor.
5.5 The Client acknowledges that any Services provided under this Agreement, including the entry into the contemplated Contracts and transactions, will be provided by Binance Australia Derivatives in reliance on the representations and warranties made by the Client pursuant to this Agreement.
5.6 If the Client is comprised of two or more legal persons then a reference to a right or obligation of the Client under this Agreement or under a Contract or transaction contemplated by this Agreement confers that right or imposes that obligation, as the case may be, jointly and severally on those persons, to the extent permitted by this Agreement.
6.1 Use of Personal Information
Personal Information collected by Binance Australia Derivatives is treated as confidential and is protected by the Privacy Act (Cth) 1988. Binance Australia Derivatives will only collect Personal Information which is necessary to perform the Services.
6.2 Confidentiality of Client Information
6.2.1 Binance Australia Derivatives will use reasonable precautions to maintain the confidentiality of information it receives from the Client and material and/or data the Client provides, creates, inputs or develops in connection with the Client’s use of the Trading Platform and the Services. Nonetheless, because such information, material and/or data may be provided through the Internet, the Client hereby acknowledges and agrees that Binance Australia Derivatives cannot assure that such information, material and/or data will continue to be confidential.
6.2.2 The Client accepts the risk of a third party receiving confidential information concerning the Client and specifically releases, holds harmless and agrees to fully indemnify Binance Australia Derivatives from any claim arising out of a third party intercepting, accessing, monitoring or receiving any communication from a Client intended to be provided to Binance Australia Derivatives or from Binance Australia Derivatives intended to be provided to the Client.
6.2.3 The Client acknowledges and agrees that Binance Australia Derivatives may, subject to clause 6.2.4, disclose the Client’s name and other personal and financial information about the Client, and any relevant details of an Authorised User, to its employees, Representatives, officers, agents, and affiliates, as well as to a governmental entity or self-regulatory authority, an Internet service provider or any other third party agent or service provider for any purpose related to offering, providing, administering or maintaining the Services, or to comply with applicable laws.
6.3 Money Laundering
6.3.1 The Client accepts that in appropriate cases, all communications and information concerning the Client held by Binance Australia Derivatives, may be disclosed to and reviewed by law enforcement agencies and governmental and regulatory authorities. In addition, the Client agrees to comply with all applicable money laundering and counter terrorism financing laws (including, without limitation, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (and related rules and regulations)), as well as the requirement to obtain or provide satisfactory evidence of the identity of any person whom the Client may represent in any Contract or transaction entered into with Binance Australia Derivatives.
6.3.2 The Client agrees and consents to Binance Australia Derivatives (or its agents) making a verification request to a credit reporting body to assist in verifying the Client’s identity for the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (and related rules and regulations). The Client also agrees and consents to the disclosure of their Personal Information for this purpose including the Client’s name, residential address and date of birth.
7.1 Indemnity and Survival
7.1.1 The Client shall fully indemnify and hold Binance Australia Derivatives harmless from any and all liabilities, claims, costs, expenses and damages of any nature, including, but not limited to, reasonable legal fees and any fees and expenses incurred in connection with litigation, arising out of or relating to the Client or an Authorised User’s negligence, mistake, fraud or wilful misconduct, the violation of any Law by the Client, or the breach by the Client of any provision of this Agreement or if a Default Event occurs.
7.1.2 The Client also agrees to promptly pay Binance Australia Derivatives for all damages, costs and expenses, including reasonable legal fees and expenses, incurred by Binance Australia Derivatives in the enforcement of any of the provisions of this Agreement. The Client's obligations under this clause shall survive the termination of this Agreement.
7.1.3 In calculating or mitigating its loss due to a Default Event, Binance Australia Derivatives is entitled to:
- crystalise, unwind, reverse, repair or close any Open Positions by closing any open Contracts; and/or
- nominate the date on which the open Contracts are valued; and/or
- nominate the methodology used to calculate the open Contracts’ value; and/or
- immediately require the provision of any Property the Client owes to Binance Australia Derivatives including any Margin Calls; and/or
- terminate this Agreement and close the Client’s Account; and/or
- limit the size of the Client’s Open Positions either in value or in the number of Contracts; and/or
- refuse Orders to establish new Contracts; and/or
- convert any ledger balances to the Base Currency of the Account; and/or
- exercise Binance Australia Derivatives’ rights of set off; and/or
- impose new Initial Margin and/or Maintenance Margin requirements to the Client’s trading or Account; and/or
- withdraw the provision of any credit, in relation to the Client’s Account; and/or
- suspend the Client’s Account; and/or
- open one or more new Contracts on the Client’s Account; and/or
- call on any guarantee in respect of the Client’s obligations; and/or
- require the Client to immediately close out any Open Position or settle any Contract in such a manner as Binance Australia Derivatives reasonably determines necessary; and/or
- combine, close or consolidate any Accounts and offset any amounts or Property owed to, or by, Binance Australia Derivatives in such manner as Binance Australia Derivatives may in its absolute discretion determine; and/or
- retain any amount or Property owed by Binance Australia Derivatives to the Client against any contingent liability of the Client’s to Binance Australia Derivatives for so long as the contingency subsists; and/or
- take any other action that Binance Australia Derivatives determines to be reasonably necessary to protect its legitimate interests.
7.1.4 Nothing in this Agreement is intended to limit or exclude any liability Binance Australia Derivatives may owe the Client under any statutory rights the Client may have.
7.1.5 Binance Australia Derivatives’ recourse is not limited in any way if the Client incurs a liability under a Contract.
7.2 Compliance with Law
This Agreement shall be governed by and construed in accordance with the laws of Victoria, Australia. The parties agree to irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
7.3 Intellectual Property
7.3.1 At no time shall either party enter into commitments for or in the name of the other party or use their Intellectual Property for any purpose whatsoever. Except as specifically provided for in this Agreement, neither party will:
(a) use the other party’s name or Intellectual Property without the prior written approval of the other party; or
(b) represent itself as being affiliated with, or authorised to act for, the other party.
7.4.1 Any rights or obligations that the Client may have pursuant to this Agreement shall not be assigned, transferred, sold, or otherwise conveyed, except with the prior written consent of Binance Australia Derivatives. Binance Australia Derivatives may, however, transfer any rights or obligations it may have pursuant to this Agreement to another party without the consent of the Client. Such an assignment or novation shall only take place if a reasonable person would not expect it to cause detriment to a typical client of Binance Australia Derivatives. The Client will execute any documents (including a deed of novation) reasonably required by Binance Australia Derivatives to effect such a transfer. If the Client does not agree to Binance Australia Derivatives assigning its rights, the Client may terminate this Agreement. However, termination in this case does not affect any obligations owed by the Client, or rights of Binance Australia Derivatives with regard to any open Contracts held by the Client.
7.5 Amending this Agreement
7.5.1 The terms of this Agreement and any Contracts and transactions under it, may be amended by Binance Australia Derivatives at any time. Binance Australia Derivatives will provide Notice to the Client of any such amendment. The Client agrees to be bound by the terms of such an amendment on the earlier of:
(a) ten Days after Binance Australia Derivatives has posted Notice of the amendment on the Binance Australia Derivatives Website;
(b) upon providing Notice to the Client by email; or
(c) on the date of the Client entering any Contract or transaction after the amendment.
If the Client does not consent to the amendment the Client can cease using the Trading Platform and the Services and terminate this Agreement by written Notice and the amendment will not apply retrospectively. Termination in this case does not affect any obligations owed by the Client, or rights of Binance Australia Derivatives with regard to any open Contracts held by the Client. Any other amendments must be agreed to in writing between the Client and Binance Australia Derivatives.
7.5.2 Clause 7.5.1 does not apply to an existing Contract, if Binance Australia Derivatives reasonably determines the Client would be detrimentally disadvantaged by the amendment.
8. Operation of Client Account
8.1 List of Authorised Users
8.1.1 The Client shall provide Binance Australia Derivatives with a list of people authorised to access the Services and/or enter into Contracts and transactions on the Client’s behalf (each an “Authorised User”). The Client shall immediately notify Binance Australia Derivatives when any new person becomes an Authorised User or when any existing Authorised User is no longer entitled to be an Authorised User. Upon Binance Australia Derivatives receiving such Notice, the change in Authorised User is effective immediately subject to Binance Australia Derivatives collecting and verifying identification documents to its satisfaction. However, the Notice shall not affect any Contracts already executed.
8.1.2 Any appointment of an Authorised User made pursuant to clause 8.1.1 shall remain in full force and effect as an appointment in writing required by the Agreement unless and until Notice of cancellation of appointment and/or replacement has been delivered to Binance Australia Derivatives.
8.1.3 All Instructions given and accepted by an Authorised User will be deemed to be Instructions authorised by the Client and shall be binding on the Client.
8.1.4 Until the Client has provided a Notice to Binance Australia Derivatives to the contrary, Binance Australia Derivatives may continue to assume that all existing Authorised Users have authority to execute legally binding Contracts and transactions with Binance Australia Derivatives.
8.1.5 The Client hereby agrees to fully indemnify and hold Binance Australia Derivatives harmless in respect of any loss incurred by an Authorised User entering into any Contract or other transaction contemplated under this Agreement.
8.1.6 The Client will take reasonable steps to ensure that each Authorised User complies in full with this Agreement.
8.1.7 Binance Australia Derivatives reserves the right at any time to refuse the appointment or continuation of an Authorised User without reason.
8.2 Formation of each Contract
8.2.1 When the Client, or an Authorised User, wishes to enter into a Contract with Binance Australia Derivatives, the Client will need to provide such information as is reasonably required to enable Binance Australia Derivatives to ascertain the terms of the relevant Contract, which information may include the following (as applicable):
- the Client Account number;
- further Client identification details;
- the Contract type;
- whether the Contract is to buy or sell;
- the number of Contracts;
- for Orders, the order type, the order price, the order expiry date or any other order feature Binance Australia Derivatives makes available; and
- such other information as may be requested by Binance Australia Derivatives with respect to the relevant Contract type.
8.2.2 Collectively, though not exhaustively, the information referred to in clause 8.2.1 or any portion thereof, constitutes the Instructions. Instructions shall be provided through the Trading Platform (or, if the Trading Platform is unavailable, may be provided by telephone or other means as notified by Binance Australia Derivatives).
8.2.3 Upon receipt of Instructions from the Client, Binance Australia Derivatives may (but shall not be obliged to) provide the Client with, via the Trading Platform, prices at which the relevant Contract can be purchased or sold. These are the Contract Specifications.
8.2.4 The price of a Contract is determined by reference to the price of the Underlying Instrument which may be quoted on external digital currency exchanges or one or more third party reference sources (including bank and institutional data feeds) selected at Binance Australia Derivatives’ discretion (Price). Any applicable Trading Fees shall be applied at both the entry into and the close-out of an Open Position, unless otherwise notified. The Price may be adjusted by Binance Australia Derivatives considering certain conditions, including trading volumes and liquidity. For Instructions given when the relevant digital currency exchange or reference source is closed or where there is no reference source, the Price will reflect what Binance Australia Derivatives considers the market price of the Underlying Instrument is at that time. The Price and how Binance Australia Derivatives calculates the Price is determined in Binance Australia Derivatives’ absolute discretion and any changes to the Price, which will be communicated via the Trading Platform, are effective immediately.
8.2.5 If the Client, or an Authorised User, indicates by clicking the relevant button on the Trading Platform that they wish to enter into a Contract on the basis of the Contract Specifications provided, the Client shall be deemed to have placed an Order on the basis of such Contract Specifications and Binance Australia Derivatives may accept or reject that Order in its absolute discretion. If Binance Australia Derivatives accepts the Order, then a Contract shall be formed between the Client and Binance Australia Derivatives on the basis of the Contract Specifications. When a Contract is created, the parties shall become bound by the content of the relevant Contract Specifications. If Binance Australia Derivatives rejects the Order, Binance Australia Derivatives shall not be obliged to give a reason for such rejection to the Client, however, Binance Australia Derivatives shall promptly notify the Client that Binance Australia Derivatives has not created a Contract with the Client.
8.2.6 The Client fully indemnifies Binance Australia Derivatives for any error made by the Client or an Authorised User in providing Instructions to Binance Australia Derivatives.
8.2.7 An Open Position with respect to a Contract is closed out in the following circumstances:
(a) when Binance Australia Derivatives accepts an Order to close out of the Contract;
(b) on the expiry date, where the Contract has a set expiry date; or
(c) pursuant to a Forced Liquidation, as described in clause 8.7 of this Agreement.
8.2.8 Where an Open Position is closed out under clause 8.2.7, Binance Australia Derivatives will provide the Client with any Unrealised P/L with respect to such Open Position.
8.2.9 Binance Australia Derivatives’ products include USDS-M Perpetual and Delivery Futures. Further specific features that apply to these products are set out in the Wholesale Client Information Statement.
8.3 Method and Timing of Payment
8.3.1 Unless otherwise agreed in writing between the Client and Binance Australia Derivatives, any amounts that the Client owes to Binance Australia Derivatives or that Binance Australia Derivatives owes the Client must be satisfied in the form of a transfer of Prescribed Digital Assets to the relevant party.
8.3.2 The Client must have sufficient Prescribed Digital Assets allocated to the Account before Binance Australia Derivatives will execute any Contracts. Binance Australia Derivatives will indicate to the Client the Prescribed Digital Assets required to meet the Initial Margin and Maintenance Margin requirements for each Contract.
8.3.3 Binance Australia Derivatives will notify the Client of any change in the Prescribed Digital Assets required to meet the Initial Margin and Maintenance Margin requirements for any Contract by giving Notice and may issue the Client with a Margin Call in respect of any shortfall. Any increase in the Maintenance Margin requirement will be due immediately. 8.4 8.4 Fees 8.4.1 Binance Australia Derivatives may impose certain fees and charges for use of the Services from time to time, including trading fees, liquidation fees and other types of fees that may be applicable with respect to the Services (together, Trading Fees). Applicable Trading Fees may vary between different clients, products and Contracts and will depend on certain factors, such as trading volumes. Trading Fee discounts may be available from time to time, subject to the satisfaction of certain criteria. All Trading Fees shall be applied at both the entry into and the close-out of an Open Position, unless otherwise notified. Further information as to Trading Fees is accessible via the following webpage, as updated from time to time: Fee Rate (or on such other webpage as notified by Binance Australia Derivatives from time to time).
8.4.2 In addition to the Trading Fees, Binance Australia Derivatives may also impose other fees and charges from time to time with respect to the use of the Services, by providing Notice to the Client. If the Client does not consent to such fees or charges, the Client may cease using the Services and may terminate this Agreement by giving Notice to Binance Australia Derivatives and the applicable fees/charges shall not apply to new Contracts. If the Client terminates the Agreement under this clause, all existing Contracts will survive termination of this Agreement.
8.4.3 Binance Australia Derivatives is not responsible for any fees or charges imposed by third party banks or other counterparties, which are incurred by the Client in connection with the use of the Services.
8.4.4 Binance Australia Derivatives may pay referral fees to related bodies corporate, associated entities or third parties in connection with the receipt of client referrals.
8.5 Funding Fee on Open Position
8.5.1 With respect to any Open Position in relation to perpetual USDS-M Contract held by the Client, Binance Australia Derivatives will, from time to time, credit or debit an amount (in the form of Prescribed Digital Assets) (the Funding Fee) to the Client Account to reflect the difference between the price of the perpetual contract markets and the then current spot price with respect to the Underlying Instruments to which the relevant Contract relates. The Client may therefore, depending on such difference, either be required to provide a Funding Fee to, or entitled to receive a Funding Fee from, Binance Australia Derivatives.
8.5.2 The Client will only be required to pay, or entitled to receive, Funding Fees in respect of Open Positions held by the Client in perpetual USDS-M Futures Contracts as at certain times of each day, currently every 8 hours at 00:00 UTC; 08:00 UTC and 16:00 UTC (Funding Times). If the Client does not have an Open Position at the applicable Funding Time, or closes any Open Positions prior to the relevant Funding Time, the Client will not be liable for, or otherwise entitled to receive, any Funding Fees with respect to such Funding Time. Any changes to Funding Times will be made available on the Trading Platform.
8.6 Margin Requirements
8.6.1 Before executing a Contract, Binance Australia Derivatives will require the Client to allocate a certain amount of Prescribed Digital Assets to its Account as a pre-condition to entering into such Contract (such amount, the Initial Margin). If the Client does not allocate the prescribed Initial Margin to its Account, then the Client will not be permitted to enter into a Contract.
8.6.2 In addition to the Initial Margin, the Client will be required to allocate a certain amount of Prescribed Digital Assets to its Account in order to maintain an Open Position in relation to a Contract (such amount, the Maintenance Margin).
8.6.3 If the value of an Open Position moves against the Client, the Client may be required to deposit additional Prescribed Digital Assets to its Account in order to ensure that the Margin Balance of the Account does not fall below the Maintenance Margin requirements (a Margin Call). Binance Australia Derivatives is not required to make a Margin Call. However, if a Margin Call is made, it will be made via the Trading Platform, by email or other electronic means.
8.6.4 The Initial Margin and Maintenance Margin requirements are detailed on the Trading Platform. Initial Margin and Maintenance Margin requirements are subject to change from time to time at our discretion. A higher Initial Margin may be payable in certain circumstances and Maintenance Margin may increase in the event of adverse market movements.
8.7 Forced Liquidation
8.7.1 The Client is responsible for monitoring their Account and for ensuring that they meet Initial Margin, Maintenance Margin and Margin Call requirements at all times, especially during volatile periods.
8.7.2 Binance Australia Derivatives reserves its full rights to automatically close out and liquidate the Client’s Open Positions if at any time the Margin Balance of the Client’s Account falls below the required Maintenance Margin (a Forced Liquidation).
8.7.3 If a Client is subject to a Forced Liquidation pursuant to clause 8.7.2 above, a liquidation fee will be charged on the liquidated amount only (and not on the notional value of the position). Current liquidation fees are as detailed on the following webpage (or such other website as notified from time to time): Trading Rules of USDⓈ-Margined Contracts | Binance Futures.
8.7.4 Binance Australia Derivatives shall have the right, at its sole discretion, to determine the mark to market value of any Open Position from time to time. To avoid spikes and unnecessary liquidations during periods of high volatility, Binance Australia Derivatives uses “Last Price” and “Mark Price” to determine the mark to market value. “Last Price” refers to the latest transaction price that the Contract in question was traded at and is used for calculating the Client’s realised profits and losses. “Mark Price” is calculated using a combination of funding data and a basket of pricing data from multiple spot exchanges and is used to determine Unrealised P/L and the price at which an Open Position on a Contract is liquidated.
8.7.5 Binance Australia Derivatives reserves the right to implement appropriate risk control measures in the event of extreme market volatility, so as to mitigate losses to Binance Australia Derivatives and/or its clients. Such measures may include (but shall not be limited to), implementing a “reduce only” restriction with respect to highly leveraged Open Positions, so that Open Positions on existing transactions may be reduced only and any increase to Open Positions or the entry into new Open Positions/Contracts will be restricted; (b) prohibiting transfers, trading, and other operations with respect to the Client’s Account; and (c) taking steps to close-out highly leveraged Open Positions.
8.7.6 In addition to other remedies available to Binance Australia Derivatives, if the Client fails to provide Prescribed Digital Assets when due under this Agreement, Binance Australia Derivatives has the right to terminate (by either buying or selling) any or all of the Client’s Open Positions.
8.7.7 The Client will not be liable for any negative balances which cannot be covered by the closing out of all of the Client’s Contracts in connection with their Account. This is because Binance Australia Derivatives’ recourse is limited to the Property allocated to the Client’s Account, including Property arising from Forced Liquidations. This means that where the Client’s Account balance falls below zero, the Client’s Account balance will be restored to zero.
8.8 Set Off
8.8.1 In addition to other remedies available to Binance Australia Derivatives, if the Client fails to provide Prescribed Digital Assets when due under this Agreement, Binance Australia Derivatives may set-off such amount of Prescribed Digital Assets against any Prescribed Digital Assets owed by Binance Australia Derivatives to the Client.
8.8.2 Binance Australia Derivatives is entitled to set-off against any Prescribed Digital Assets due to it by the Client, any Prescribed Digital Assets received by Binance Australia Derivatives from or on behalf of the Client including but not limited to Prescribed Digital Assets received as Initial Margin, Maintenance Margin and/or pursuant to Margin Calls. Binance Australia Derivatives may determine the application of any Prescribed Digital Assets which are to be set-off at its own discretion.
8.8.3 A Client must not set-off against any Prescribed Digital Assets the client owes to Binance Australia Derivatives, any Prescribed Digital Assets Binance Australia Derivatives owes to the Client.
8.9.1 Where Binance Australia Derivatives accepts a Client’s Order for execution, Binance Australia Derivatives will use all reasonable efforts to process the Order in a timely fashion, and shall not, in the absence of willful misconduct, be liable for delays, damages, failures or errors in the completion of the Order.
8.10 Quoting Error
8.10.1 Binance Australia Derivatives will take reasonable steps to prevent quoting errors from occurring. Should a quoting error occur due to a typographical error or obvious mistake in a quote, Indication or Price (the Quoting Error), Binance Australia Derivatives is not liable for any damages, claims, losses, liabilities or costs arising from the Quoting Error. Binance Australia Derivatives reserves the right to make the necessary adjustments to the Contract to correct the Quoting Error. Any dispute arising from a Quoting Error will be resolved on the basis of the fair market value, as determined by Binance Australia Derivatives acting reasonably, of the relevant Underlying Instrument at the time such Quoting Error occurred.
8.11 Abusive Strategies
8.11.1 Binance Australia Derivatives reserves the right to terminate, close out, cancel or amend the terms of any Contract and/or transaction in any way, where it reasonably believes the Client has engaged in a strategy to manipulate its Prices, including capitalising on opportunities where the executable Price of a Contract and/or transaction does not accurately reflect market rates, or where the Client uses any software, algorithm, or trading strategy to take unfair advantage of the way in which Binance Australia Derivatives offers Prices.
9 Trading Platform
9.1 If the Client uses Binance Australia Derivatives’ Trading Platform the Client confirms and accepts the following:
- For the duration of this Agreement and for as long as the Client complies with the terms of this Agreement as amended from time to time, Binance Australia Derivatives grants the Client a personal, non-exclusive, non-transferable, non-sublicensable, limited right to enter and use the Trading Platform;
- The Client may be able to enter into Contracts at the rates and/or Prices quoted on the Trading Platform (the Indication). An Indication is indicative only, is not binding and may be withdrawn or changed by Binance Australia Derivatives without notice. The Client agrees to accept the Prices offered by Binance Australia Derivatives when the Contract is executed;
- All Contracts and transactions must be completed using the logins and passwords allocated to the Client by Binance Australia Derivatives and valid entry of such a login and password will constitute an authorisation by the Client to complete the Contract specified irrespective of whether the login and password are entered by an Authorised User;
- The Client must ensure that the logins and passwords are kept secure and confidential and that no unauthorised person is able to use the logins and passwords. The Client must also ensure that each Authorised User to whom a login and password is provided, will keep them secure and confidential and quits the Internet browser after using the Trading Platform. The Client will advise Binance Australia Derivatives immediately if the Client has any reason to believe that the login and passwords allocated to the Client or an Authorised Users have not been kept secure and confidential or that they have been used by an unauthorised person. The Client will be liable for any and all losses, liabilities, action, proceedings, claims, damages and/or costs resulting from or arising out of any act or omission by any person accessing the Client’s Account through the Client’s logins and passwords, whether or not the Client authorised such access;
- Binance Australia Derivatives may at any time acting reasonably and without Notice to the Client suspend, withdraw or deny access to the Trading Platform for any reason including but not limited to security, quality of service, failure by the Client to meet Initial Margin, Maintenance Margin and Margin Call requirements or breach by the Client of any provision of this Agreement. If and while such access is suspended:(i) the Client may be able to close any Open Positions but will not be entitled to enter into new Contracts; and(ii) Binance Australia Derivatives may, in its sole discretion (with or without Notice) close out all the Client’s Open Positions at prices it considers fair and reasonable at that time, and to the extent permitted by law, the Client agrees not to make any claim against Binance Australia Derivatives in this regard;
- Binance Australia Derivatives may change the minimum specification required to access the Trading Platform and also may make operational changes to and alter the Services currently available at any time. Binance Australia Derivatives will notify the Client of such changes by either placing a message on the Binance Australia Derivatives Website or on the log on page of the Trading Platform;
- The Client is responsible for obtaining, maintaining and ensuring compatibility of its electronic software, devices and equipment with the Trading Platform. Binance Australia Derivatives will not be responsible for any loss of or damage to the Client’s data, software, computer, electronic devices, telecommunications or other equipment caused by use of the Trading Platform, unless such loss or damage is directly and solely caused by Binance Australia Derivatives’ negligence or deliberate default;
- The Client is responsible for ensuring that its electronic devices and equipment are free from viruses and other malware, and Binance Australia Derivatives will not be responsible for any losses incurred by the Client’s failure to do this. Binance Australia Derivatives shall use reasonable endeavours to keep the Trading Platform free from viruses and corrupt files but cannot guarantee that the Trading Platform will be free from infection by viruses or anything else with contaminating or destructive properties. Binance Australia Derivatives is not able to guarantee that access to the Trading Platform will be uninterrupted, continuous or error free;
- The Client must not:(i) misuse the Trading Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;(ii) attempt to gain unauthorised access to the Trading Platform or any server, computer or database connected the Trading Platform; or(iii) attack the Trading Platform via a denial-of-service attack or a distributed denial- of-service attack.By breaching this provision, the Client may also commit a criminal offence. Binance Australia Derivatives may report any such breach to the relevant law enforcement authorities and will co-operate with those authorities by disclosing the Client’s identity to them. In the event of such a breach, the Client’s right to use the Trading Platform will cease immediately and without Notice. Binance Australia Derivatives will not be liable for any loss or damage caused by a distributed denial-of-service attack, virus or other technologically harmful material that may infect the Client’s electronic devices and equipment;
- The Client will be liable for all Contracts made when using the Trading Platform including instances of any misuse, fraud or abuse by the Client or Authorised Users or where the Client or an Authorised User has disclosed login or password details to a third party;
- The information on the Trading Platform and the use of the Trading Platform is not intended for any person who is not in Australia and is not made available to any person in any jurisdiction where its distribution or use would be contrary to any law or regulation. Nothing on the Trading Platform should be considered an offer or solicitation to buy or sell any service or product to any person in any jurisdiction where such offer or solicitation would be unlawful;
- The Client acknowledges that its use of the Trading Platform is at its own discretion and is in compliance with all applicable Laws;
- Binance Australia Derivatives makes no representations, warranties or guarantees about the Trading Platform. To the maximum extent permitted by law, in no event does Binance Australia Derivatives or any of its directors, employees, agents or related bodies corporate accept liability for any direct, indirect, consequential or incidental loss, liability, damage, inconvenience, claim or additional expense which may be suffered as a result of the use by a Client, any Authorised User or any other party of the Trading Platform, including but not limited to:(i) the provision by or on behalf of the Client or incorrect information or information that is not up to date;(ii) any inability to use the Trading Platform due to legal, geographic or software restrictions;(iii) price fluctuations of digital assets; or(iv) the unavailability of the Trading Platform.If the Client’s and/or an Authorised User’s use of the Trading Platform violates any part of this Agreement or is used fraudulently, Binance Australia Derivatives reserves the right to revoke access to the Trading Platform at its discretion. Client agrees to be held liable for any losses that Binance Australia Derivatives may suffer and agrees to indemnify Binance Australia Derivatives for any reasonable costs, expenses and losses that are incurred as a result of any fraudulent or illegal actions performed by or on behalf of the Client, or where the Client or an Authorised User intentionally or negligently fails to comply with this Agreement;
- Where a failure to provide or operate the Trading Platform in accordance with this Agreement arises, including where there is negligence on the part of Binance Australia Derivatives in relation to the Trading Platform, to the maximum extent permitted by law, Binance Australia Derivatives limits its liability to repeating the provision of the Services on the Trading Platform or the cost of repeating the provision of the Services on the Trading Platform;
- To the full extent permitted by law, Binance Australia Derivatives is not liable for any damages, losses, costs, loss of profit, loss of revenue, loss of business, loss of opportunity, loss of data, loss of digital assets or any other direct, indirect or consequential loss to any person including any Authorised User arising out of any use of the Trading Platform, Binance Australia Derivatives acting or failing to act on any matter, any Contract, any failure of the Trading Platform, any error or failure or lack of any security measures by Binance Australia Derivatives or any third party including in relation to storage or transfer of digital assets by or on behalf of Binance Australia Derivatives or for any other reason, except to the extent the loss is directly caused by the fraud or willful default of Binance Australia Derivatives. Binance Australia Derivatives shall not be liable for any loss as a result of cancelling in whole or in part any Contract or Order;
- Binance Australia Derivatives will not be liable for any malfunction, breakdown, delay or interruption to the Internet connection, or if for any reason the Trading Platform is unavailable at any time or for any period. Where the Trading Platform contains links to other sites and resources provided by third parties, these links are provided for information only. Binance Australia Derivatives has no control over the contents of those sites or resources, and accepts no responsibility for them or for any loss or damage that may arise from the Client’s use of them; and
- To the full extent permitted by law, the aggregate liability of Binance Australia Derivatives in respect of claims based on events arising out of or in connection with the Client’s or an Authorised User’s use of the Trading Platform, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the aggregate of all Trading Fees paid by the Client in the twelve month period immediately preceding the event giving rise to the relevant claim, as determined by Binance Australia Derivatives.
10. Circumstances Beyond Binance Australia Derivatives’ Control
10.1 If Binance Australia Derivatives is unable to perform its obligations under this Agreement or a Contract because of factors beyond its control or because of a Force Majeure Event, Binance Australia Derivatives will notify the Client as soon as is reasonably practicable and will use reasonable endeavours to secure the return of any Prescribed Digital Assets provided by the Client as Property in respect of which Binance Australia Derivatives has been unable to discharge its obligations under this Agreement.
10.2 Market Disturbance
10.2.1 Binance Australia Derivatives may give a notice (a Disturbance Notice) to the Client at any time if it forms the view that market conditions in the relevant market for the relevant Prescribed Digital Asset, or other underlying stablecoin or other cryptoasset concerned are seriously disturbed.
10.2.2 This includes, without limitation, circumstances where, in Binance Australia Derivatives’ opinion, deposits in the Prescribed Digital Asset are not available in the ordinary course of business to Binance Australia Derivatives in the relevant market or because of national or international financial, political or economic circumstances or because of exchange controls.
10.2.3 When a Disturbance Notice is given, Binance Australia Derivatives’ obligations will be suspended while it and the Client negotiate alternative arrangements. If both parties reach agreement before the settlement date of the relevant Contract, those alternative arrangements will apply. If they do not reach agreement within that period, each will be released from its obligations under the relevant Contract.
11. Client Property
11.1 The Client agrees that Binance Australia Derivatives will not in any circumstances accept or hold client monies or any client property of any kind, under Part 7.8 of the Corporations Act 2001, on behalf of its clients. Binance Australia Derivatives will only ever accept Prescribed Digital Assets from a Client in connection with its offer of CFDs to that Client (Property). The Client acknowledges and agrees that the Account and the custody of the Client’s Property are maintained in accordance with the terms applicable to the Client’s account opened with InvestbyBit Pty Limited (Binance Australia) for the purposes of spot trading in digital assets (Spot Trading Account), which terms can be found here. Binance Australia does not hold the Property on behalf of Binance Australia Derivatives.
11.2 The Client authorises and directs Binance Australia Derivatives to withdraw, deduct, apply or otherwise utilise any of the Client’s Property, held in the Client’s Spot Trading Account and which is notionally allocated to the Derivatives Trading Account:
(a) in connection with Binance Australia Derivatives’ operation of the Derivatives Trading Account, and in order to enforce other rights that Binance Australia Derivatives has under this Agreement or in the Information Statement; and
(b) for any other reason allowed by Law.
11.3 The Client agrees that when Binance Australia Derivatives uses the Property for a lawful purpose as set out in this clause 11, the Property does not belong to the Client and does not constitute a loan or constructive trust in favour of the Client and such Property will no longer be the Client’s Property.
11.4 If the Client has an Open Position or closes out any Open Position, and Binance Australia Derivatives requires a deduction from the Client’s Spot Trading Account, for any reason as set out in this Agreement, the Client accepts that the deduction may occur immediately upon the deduction arising, and the Property will become Binance Australia Derivatives’ property. Conversely, if the Client has an Open Position, and it requires a credit for any reason as set out in this Agreement , that credit will be applied promptly to the Client’s Property after the close out of the Client’s Open Position.
12.1 Unless otherwise specified herein, any notice or other written information required or permitted to be given under this Agreement or for the purposes of this Agreement (Notice) shall be in writing and shall:
- If to the Client, be sent by prepaid registered mail or delivered by hand to the address of the Client set out in this Agreement, or such other address the Client designates in writing, or by Binance Australia Derivatives posting a Notice to the Binance Australia Derivatives Website; and(i) if posted on the Binance Australia Derivatives Website, Notice is deemed to have been given 3 Days after the Notice was posted on the Binance Australia Derivatives Website; or (ii)(ii) if the Notice was sent to the address of the Client, the Notice is deemed to have been given on the Day after the Notice was sent, unless delivered by hand in which case the Notice is deemed to have been given on delivery.
- If to Binance Australia Derivatives, be sent by prepaid registered mail or delivered by hand to the address of Binance Australia Derivatives set out in this Agreement, or such other address as Binance Australia Derivatives designates in writing from time to time, and such Notice is deemed to have been given on the Day after the Notice was sent, unless delivered by hand in which case the Notice is deemed to have been given on delivery.
12.2 Any Notice given or made under this Agreement may also be sent by email if:
(a) the Notice is sent to the email address last notified by the intended recipient to the sender; and
(b) the sender keeps an electronic or printed copy of the Notice sent.
12.3 A Notice sent by email will be deemed to have been given on the first to occur of:
(a) receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated above;
(b) the time that the Notice enters an information system which is under the control of the recipient; or
(c) the time that the Notice is first opened or read by an employee or officer of the recipient.
12.4 It is the Client’s responsibility to notify Binance Australia Derivatives of any changes to the Client’s contact details.
13. Termination and Account closure
13.1 This Agreement may be terminated immediately by the Client or Binance Australia Derivatives by Notice to the other in writing. However, termination by either party shall not affect any Contract or other transaction previously entered into and shall not relieve either party of any outstanding obligations arising out of this Agreement, nor shall it relieve the Client of any obligations arising out of any Contract entered into prior to such termination that remains outstanding as at the time of termination.
13.2 In the event that Binance Australia Derivatives is made aware of or has reason to believe any of the following:
(a) that the Client has provided false or misleading information to Binance Australia Derivatives; or
(b) that the Client has participated or is participating or has assisted or is assisting in money laundering or terrorist financing; or
(c) that the Client is being officially investigated by law enforcement and/or regulatory agencies; or
(d) a Default Event or Insolvency Event has occurred,
then Binance Australia Derivatives may, at its sole discretion, terminate this Agreement immediately without Notice to the Client, and Binance Australia Derivatives shall be relieved of any obligations set out in this Agreement or arising out of the transactions contemplated by this Agreement, including any obligations arising out of any Contract already entered into with Binance Australia Derivatives.
13.3 On termination of this Agreement, the Client shall no longer be entitled to access or use, and shall immediately cease their access and/or use of, the Trading Platform and the Services. The Client will also be required to pay any outstanding amounts owed to Binance Australia Derivatives, including with respect to Contracts, any applicable Trading Fees, Funding Fees and other amounts, and the Client authorises Binance Australia Derivatives to deduct any such outstanding amounts from the Client’s Account. The Client further authorises Binance Australia Derivatives to cancel or suspend any pending Contracts at the time of termination of this Agreement.
13.4 After the satisfaction of any amounts due to Binance Australia Derivatives, if any amounts remain to the credit of the Client’s Account following termination of this Agreement, such amounts will be credited to the balance of the Spot Trading Account the Client’s holds with Binance Australia for the purposes of spot trading activity in Digital Assets. Withdrawals of amounts credited to the Spot Trading Account are subject to the terms applicable to such account.
13.5 In certain cases, the Client will be unable to close their Account, including:
(a) where to do so would, in Binance Australia Derivatives reasonable view, be designed to evade an investigation by relevant authorities;
(b) where the Client has a pending Contract or an open dispute;
(c) if the Account has any outstanding amounts owed to Binance Australia Derivatives; or
(d) if the Account is subject to a freeze, hold, limitation or reserve.
14. Limitation of Liability
14.1 Binance Australia Derivatives will use all reasonable endeavours to execute Contracts in accordance with the timing specified in the Client’s Instructions and to provide its Services in a timely fashion. However, Binance Australia Derivatives is not obliged to accept any Order for execution or to enter into any Contract and may do so in its sole discretion. To the extent permitted by Law, Binance Australia Derivatives shall not be held liable under any circumstances for any direct, indirect or consequential loss (including any loss of profits) incurred as a result of any delay in execution of Contracts or delay in the provision of the Services.
14.2 Nothing in this Agreement is intended to limit or exclude any liability Binance Australia Derivatives may owe the Client under any statutory rights the Client may have.
15. Dispute Resolution
15.1 Except to the extent that this clause is inconsistent with the requirements of any legislative or regulatory regime, the dispute resolution process set out in this clause shall apply. The parties must use all their reasonable endeavours to resolve any dispute arising in connection with this Agreement or any Contracts and transactions thereunder.
15.2 If the Client has a complaint in relation to this Agreement or any Contract or other transaction under it, the Client should raise the complaint with Binance Australia Derivatives complaints manager who may be contacted using the contact details below:
Binance Australia Derivatives
Address: Level 17, 31 Queen Street, Melbourne, Victoria 3000 Australia
15.3 Binance Australia Derivatives complaints manager will investigate the complaint and provide a response as soon as practicable having investigated the concerns raised in the complaint.
16.1 No waiver
The failure, delay, relaxation or indulgence on the part of Binance Australia Derivatives in exercising any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right or remedy, nor shall the exercise or any single or partial exercise of any power, right or remedy preclude any other or further exercise of such power, right or remedy or the exercise of any other power, right or remedy under this Agreement. Any waiver by Binance Australia Derivatives of a breach of this Agreement by the Client shall be in writing signed by Binance Australia Derivatives, and shall be effective only to the extent specifically set out in that waiver.
If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable and shall otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.