Version: February 2024
These Binance OTC Terms (this “Agreement”) shall apply to all OTC Transactions entered into between Binance and you.
All terms and references used in this Agreement that are not defined herein shall have the meaning given to them in the Binance Terms of Use, Futures Services Agreement and Options Services Agreement, as updated from time to time (the “Terms of Use”, “Futures Services Agreement” and “Options Services Agreement”). Where a term is defined both in the Terms of Use, Futures Services Agreement, Options Services Agreement and in this Agreement, for the purposes of this Agreement only, the definition in this Agreement shall prevail.
This Agreement shall be supplemental to and is to be read together with the Terms of Use, Futures Services Agreement and Options Services Agreement. References in the Terms of Use to the Binance Services and/or Transactions shall include references to OTC Transactions and the related services contemplated hereunder. In the event of any conflict or inconsistency between this Agreement, the Terms of Use, Futures Services Agreement and Options Services Agreement, this Agreement shall prevail with respect to the services contemplated hereunder unless expressly stated otherwise.
This version of this Agreement shall replace and supersede any previous agreements between us with respect to OTC Transactions and any previous versions of this Agreement that may have been accepted through, or otherwise made available on, the Platform. By entering into OTC Transactions, you confirm your acceptance of this Agreement and the Terms of Use, Futures Services Agreement and Options Services Agreement.
1. Definitions and Interpretation
“Accepted Order” has the meaning given to it in clause 4.2.
“Agreed Communication Channel” means such methods of communication as approved by Binance and agreed between you and Binance from time to time, which may include (without limitation) telephone, email, Whatsapp, Telegram, online chat functionality and, if available, the Platform. Binance may withdraw the use of an Agreed Communication Channel at any time for any reason.
“Algo Execution Service” has the meaning given to it in clause 6.7.
“Algo Order” has the meaning given to it in clause 6.1.
“Expiry Time” has the meaning given to it in clause 4.3.
“Futures” means COIN-M Futures, USDS-M Futures (as each term is defined in the FSA) or any other futures contracts that Binance may allow at its sole discretion to be traded on through an Agreed Communication Channel.
“FSA” has the meaning given to it in clause 5.3.
“Manifest Error” means any error, omission or misquote (whether an error of Binance or any third party) which is manifest or palpable, including a misquote by any representative of Binance taking into account the current market and currently advertised quotes, or any error or lack of clarity of any information, source, commentator, official, official result or pronunciation. The fact that you may have entered into, or refrained from entering into, a corresponding financial commitment, contract or trade in reliance on an OTC Transaction entered into with Binance (or that you have suffered or may suffer any loss whether direct, indirect, consequential or otherwise) is deemed irrelevant as a factor and shall not be taken into account in determining whether a situation amounts to a Manifest Error.
“Order” means an instruction issued by you to Binance through an Agreed Communication Channel in such form as specified by Binance from time to time, which shall constitute a request to enter into an OTC Transaction on the basis of the parameters as set out in the Order, and shall include (without limitation) an Algo Order.
“OTC Services” means the provision of Prices by Binance to you, your submission of Trade Instructions and/or Orders, and the entry into OTC Transactions, and any related services provided by Binance or any Binance Affiliate or third party in connection therewith.
“OTC Transaction” means any bilateral over the counter transaction in Digital Assets entered into between Binance and you pursuant to a Trade Instruction or an Order submitted by you (or on your behalf) to Binance through an Agreed Communication Channel.
“Platform” means means the digital platform made accessible via any website, page, feature, or content owned or operated by Binance, any mobile application developed or provided by Binance or any application programme interface (“API”) made available to you or third-party applications relying on such an API or by such other means as Binance may prescribe from time to time for the use of Binance Services.
“Price” has the meaning given to it in clause 2.1.
“Price Request” means a request made by you through an Agreed Communication Channel for a Price.
“Products” means such products as Binance enables you to trade in from time to time for the purposes of the OTC services, which may include (without limitation), spot transactions in certain Digital Assets as permitted from time to time by Binance, Futures, Options and such other products as permitted in Binance’s sole discretion.
“Related Persons” has the meaning given to it in clause 8.2(a).
“Trade Confirmation” has the meaning given to it in clause 3.7.
“Trade Instruction” means a trade request or instruction issued by you to Binance through an Agreed Communication Channel in such form as specified by Binance from time to time, which shall constitute an offer made by you to enter into an OTC Transaction on the basis of a Price provided by Binance
“Trading Limits” has the meaning given to it in clause 5.8.
“Trading Rules” means any trading rules, contract specifications and other terms applicable to the Products as made available on the Platform from time to time, which, in respect of OTC Transactions in Futures, shall include the Futures Trading Rules (as defined in the FSA) and Trading Rules (as defined in the Options Services Agreement).
2. Prices
2.1 Binance may provide indicative prices in OTC Transactions in such Products as agreed from time to time (“Prices”). Prices will be provided in response to a Price Request through an Agreed Communication Channel and will consist of either a bid price and an offer price or both a bid price and an offer price, as determined by Binance in its sole discretion. You acknowledge and agree that Binance shall determine Prices in its sole discretion and may discontinue providing Prices in some or all Products or some or all Digital Assets and/or cease the use of an Agreed Communication Channel at any time for any reason. Binance provides no representations as to the accuracy or fitness for purpose of any Agreed Communication Channel, nor does Binance accept any responsibility for any Loss incurred by you arising out of or in connection with your use of an Agreed Communication Channel.
2.2 Binance shall have sole discretion as to whether it wishes to respond to a Price Request. The provision of a Price by Binance, whether following a Price Request or otherwise, does not constitute an offer to you to enter into an OTC Transaction at that Price, nor does it obligate Binance to accept any subsequent Trade Instruction submitted by you.
2.3 Prices are proprietary in nature and so the Prices made available by Binance may differ to other prices provided in the relevant Digital Assets by other providers. Prices are subject to constant change and whilst Binance seeks to provide Prices that are up to date, circumstances may arise where Prices provided are invalid by the time that a Trade Instruction is received by Binance in relation to that Price. Binance shall determine how long Prices remain valid in its sole discretion. A Trade Instruction submitted in relation to a Price that is no longer valid will be rejected.
2.4 You acknowledge that the Prices are provided solely for your use of the OTC Services and you may not communicate or otherwise use the Prices for any other reason without the prior consent of Binance unless otherwise provided herein.
2.5 You acknowledge that any Price provided by Binance may be inclusive of bid-ask spread and/or a mark-up determined by Binance to be appropriate for you and the type of OTC Transactions. Binance is not under any obligation to disclose the specific amount of any bid-ask spread and/or mark-up to you (unless otherwise agreed in writing or required by law).
2.6 You acknowledge and agree that to the extent you are accessing and using the Binance Convert Services, the Convert Terms of Use shall apply to govern the use of the Binance Convert Services, including the use of any Binance API Connection (as each term is defined therein).
3. Trade Instructions
3.1 To enter into an OTC Transaction on the basis of a Price provided by Binance, you may do so by entering a Trade Instruction. Each Trade Instruction must include such details as requested from Binance from time to time, depending on the type of OTC Transaction you are looking to enter into, including (without limitation), the relevant trading pairs, the Price (which must be latest Price received from Binance and shall not have expired or been withdrawn by Binance, provided that Binance may in its discretion execute a Trade Instruction which references a Price that has expired) and the applicable notional amount (which shall be no less than any minimum amount and no more than any maximum amount that may be specified by Binance from time to time).
3.2 Binance shall have no obligation to accept any Trade Instruction and may do so in its sole discretion. Acceptance by Binance of any Trade Instruction which does not comply with all of the requirements set out in this clause 3 shall not obligate Binance to accept any subsequent non-confirming Trade Instruction.
3.3 Where any Trade Instruction is ambiguous or inconsistent with any other Trade Instruction, Binance shall be entitled to rely and act upon any Trade Instruction in accordance with any reasonable interpretation thereof which Binance believes in good faith to be the correct interpretation.
3.4 A Trade Instruction submitted by or on your behalf through an Agreed Communication Channel constitutes an offer to enter into a OTC Transaction between you and Binance on the terms as set out in such Trade Instruction, which may be accepted or rejected by Binance in its sole discretion. Binance may reject a Trade Instruction for any reason and nothing in this Agreement or the Terms of Use (or otherwise) obliges Binance to enter into any OTC Transaction with you in response to a Trade Instruction. Binance may refuse to enter into any OTC Transaction, accept or otherwise act on any Trade Instruction without giving any reason or any notice to you. Binance shall be entitled (but not obliged) to verify and be satisfied with respect to the identity of the person purporting to give any Trade Instruction or the source and origin of any Trade Instruction and Binance may rely or act upon any Trade Instruction unless and until Binance is satisfied as to the matters on which Binance sought verification. A Trade Instruction which is not received by Binance for any reason, including the failure or delay of any Agreed Communication Channel, shall be deemed rejected. Once submitted to Binance, a Trade Instruction cannot be withdrawn, cancelled or amended by you once executed unless otherwise permitted by Binance in its sole discretion.
3.5 Execution of a Trade Instruction by Binance, which shall occur upon express confirmation by Binance to you through an Agreed Communication Channel that the related OTC Transaction is “done” or has otherwise been “executed”, will constitute a binding agreement to an OTC Transaction between Binance and you on the terms of the relevant Trade Instruction. You acknowledge and agree that, subject to the rights of Binance as otherwise set out in this Agreement, an OTC Transaction cannot be cancelled, amended or unwound once entered into without the consent of both parties regardless of whether the corresponding Trade Instruction was provided as a result of any inaccuracy or error by you, including in relation to the terms of the OTC Transaction.
3.6 Binance shall notify you of the execution of a Trade Instruction and entry into of an OTC Transaction through an Agreed Communication Channel but any failure or delay in providing such notice shall not affect the effectiveness of such OTC Transaction. If you do not receive a message through an Agreed Communication Channel indicating that a Trade Instruction has been accepted and that an OTC Transaction has been entered into within promptly after submitting the Trade Instruction to Binance, you shall promptly contact Binance through an Agreed Communication Channel to confirm the status of the relevant OTC Transaction.
3.7 Upon agreement, Binance may provide you with a written confirmation, setting out the terms of the OTC Transaction (a “Trade Confirmation”). You shall be responsible for comparing any Trade Confirmation or other record of any OTC Transaction entered into between you and Binance pursuant to the OTC Services to your own records of OTC Transactions entered into with Binance and shall notify Binance of any discrepancies.
4. Orders
4.1 If permitted by Binance, you may submit Orders to Binance through an Agreed Communication Channel by specifying the terms of such Order in the manner as directed by Binance from time to time. In addition, you may request to amend or cancel existing Orders by contacting Binance through an Agreed Communication channel provided such Orders have not been executed. Binance may in its sole discretion accept or reject any request to amend or cancel an Order. To the extent that Binance accepts your request to amend an existing Order, the amended Order will be treated as a new Order placed by you. Binance will execute Orders in accordance with this Agreement and any other terms provided on the Platform.
4.2 Binance may in its sole discretion accept or reject any Order and any such acceptance or rejection shall be effective upon determination by Binance. Acceptance of an Order does not amount to a binding agreement between Binance and you and does not oblige Binance to enter into any OTC Transaction with you. An Order which has been accepted by Binance (an “Accepted Order”) may be subsequently returned to you in Binance’s sole discretion and Binance shall not be under any obligation to execute any OTC Transaction with you in response to an Order regardless of whether the Order is an Accepted Order.
4.3 An Accepted Order may be executed by Binance in whole or in part at any time after acceptance but no later than the latest time for execution (if any) specified by you (the “Expiry Time”). Any Order (or part of any Order) not executed prior to the Expiry Time shall expire at such Expiry Time. Execution of an Order (or part of an Order) by Binance (which shall be effected by execution of a transaction in the Digital Asset markets (which may be through the Platform, with a third party liquidity provider or with a Binance Affiliate) in respect of such Order) shall constitute a binding agreement to an OTC Transaction between you and Binance on the terms of such Order. Binance shall notify you of such execution through an Agreed Communication Channel but any failure or delay in providing such notice shall not affect the effectiveness of such OTC Transaction.
4.4 Binance provides no guarantee that any Order can be filled in its entirety as this depends on factors outside of Binance’s control. Binance may add or remove types of Orders at its sole discretion.
5. Transactions
5.1 Unless otherwise agreed, Binance will enter OTC Transactions as principal. You agree that you will enter into OTC Transactions as principal and not as agent on behalf of any other party, unless otherwise expressly agreed by Binance in writing. Subject to the foregoing, Binance’s duties and obligations under this Agreement and any OTC Transaction shall be solely to you and, unless expressly agreed otherwise, Binance accepts no duties, obligations or responsibilities to any other party, regardless of whether Binance is made aware of any such third-parties.
5.2 You acknowledge and agree that the OTC Services are provided on a non-advised basis, meaning that Binance will not provide you with any advice as to the merits of any OTC Transactions. You acknowledge and agree that you are solely responsible for any decisions taken in respect of any Trade Instructions, Orders or OTC Transactions made. Binance will not provide you with any investment, legal, tax or other form of advice, nor can you request any such advice from Binance.
5.3 You acknowledge and agree that the terms in this Agreement shall be further supplemented by Trading Rules, where applicable. In the event of any conflict or inconsistency between the terms in this Agreement and the Trading Rules, the Trading Rules shall prevail with respect to the services contemplated hereunder unless expressly stated otherwise. You further acknowledge and agree that to the extent that you are entering into an OTC Transaction in respect of Futures, you shall be deemed to have agreed and accepted, and undertake to comply with, the terms of the Futures Service Agreement (the “FSA”), which terms shall apply to all OTC Transactions in Futures and shall be deemed to supplement and form part of this Agreement. In the event of any conflict or inconsistency between the terms of the FSA and the terms of this Agreement, the terms of the FSA shall prevail with respect to OTC Transactions in Futures only. You further acknowledge and agree that to the extent that you are entering into an OTC Transaction in respect of Options, you shall be deemed to have agreed and accepted, and undertake to comply with, the terms of the Options Service Agreement, which terms shall apply to all OTC Transactions in Options and and shall be deemed to supplement and form part of this Agreement. In the event of any conflict or inconsistency between the terms of the OSA and the terms of this Agreement, the terms of the Options Services Agreement shall prevail with respect to OTC Transactions in Options only.
5.4 You acknowledge and agree that you bear sole responsibility for any reporting of OTC Transactions as may be required under applicable law and regulation and that Binance will not provide any infrastructure, support or assistance with respect to the reporting of OTC Transactions.
5.5 Binance offers no representation as to or guarantee of liquidity in any Digital Asset and you acknowledge and agree that Binance has no ability to control liquidity and that it takes no responsibility for any Loss experienced by you which is caused by or contributed to by illiquidity in any Digital Asset. You acknowledge and agree that you shall bear the sole responsibility and risk in relation to OTC Transactions entered into by you pursuant to this Agreement.
5.6 Binance may rectify any error in your account history at any time, and reserve the right to void or reverse any transaction:
involving or deriving from a manifest error (that is, any error, omission or misquote (whether an error of Binance or any third party) which is manifest or palpable, including a misquote by any representative of Binance taking into account the current market and currently advertised quotes, or any error of any information, source, official, official result or pronunciation); or
to reflect what we reasonably consider to be the correct or fair details of the transaction.
5.7 You acknowledge and agree that, if:
Binance determines that one or more prices at which one or more OTC Transactions are executed differs materially from the prevailing market price for the relevant OTC Transaction(s) at such time, or are otherwise erroneous in nature (including without limitation inadvertently presenting a bid price as an offer price or vice versa), due to the transmission of one or more incorrect prices by Binance and/or in the event of extreme market volatility; or
Binance has reason to believe that you have executed an OTC Transaction with improper intent or determines that there may be suspected market manipulation, including (without limitation), capitalising on opportunities where the executable price of an OTC Transaction does not reflect prevailing market rates, or taking unfair advantage of the way in which Binance offers prices,
then, in each case, Binance is authorised by you (without any payment or penalty due by either Binance or you and provided that such action is in compliance with Applicable Law) to either:
cancel/void such OTC Transaction(s) and treat such OTC Transaction(s) as if they had never been entered into; or
amend the price(s) of such OTC Transaction(s) (upon notice from Binance to you of the amended price(s)) to reflect the prevailing market price(s) as at the relevant time, as determined by Binance by reference to an available source for fair market pricing.
5.8 If Binance cancels an OTC Transaction pursuant to the rights referred to in clause 5.6 above, Binance will reverse any transfers of Digital Assets that have been made to and/or from your Account in connection with such OTC Transaction as if that OTC Transaction had never taken place. With respect to Options Transactions, Binance will reverse any transfer or transactions that may have been entered into. If Binance amends an OTC Transaction pursuant to the rights referred to in clause 5.6 Binance will confirm the details of the amended terms of the OTC Transaction to you through an Agreed Communication channel and will affect such transfers of Digital Assets to and/or from your Account as are required to reflect the terms of the amended OTC Transaction. With respect to Options Transactions, Binance will confirm the details of the amended terms to you through an Agreed Communication Channel. You acknowledge and agree that you shall be solely responsible for your own transactions with any third parties that may have been entered into in connection with or reliance on any OTC Transaction(s) that may be subject to any cancellation or amendment pursuant to Binance’s rights in clause 5.6 above. You further acknowledge and agree that Binance shall not be liable for any losses or damages you may incur due to the transmission of one or more incorrect prices by Binance and/or in the event of extreme market volatility and/or as a result of any cancellation or amendment of OTC Transaction(s).
5.9 You acknowledge and agree that any Trade Instructions, Orders or OTC Transactions may be subject to risk and/or credit limits imposed by Binance from time to time which may be general or specific to you, may apply to all or certain Digital Assets only and at all times are imposed, amended, maintained or removed at the sole discretion of Binance (“Trading Limits”). Binance may reject, or cancel or amend any Trade Instruction or Order that, in its sole discretion, breaches or will breach a Trading Limit. Binance shall have no liability to you for any Loss incurred in connection with any Trade Instructions or Orders which are rejected, or cancelled or amended by Binance in circumstances where such Orders breach a Trading Limit. You undertake to cooperate with Binance and supply all information and data that Binance considers reasonably necessary to set appropriate Trading Limits with respect to the OTC Services.
5.10 You further acknowledge and agree that, in the absence of Manifest Error, Binance’s records as to OTC Transactions entered into with you shall be final and conclusive. However, Binance may at any time rectify any error on any entry, statement, Trade Confirmation or advice which has been proved to its satisfaction, and may demand immediate repayment from you of any Digital Assets erroneously paid over to you as a result of such error. Any and all objections by you shall not be valid unless accompanied by supporting evidence for such objections. You undertake and agree to maintain appropriate records of all Orders and OTC Transactions as required pursuant to Applicable Law.
5.11 Subject to Binance’s rights as otherwise set out in this clause 5, a Trade Confirmation which does not accurately reflect the relevant OTC Transaction entered into via an Agreed Communication Channel: (a) does not affect the validity of the OTC Transaction which the Trade Confirmation evidences; and (b) where there is Manifest Error, does not entitle you to enforce whatever is inaccurately recorded in the Trade Confirmation.
5.12 Binance reserves the right to void or reverse from the outset any OTC Transaction involving or deriving from a Manifest Error or to amend the details of such OTC Transaction to reflect that which Binance considers in its sole and absolute discretion acting in good faith to be the correct or fair details of such a Transaction absent Manifest Error.
5.13 Without prejudice to the generality of the other terms in this Agreement, and in the absence of fraud or bad faith, Binance shall in no circumstances be liable to you for any Loss or demand of whatsoever nature you may suffer or incur in connection with any Manifest Error howsoever arising, whether direct or indirect, special or consequential, including, but not limited to, loss of profit, loss of opportunity or even if Binance had been advised of the possibility of the same arising or that the same were reasonably foreseeable.
5.14 Binance shall bear no Loss and/or liability whatsoever for failing to accept any Trade Instruction and/or Order for exercising or failing to exercise any discretion, power or authority conferred upon Binance by this Agreement. Binance shall not be liable to you for any and all Loss incurred by you arising from any loss or delay in the transmission or wrongful interception of any Trade Instruction and/or Order through an Agreed Communication Channel, including any equipment or system owned and/or operated by or for Binance.
5.15 You agree to pay any applicable fees, expenses, charges and obligations related to your receipt of the OTC Services as specified by Binance from time to time, together with any other amounts payable to Binance under this Agreement and the Terms of Use.
5.16 All OTC Transactions are settled by way of a transfer of Digital Assets directly to and from your Account on a per trade basis. Netting will not be applied between multiple OTC Transactions unless otherwise agreed in writing between you and Binance. Binance may agree to permit settlement of OTC Transactions to and from an external wallet held by you outside of the Binance infrastructure, however is not obliged to do so. If Binance permits settlement of OTC Transactions to an external wallet, you shall be solely liable for the payment of all fees and charges associated with such settlement and you undertake to fully reimburse Binance on demand for any fees, charges or Loss incurred in connection with such settlement.
5.17 Binance shall be under no obligation to provide valuations of OTC Transactions but if valuations are provided, they shall be for information purposes only and are intended solely for your own use. Unless expressly stated otherwise, any valuations will be indicative values based on mid-market levels from time to time on the date specified. Although valuations represent Binance’s estimate of the current economic value of an OTC Transaction based upon mid-market levels, the valuations may also include adjustments to take account of, amongst other things, transaction size, market liquidity, and/or use of capital. For certain OTC Transactions, it may be necessary to make assumptions relating to future market conditions and derive valuations from internal proprietary models. Valuations based on different assumptions and/or models may yield different results. Any valuations provided by Binance with respect to OTC Transactions neither represent the actual terms at which new OTC Transactions could be entered into nor the actual terms at which existing OTC Transactions could be liquidated or unwound. Binance shall not be liable for any errors or omissions in computing or disseminating any valuation and shall not be liable for any Loss, claim or damages (whether direct, indirect, consequential or otherwise) which may arise to valuations provided to you that are used by you or any third party.
6. Algorithmic Orders
6.1 If permitted by Binance, you may submit an Order for Binance to execute an OTC Transaction by means of an algorithmic execution tool made available by (and proprietary to) Binance, which will seek to execute your Order by means of a pre-determined execution methodology for the relevant algorithm (an “Algo Order”). You acknowledge and agree that any execution methodology selected by you in connection with an Algo Order will not guarantee that the OTC Transaction requested will be executed in full and that the effectiveness of any algorithm may depend on the validity of the assumptions underlying it and prevailing market conditions, which may impact these assumptions.
6.2 You acknowledge and agree that you shall be solely responsible for ensuring that any Algo Order is appropriate for your needs and that any algorithm selected will be consistent with any applicable Trading Limits or other parameters, limitations or conditions that may apply to your execution of any Transaction. Binance is not responsible for your choice of algorithm and shall not be responsible for evaluating your goals in selecting any algorithm. The output and offering of any algorithm is not investment advice or any recommendation as to the use, appropriateness or suitability of any Transaction to be executed or the applicable execution methodology. You acknowledge that your use of any algorithm may be limited by Applicable Law and that you shall not provide any Algo Order to Binance unless you have determined that it is consistent with Applicable Law.
6.3 Binance does not guarantee execution of your Algo Order. Your Algo Orders may be executed by partial fills at different prices. If Binance has been unable to execute the entire amount of your Algo Order, the remaining portion of your Algo Order will not be executed.
6.4 In the case where an Algo Order could have an impact on the market and/or adversely impact availability of liquidity across the relevant product, Binance may implement certain controls in its discretion in relation to the execution of such Algo Order.
6.5 Binance charges a fee for Algo Orders, which will be agreed in advance with you. The applicable fee is added as a component to the Price of the resultant transaction(s) executed. Fees charged may vary depending on the algorithmic strategies selected.
6.6 For the purposes of submitting Algo Orders, Binance may offer or make available for your access and use certain technology and electronic trading systems, which may include web applications, APIs, software, software code, hardware, programmes, protocols and/or displays (the ‘“Algo Execution Service”’). Accordingly, Binance grants you a revocable, non-exclusive, non-transferable right to access and use the Algo Execution Service for the purposes of submitting Algo Orders in accordance with this Agreement. Binance may limit, revoke or vary such license and/or change, suspend, terminate, restrict or discontinue the Algo Execution Service (or any part of thereof) or any services, information, features or functions accessible by means of the Algo Execution Service or your access to the Algo Execution Service for any reason at any time without notice or liability.
6.7 You acknowledge and agree that the Algo Execution Service is provided on an “as is'' and “as available” basis and Binance makes no representation or warranty of any kind, express or implied, with respect to the functionality, operation or otherwise of the Algo Execution Service and does not represent or warrant that the Algo Execution Service or any part thereof is free from defect, failure or interruption or that any Algo Order placed pursuant to the use of the Algo Execution Service will be executed or is fit for your purposes or any particular purpose. Without prejudice to the foregoing, in the absence of any fraud or wilful default of Binance, Binance shall not in any event be liable for any system error, faults or failure of the Algo Execution Service whatsoever and howsoever arising or caused, including (without limitation) any errors, malfunctions or breakdown of, or inability to access the Algo Execution Service or any delays or interruptions in transmission of Algo Orders due to breakdown, excessive call volume or failure of transmission or communication equipment on the internet or otherwise, including, but not limited to, communications problems, computer software or hardware breakdowns, malfunctioning errors, any and all problems or glitches associated with computer problems or any other technical cause or causes.
6.8 Technical difficulties may be encountered in connection with the Algo Execution Service. Such difficulties may include, but not be limited to, malfunctions, failures, delays, hardware damages or software erosion. Such difficulties could be the result of hardware, software or communication link inadequacies or any other cause and such difficulties could lead to possible economic and/or data loss. In the absence of any fraud or wilful default on the part of Binance, Binance shall not in any event be liable for any loss, cost, claim, demand, expense or damage including, without limitation, loss of profit, loss of revenue, loss of opportunity, consequential, unforeseeable, special or indirect damages or expenses which arise directly or indirectly as a result of accessing or using the Algo Execution Service, even if Binance had been advised of the possibility of the same arising or that the same were reasonably foreseeable.
7. Representations and warranties
7.1 In addition and without prejudice to the representations and warranties made by the Parties in the Terms of Use (and, if applicable, the FSA), you hereby represent and warrant as follows each time you enter into an Transaction:
You are capable of assessing the merits of and understanding (on your own behalf or through independent professional advice), and understand and accept the risks and the terms and conditions of the relevant Transaction and are capable of assuming, and assume, the risks of that Transaction; and
you are acting for your own account and have made your own independent decisions to enter into the relevant Transaction and as to whether the Transaction is appropriate and proper for you based on your own judgment and upon advice from such advisors as you have deemed necessary. You are not relying on any communication (written or oral) made by or on behalf of Binance as investment advice or as a recommendation to enter into the Transaction, it being understood that information or explanations in relation to the terms of a Transaction shall not be considered as investment advice or a recommendation to enter into that transaction. Binance is not acting as your fiduciary or adviser in connection with that Transaction.
8. Limitations on liability
8.1 You acknowledge and agree that the use of an Agreed Communication Channel in connection with the OTC Services is entirely at your own risk and accordingly, you assume full responsibility and risk of loss resulting from or relating to such use.
8.2 Without prejudice to the foregoing and without prejudice to or duplication of any disclaimers, limitations or liability and indemnity provisions set out in the Terms of Use (and, if applicable, the FSA), and except to the extent that liability cannot be excluded under any applicable law or regulation, you acknowledge and agree that:
(a) neither Binance nor any of its affiliates, their respective directors, shareholders, member, officers, employees, attorneys, agents, representative, suppliers or contractors (“Related Persons”) shall be liable for any Loss, damage or claim of any kind whatsoever arising directly or indirectly as a result of: (i) any Price provided by Binance; (ii) any errors in or omissions from an Agreed Communication Channel; (iii) any failure of an Agreed Communication Channel to transmit, or any delay in the transmission or receipt of any Trade Instruction or Order, any rejection or non-execution of any Trade Instruction or Order, or any delay by you in the receipt of any notification (including any Trade Confirmation) confirming that any Trade Instruction or Order has or has not been executed; or (iv) any unauthorised access to or use of an Agreed Communication Channel;
(b) neither Binance nor any Related Persons shall have any liability arising from Trade Instructions, Orders, investment decisions or purchases of any third party goods or services (including financial instruments and Digital Assets) based on any Price or any other information provided through an Agreed Communication Channel or otherwise;
(c) under no circumstances shall Binance or any Related Persons be liable for any damages whatsoever, whether direct, indirect, punitive, special or consequential, that are directly or indirectly attributable to the use of, or inability to use, an Agreed Communication Channel or the OTC Services, even if advised of the possibility of such damages or if such damages were foreseeable;
(d) neither Binance nor any Related Persons shall be liable for any failure to perform any obligation under this Agreement or for any delay in the performance thereof, due to force or condition beyond Binance’s reasonable control; and
(e) the total aggregate liability of Binance and its Related Persons in connection with this Agreement and the OTC Services, whether based in contract, tort (including negligence or strict liability), or otherwise, will not exceed [one hundred thousand U.S. Dollars (USD 100,000). The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy.