Terms of Service
Client enters into this Account Application and Agreement (“Agreement”) with Fabriik as of the date this document is executed by Client.
PART 1 – DEFINED TERMS & CONDUCTING BUSINESS WITH FABRIIK
1.1. “Authorised User” means an individual or entity as may be designated by Client and identified in writing to Fabriik to have authority to act on Client’s behalf. Fabriik shall be permitted to rely upon such notice without any duty to determine the validity or propriety either of such status or appointment or of any instrument purporting to effectuate or document such status or appointment. Client will ensure that the Authorised User is aware of, and agrees to be bound by, the terms and conditions set forth under this Agreement and that Client shall provide to Fabriik written evidence of the agreement of such individual or entity.
1.2. “Balance Due” means the amount of funds outstanding to Fabriik by Client.
1.3. “Recipient” means any payee so designated by Client.
1.4. “Client” means the party entering into this Agreement with Fabriik.
1.5. “Client Purchase Price” means the price per applicable Digital Asset set forth in an Order multiplied by the number of Client Purchased Digital Assets set forth in such Order.
1.6. “Client Purchased Digital Assets” means the number and type of Digital Asset Client agrees to purchase from Fabriik (or from such seller on behalf of whom Fabriik is acting as agent) pursuant to an Order.
1.7. “Contribution” means content uploaded by Client to the Online System.
1.8. “Credit Risk” means the possibility of a loss resulting from Client’s failure to repay a Settlement.
1.9. “Digital Assets” means type of assets which can only and exclusively be transmitted by means of blockchain technology, including but not limited to NFTs, digital coins and digital tokens and any other type of digital mediums of exchange, such as Bitcoin, Bitcoin Satoshi Vision, Ethereum, etc., to the full and absolute exempt of securities of any kind.
1.10. “Digital Asset Network” means the computer network that governs the transfer of applicable Digital Asset.
1.11. “Custodial Account” means an account opened by Client, which is used by Client to manage and direct the investment of Custodial Funds.
1.12. “Custodial Funds” means funds, assets, moneys and/or other property (including real and personal, tangible or intangible) deposited by Client into the Custodial Account.
1.13. “Exchange” means an exchange of the Digital Asset of one type to the Digital Asset of another type at the terms and conditions set forth by exchanging parties, which is executed via third party services in the respective block-chain network.
1.14. “Fabriik” means the Fabriik Group of related companies, including parent, subsidiaries and affiliates, including, without limitation, entities existing now or in the future which owns, owning or in common ownership with the relevant entity.
1.15. “Fabriik Intellectual Property” means all copyright, trademarks, service marks, trade secrets, registered and unregistered design rights and all other intellectual property rights that are the exclusive property of Fabriik.
1.16. “Fabriik Markets API” means a program connecting Client with Fabriik’s Online System.
1.17. “Fabriik Purchase Price” means the price per applicable Digital Asset set forth in an Order multiplied by the number of Fabriik Purchased Digital Assets set forth in such Order.
1.18. “Fabriik Purchased Digital Assets” means the number and type of Digital Asset Fabriik (or such purchaser on behalf of whom Fabriik is acting as agent) agrees to purchase from Fabriik pursuant to an Order.
1.19. “Fork” means when a Digital Asset Network’s existing code is changed, and an old version remains on the network while the new network is created. 1.20.“Investment Direction” means an instruction by Client to Fabriik with regards to their Custodial Funds and activity within the Custodial Account.
1.21. “Loss” or “Losses” means direct and consequential financial losses, damages, costs, judgments, penalties, fines, expenses, legal and accounting fees and expenses, costs of investigation, settlements, court costs and other expenses of litigation, as well as fees and expenses and losses not related to litigation or legal process and lost profits.1.22.“NFT” means non-fungible token which is a digital file stored on a digital ledger (commonly known as blockchain) that certifies a unique Digital Asset and the ownership of such asset.
1.21. “Termination Event” means, subject to the Regulations, if Client:
1.21.1. fails to deliver to Fabriik Payment or communicates to Fabriik an intent not to provide payment in relation to any Order;
1.21.2. disputes the validity or existence of an Order;
1.21.3. defaults, or communicates its intent to default, on any of its obligations described in this Agreement including any of the representations or warranties set out in this Agreement or elsewhere;
1.21.4. is or is reasonably likely in Fabriik’s opinion to become Insolvent;
1.21.5. receives notice of, or becomes subject to a regulatory or enforcement action or investigation which, in the reasonable judgment of Fabriik, will materially impair the terms of this Agreement, the expected economic value of this Agreement, or the business reputation of Fabriik;
1.21.6. is in material breach of this Agreement or any terms of an Order;
1.21.7. places an Order reasonably deemed by Fabriik, to represent a regulatory, compliance or business risk; or
1.21.8. is, or is suspected of, regulatory non- compliance or breach of any laws or regulations.
1.22. “Third Party Content” means the content provided by third parties, including without limitation links to web pages of such parties, which may be represented on the Website and other services.
1.23. “Third Party Service” means any platform or network in which Digital Assets belong to you or where you are the beneficial owner of Digital Assets; or any website or platform which we redirect you to; and this platform or website is maintained by a third party outside of the Services, including, but not limited to third party accounts.
1.24. “TID” means the Static Trade ID.
1.25. “Trade Requests” means a Static Trade Request and a Static Trade collectively.
1.26. “Trading Services” means Client’s use of Fabriik’s Trading API.
1.27. “Weave” means an online digital widget for users to trade Digital Assets.
2. CONDUCTING BUSINESS WITH FABRIIK
2.1. Agreement. This Agreement shall apply to any and all Orders.
2.2. Execution of Order. Any Order received from Client will be acted upon on a commercially reasonable efforts basis only. There is no guarantee by Fabriik that an Order can or will be filled or that instructions provided can or will be acted upon. For example, Fabriik may reject any Order if:
2.2.1. Fabriik determines, in good faith and in its sole discretion, that such Order was not authorised by Client;
2.2.2. Fabriik determines, in its sole discretion, that the Order may be contrary to law, contrary to prudent business practices, outside Fabriik’s risk profile, or would require Fabriik to exceed the Facility granted to Client;
2.2.3. Client is Insolvent or in default of the Agreement or Fabriik determines, in its sole discretion, that it may not receive payment from Client in Settlement of the related Order; or
2.2.4. the Order is unclear, incorrect, incomplete or unsatisfactory to Fabriik for any reason.
2.3. Reliance on Instruction. Fabriik is hereby authorised by Client to accept, act and rely upon any instruction that Fabriik reasonably believes to have been made by, or on behalf of Client. Fabriik and its representatives are not liable for any Losses Client may suffer as a result of the misconduct of any person purporting to act on behalf of Client.
2.4. No Advice. Client represents that each Order entered into by Client will be based upon Client’s own judgement and that Client is not relying on any communication of Fabriik or its representatives as investment advice, as a recommendation to enter into an Order or as an assurance of expected results. Client acknowledges that Fabriik is not acting as a fiduciary or advisor to Client in respect of any Order. For the avoidance of doubt, Client will obtain any necessary independent legal, tax, financial and other advice in relation to any Order and before accepting this Agreement. Fabriik makes no representation, warranty or guarantee as to the performance, returns, loss or risks in connection with any Order. No representative of Fabriik may waive or vary any of Fabriik’s rights as set out in this Agreement nor may they accept any liability on Fabriik’s behalf.
2.5. Information Sources. Market information may, from time to time, be provided to Client through Fabriik. This information may be obtained from various information providers through sources believed to be reliable. Fabriik does not guarantee the timeliness, sequence, accuracy, completeness, or fitness for a particular purpose of any market information provided through Fabriik. Such information may include opinions and recommendations of individuals or organisations and Client understands that Fabriik may not endorse such recommendations or opinions, and that Fabriik is not providing any investment, tax, accounting or legal advice to Client by including or making available such market information.
2.6. Orders Binding. An Order becomes binding on Client upon receipt by Fabriik and creates an obligation on Client to settle the Order. Any Losses in connection with Client’s failure to settle an Order are the sole responsibility of Client. All Orders shall be subject to all restrictions or limitations, direct or indirect, which are imposed by Fabriik’s charter, articles of incorporation or bylaws; all applicable federal and state laws and regulations; the rules, regulations, customs and usages of any exchange, market or clearing house where the Order is executed; Fabriik’s policies and practices; and this Agreement.
2.7. Evidence of Material Terms of Orders. The Telegram Messenger and/or electronic mail is evidence of certain material terms of the Order. In such circumstances, the records of Fabriik with respect to that Order will constitute conclusive evidence of the terms of the Order. Telegram Messenger and/or electronic mail will constitute conclusive proof and agreement of the Parties of the details of the Order.
2.8. Means of Processing Orders. Fabriik may use whatever intermediary banks, payments systems or methods Fabriik deems commercially reasonable and appropriate for processing an Order. Client agrees to be bound by applicable law, regulations, clearing house rules or other rules or procedures of any funds transfer or communications system that is used. While Fabriik will make every commercially reasonable effort to ensure the timely fulfilment of each Order, Fabriik is not responsible for the speed and timing of payment processing by financial institutions or systems beyond the control of Fabriik. Fabriik is not responsible for any errors or omissions or for any actions that may be taken or not taken, or fees that may be deducted, by any intermediary or correspondent financial institution or by the Recipient’s financial institution in association with any Order, including any cancellation or rejection.
2.9. Cancellation and Correction.
2.9.1. Once Fabriik accepts an Order, Client may not cancel the Order and is liable for all amounts owed as result. If Client otherwise wishes to amend an Order, Fabriik shall use commercially reasonable efforts only to do so. There is no assurance that Fabriik will be able to cancel or amend an Order.
2.9.2. Client acknowledges that Fabriik cannot reverse a Digital Asset Order which has been broadcast to a Digital Asset Network, and losses due to fraudulent or accidental transactions are not recoverable.
PART 2 - FABRIIK SERVICES: CUSTODY, OTC SERVICES, FABRIIKX, MONEYBUTTON WALLET, WEAVE & TRADING API
General Disclaimer. By agreeing to these Terms and Conditions Client is only bound by the terms applicable to the Services they engage in.
If Client avails itself of this Service the following terms apply.
3.1. During the duration of this Agreement, Fabriik operates as the Account Holder Agent (as defined in Prime Trust, LLC Terms and Conditions) on the account and shall provide custodial services via Prime Trust, LLC (the “Regulated Custodian”). If Client engages in Fabriik’s Custodial Services, they will need to sign the Prime Trust Terms and Conditions, in addition to this Agreement. The Regulated Custodian, not Fabriik, holds custody and possession of the Custodial Funds held in the Custodial Account; provided, however, that certain obligations and rights, such as receipt of fees and reimbursement of expenses, are retained exclusively by Fabriik as set forth under this Agreement.
3.2. Client or Authorised User, shall retain full responsibility for the management and Investment Direction of all Custodial Funds held in the Custodial Account.
3.3. Fabriik will monitor and/or dispose of Custodial Funds to the Regulated Custodian as specifically directed by Client or Authorised User to the extent there are sufficient Custodial Funds in the Custodial Account to effectuate any such direction. Client agrees that the Authorised User is vested with the authority and responsibility to manage and direct investment of the Custodial Funds.
3.4. Client directs Regulated Custodian to sweep available free credit balances automatically into a bank account as described in Uninvested Cash Disclosure until such time as further direction is received from Client. Client also authorizes Regulated Custodian, in its sole discretion, to transfer any such funds swept into such bank account into a different bank account at any time without obtaining any further approval from Client.
3.5. Fabriik or Regulated Custodian will not exercise the voting rights and/or other shareholder rights with respect to any investment in the Custodial Account unless Client or Authorised User provides timely written directions acceptable to Fabriik in accordance with the policies and procedures adopted by Fabriik and effective at the time of such direction.
3.6. Regulated Custodian shall:
3.6.1. safe keep the Custodial Funds;
3.6.2. monitor, maintain, and/or dispose of Custodial Funds as specifically directed by Client or Authorised User;
3.6.3. keep timely and accurate records as to the deposit, disbursement, investment, reinvestment, and/or other application of the Custodial Funds;
3.6.4. maintain separate subaccounts as appropriate to reflect the different nature of the contributions constituting the Custodial Account and/or such other appropriate distinctions as may be applicable from time to time, such as the designation of different investment managers by Client with respect to the investment of certain portions of the Custodial Account; and
3.6.5. prepare, maintain, and provide periodic reports and statements to Client or other individual or entity with authority to direct the investment of Custodial Funds, if Fabriik is so directed in writing reflecting:
22.214.171.124. the then current status as to Custodial Funds comprising the Custodial Account; and
126.96.36.199. transactional activities involving the Custodial Funds since the last report.
3.7. Reporting. In preparing reports, statements, and any other disclosures to be provided under the terms of this Agreement, Fabriik will cooperate with Client in satisfying any information and/or timing requirements that may be imposed upon Client under the provisions of any applicable federal or state law. Client acknowledges that all reports, statements, and disclosures prepared by Fabriik will only be as accurate as the information provided to Fabriik by Client. Fabriik has no duty to confirm the accuracy of any such information it receives in the preparation of any report, statement, or other disclosure.
3.8. Value of Custodial Funds. For recordkeeping and reporting purposes, Regulated Custodian shall use reasonable, good faith efforts to ascertain the fair market value of each asset within the Custodial Account through consideration of relevant factors generally recognized as appropriate to the application of customary valuation techniques. However, where assets are illiquid or their value is not readily ascertainable on either an established exchange or generally recognized market, Client acknowledges that: (i) the valuation is by necessity not a true market value; (ii) the valuation is merely an estimate of value in a broad range of values; and c) accuracy of the valuation should not be relied upon for any other purposes. The precision with which a value is assigned is a factor of the nature of the asset and the cost effectiveness of pursuing a more comprehensive appraisal. In certain cases where fair market value is not readily ascertainable and Regulated Custodian does not have a recent qualified independent appraisal, Regulated Custodian may follow an internal protocol for assigning value based on the cost of the asset or may rely upon a current independent appraisal obtained by Client. Client acknowledges that Regulated Custodian neither provides a guarantee of value nor assures the appropriateness of the appraisal techniques applied in developing an estimate of value. Regulated Custodian assumes no responsibility for the accuracy of the valuations presented with respect to assets whose value is not readily ascertainable on either an established exchange or a generally recognized market.
3.9. Accuracy. Client will have sixty (60) days after receipt of any document, statement, or other information related to the Custodial Account from Fabriik to notify Fabriik in writing of any errors or inaccuracies reflected in the material. If Client does not notify Fabriik within sixty (60) days, the applicable document, statement, or other information shall be deemed correct and accurate, and Fabriik shall have no further liability or obligation with respect to such document, statement, other information, or any transactions described therein.
3.10. Investment Direction. Client represents that Custodial Funds being acquired or otherwise dealt with pursuant to an Investment Direction from Client or Authorised User is a permissible investment and/or transaction in accordance with applicable law. Client represents that if any Investment Direction under this Agreement is a security under applicable federal, state, or other applicable securities laws, such investment has been registered or is exempt from registration under such securities laws. Except as otherwise limited or qualified by other provisions of this Agreement, Fabriik agrees to inform the Regulated Custodian that all Custodial Funds shall be invested in accordance with the directions provided by Client or Authorised User or entity. If any conflicting direction is provided to Fabriik from an Authorised User, Fabriik shall presume that the Investment Direction provided by Client shall govern unless compelling evidence to the contrary is provided to Fabriik.
3.11. Investment Direction Process. In directing Fabriik, Client or Authorised User must submit Investment Direction in writing via the email account designated to be used by Client. Fabriik and Regulated Custodian shall have no liability when acting upon any instrument, certificate, paper or transmission believed to be genuine, signed or presented by the proper person or persons whether or not by facsimile, email or other form acceptable to Fabriik, and Fabriik shall be under no duty to make any investigation or inquiry as to any statement contained in any such communication but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained. Client or Authorised User may direct Fabriik to execute and deliver any and all documents provided to Fabriik in connection with specific directed investments, and Fabriik shall have no responsibility to verify or determine that any such documents are complete, accurate, or constitute the documents necessary to comply with such investment direction.
3.12. Withdrawal & Transfer of Custodial Funds. All directives for withdrawal or transfer of all or a portion of Custodial Funds from the Custodial Account shall include the method of distribution and be submitted to Fabriik via the Investment Direction Process described above in Section 3.11. in writing via electronic delivery. The tax identification number of the Recipient must also be provided to Fabriik in the Investment Direction before distribution. Withdrawals shall be subject to all applicable tax and other laws and regulations, including possible early withdrawal penalties or surrender charges and tax withholding requirements.
3.13. No Investment Responsibility. Fabriik and Regulated Custodian shall not be responsible or liable for any investment decisions or recommendations with respect to the utilization, investment, reinvestment, sale, or disposition of Custodial Funds held in the Custodial Account. Fabriik shall not be responsible for reviewing any assets held in the Custodial Account and shall not be responsible for questioning, investigating, analyzing, monitoring, or otherwise evaluating any of the investment decisions of Client or such other investment direction that may be provided by an Authorised User. It is not the responsibility of the Fabriik to review the prudence, merits, viability, or suitability of any Investment Direction by Client or Authorised User or to determine whether the investment is acceptable under applicable law. Fabriik does not and will not endorse any investment advisor, representative, broker, or other party selected by Client or Authorised User. In the event Fabriik determines that any investment instruction is unclear, Fabriik shall act as soon as practical to obtain clarification regarding such instruction. Pending clarification, Regulated Custodian shall hold assets subject to such instruction in their existing form or liquidate the same as directed, without liability for loss of income or appreciation and without liability for any interest or dividends.
3.14. The value of the Custodial Account at any particular time will depend on: (i) the performance of the investments as selected by the Client or Authorised User; (ii) the timing of charges to and payments made from the Custodial Account; and (iii) the value of charges to and payments made from the Custodial Account. Fabriik does not predict, represent, or guarantee the value of the Custodial Account as of any future date and does not predict, represent, or guarantee any rate of return regarding the Custodial Funds held in the Custodial Account.
3.15. Any review performed by Fabriik with respect to an investment shall be solely for its own purposes of determining the administrative feasibility of the investment. Neither such review nor its acceptance should be construed in any way as an endorsement of any investment, investment company or investment strategy.
3.16. Transaction Responsibility. Regulated Custodian shall use reasonable efforts to acquire or sell investments in accordance with the Investment Direction within a reasonable period of time. Fabriik shall make reasonable efforts to notify Client or Authorised User if Fabriik and/or Regulated Custodian is unable or unwilling to comply with a particular Investment Direction. Subject to the foregoing, Regulated Custodian shall remit funds as directed, but have no responsibility to verify or assure that such funds have been invested to purchase or acquire the asset selected by Client or Authorised User. Fabriik is not responsible for inquiring into the nature, amount, timing, or propriety either of any deposit into the Custodial Account made by Client or Authorised User or of any disbursement from the Custodial Account required or requested, including, without limitation, any required minimum distributions mandated under an applicable law. Except as otherwise provided, Client shall have full responsibility for determining any required minimum distributions, as well as for any tax or investment consequences with respect to any and all Custodial Funds deposited into, held by, and disbursed from the Custodial Account.
3.17. Limited Liability. Fabriik and Regulated Custodian will not bear or assume any responsibility to secure or maintain fire, casualty, liability or other insurance coverage on any personal or real property held as a part of the Custodial Account or which serves as collateral under any mortgage or other security instrument held by the Custodial Account with respect to any promissory note or other evidence of indebtedness; nor does Fabriik undertake to notify Client regarding the need to secure, renew or maintain such insurance coverage. It is incumbent upon Client to arrange for such insurance as it determines is necessary or appropriate to protect the assets of the Custodial Account. Fabriik will not be responsible for notification or payment of any insurance premiums, real estate taxes, utilities or other charges with respect to any investment held by the Custodial Account, unless Client specifically directs Fabriik to make such payments via the Investment Direction Process and sufficient funds are available to make payment from the Custodial Account.
3.18. Fees. To the extent not paid directly by Client from the Custodial Account, Client agrees to pay any fees as established by Fabriik in the Fee Schedule. Such fees may include, without limitation, establishment fees, annual administrative fees, termination fees, transfer fees, transaction fees, legal fees, and investment commissions. Should Client not make payment in a timely manner, Fabriik hereby authorizes Regulated Custodian to make a direct deduction from the Custodial Account in an amount equal to the value of the outstanding fees. Brokerage commissions and related costs will always be deducted directly from the Custodial Account. Fabriik agrees to give Client at least thirty (30) days written notice prior to changing a fee or imposing any new fee.
3.19. Expenses. Client agrees to pay from the Custodial Account any income, transfer tax and any other taxes that may be levied or assessed upon all or any portion of the Custodial Funds held in the Custodial Account and all other administrative expenses reasonably incurred by Fabriik in the administration of the Custodial Account. These administrative expenses may include legal fees or other professional fees incurred by the Fabriik in connection with the operation and management of the Custodial Account.
3.20. Liquidation of Custodial Funds. Where it has been determined that any fee, expense (including, without limitation, reimbursement for liabilities arising under this Agreement), tax, federal tax levy, penalty, surrender charge and/or other similar obligation of the Custodial Account is to be paid from the Custodial Account, Client or Authorised User shall promptly direct Fabriik to, which Custodial Funds held in the Custodial Account are to be liquidated to satisfy such obligation; provided, however, that where such direction is not promptly forthcoming, Fabriik shall direct the Regulated Custodian, to the extent possible, to apply any liquid assets held in the Custodial Account to satisfy such obligation, and, thereafter, to the extent necessary, have the right to liquidate such other of the Custodial Funds as it deems appropriate, and Fabriik shall not be held liable for any adverse consequences resulting from such decision.
3.21. Insufficient Custodial Funds. To the extent that Client does not directly pay applicable fees, expenses or other obligations and there are insufficient Custodial Funds which are liquid and/or which can be readily liquidated to pay any outstanding fee, expense or other obligation owed to Fabriik, Fabriik is hereby authorised by Client to charge such outstanding fees against a valid credit card account number provided by Client. In order to provide Fabriik with a valid credit card account number and proper authorization to make charges against the credit card, Client shall complete a Credit Card Authorization form as provided by Fabriik. If the credit card account expires, becomes invalid, or exceeds its maximum credit limit, Client agrees to immediately inform Fabriik, and contemporaneously provide another valid credit card account number to Fabriik by completing a new Credit Card Authorization form that allows Custodian to charge outstanding fees against the new credit card account.
3.22. Unfunded Accounts. If an account is not funded by no later than ninety (90) days after the Effective Date, it will be closed. Once an account is closed, it cannot be reactivated.
3.23. Uninvested Cash Disclosure. Once Client has funded the account, Client or its Authorised User shall become the Account Holder of the Custodial Account (the “Account Holder”). Upon such completion, the Account Holder hereby appoints Fabriik as the Account Holder’s attorney-in-fact with respect to investments and distributions concerning the Account Holder’s account. As part of this, among other things, the Account Holder directs Regulated Custodian to:
3.23.1. deposit all cash for which the Account Holder has not already provided investment instructions into a pooled custodial deposit account or accounts with one or more third party financial organizations selected by Fabriik at Regulated Custodian’s sole discretion and without any further approval from the Account Holder provided that any and all such accounts qualify as common investment funds;
3.23.2. retain such interest as further compensation for the services Regulated Custodian renders to its Account Holders and, in its sole discretion, place the funds in a non-interest bearing pooled deposit account or accounts;
3.23.3. enter into such subaccount agreements as may be required by the nature of the deposit accounts between the selected financial organizations and Regulated Custodian under which Regulated Custodian may receive a fee from the selected financial organizations to keep all records pertaining to the Account Holder’s share of the pooled custodial accounts which fees will be retained by Regulated Custodian; and
3.23.4. sign checks from time to time on the pooled custodial accounts which are to be honored by the financial organizations for withdrawal of Account Holder’s funds from such pooled custodial accounts for distributions, investments, fees, and other disbursements directed or agreed to by the Account Holder.
4. OVER THE COUNTER (OTC) SERVICES
If Client avails itself of this Service the following terms apply.
4.1. OTC Account. As a condition of using the OTC Services, Client will open an OTC Account with Fabriik and provide Fabriik with information (including Personal Information) as it may reasonably be requested. Client acknowledges that an OTC Account is not a bank account and funds or Digital Assets received or held by Fabriik or by Client, and transacted through Fabriik do not earn interest.
4.2. Orders. Either Party may engage the other Party in discussions regarding the purchase or sale of a specified amount of a given Digital Asset at a specified price. Such discussions may be completed via Telegram or electronic mail. Client acknowledges that Fabriik may elect, at its sole discretion, to fulfill such Order by acting either as principal or as agent on behalf of a third party and hereby consents to the execution of all or part of any Orders in such manner. Fabriik will not be responsible for Losses incurred by Client due to Orders that are confirmed and filled, for any reason. Fabriik will be entitled to ignore any instructions not confirmed by Telegram Messenger or electronic mail.
4.3. Settlement of Client Purchased Digital Assets. Client shall deliver Client Purchase Price to Fabriik by transfer of immediately available funds to a bank account specified by Fabriik or by transfer of Digital Assets on the applicable Digital Asset Network to a wallet address specified by Fabriik; and following receipt of funds from Client, Fabriik shall sell, buy transfer and deliver, or cause to be delivered, Client Purchased Digital Assets, as specified in the applicable Confirmation, to Client. Client receives Client Purchased Digital Assets on the Settlement Date.
4.4. Settlement of Fabriik Purchased Digital Assets. Client shall sell, buy, transfer and deliver the Fabriik Purchased Digital Assets to Fabriik by transfer of Digital Assets on the applicable Digital Asset Network to a wallet address specified by Fabriik; and following receipt of the Fabriik Purchased Digital Assets, Fabriik shall deliver the Fabriik Purchase Price to Client by transfer of immediately available funds to the bank account specified by Client or by transfer of Digital Assets on the applicable Digital Asset Network to a wallet address specified by Client. Client receives the Fabriik Purchase Price on the Settlement Date.
4.5. In the event an Order accepted by Fabriik cannot be settled within a reasonable period of time following receipt of payment or Digital Assets from Client for any reason whatsoever, Fabriik shall have the right, in its sole discretion, to terminate the Order and return funds or Digital Assets, as the case may be, together with the applicable fees that would have been payable for the Order, to Client without penalty. Client may be liable for Losses incurred as a result of an unsettled Order.
4.6. Order Limits. Client’s OTC Account may be subject to limits on the amounts that Client may transact or transfer within a certain time period, as determined by Fabriik and notified to Client. Such limits may vary depending on Client’s payment method, the verification steps Client has completed, and any other factors that Fabriik determines are relevant. Fabriik reserves the right to change any such Order limits in its sole discretion, including to prevent or control unlawful activity.
4.7. Transaction Fees. In consideration for Fabriik’s performance of the Services, fees will be included in Client Purchase Price.
4.8. Payments. In order to buy and sell Digital Assets, Client must use a payment method that is accepted by Fabriik as set out in the policies of Fabriik communicated to Client from time to time.
4.9. Authorised Users. No person other than the signatory to this Agreement shall have the ability to place orders with Fabriik on behalf of Client; provided, however, that Client has designated an Authorised User.
If Client avails itself of this Service the following terms apply.
5.1. Fabriik facilitates transactions between the buyer and seller of an NFT via the FabriikX Marketplace located at www.fabriikx.com or such URL as may be designated by Fabriik from time to time, as well as any mobile apps or other services or applications related thereto (collectively “FabriikX”).
5.2. FabriikX is a platform and Fabriik is not a broker, financial institution, or creditor. This Service is an administrative platform only.
5.3. Client acknowledges and agrees that the form and nature of the FabriikX, and any part of it, may change from time to time without prior notice to Client, and that Fabriik may add new or remove existing features and change any part of the FabriikX at its sole discretion.
5.4. Fabriik is not a party to any agreement between the buyer and seller of the NFT on the FabriikX.
5.5. Fabriik earns revenue from FabriikX via transaction fees.
5.6. Fabriik reserves the right to resolve any disputes arising from purchases via FabriikX, including in connection with any auctions or other purchase methods.
5.7. Selling NFT. By minting, providing, or selling an NFT through FabriikX, Client hereby represents and warrants that they own all legal right, title and interest in all intellectual property rights to the NFT Content linked or associated with such NFT, or Client is legally authorised by the intellectual property owner to mint, provide or sell the NFT on FabriikX. Except for NFTs minted on FabriikX, in order to list any NFT for sale on FabriikX, Client must first deposit the NFT for sale for custody with Fabriik until such time as the NFT is sold or they decide to remove the NFT from FabriikX. Fabriik has no obligation or liability to Client for keeping, storing, or helping Client recover any NFT Content associated with their NFTs.
5.8. Buying NFT. When Client purchases an NFT, they own the NFT that is associated with certain NFT Content, but they do not own any intellectual property rights in such NFT Content except for the license grants expressly set forth herein. In certain cases, Fabriik may help to evaluate or provide Client with information about a seller of an NFT. However, such information is provided for informational purposes only. Client bears full responsibility for verifying the authenticity, legitimacy, identity of any NFT they purchase on FabriikX. Fabriik makes no guarantees or promises about the identity, legitimacy, or authenticity of any NFT on FabriikX.
5.9. NFT License. Client retains all rights to the NFT Content they post, upload, submit, or otherwise made available through FabriikX, except for rights expressly granted herein. In order to operate through FabriikX, Fabriik must obtain from Client certain license rights in their NFT Content so that actions Fabriik takes in operating FabriikX are not considered legal violations. Accordingly, by using FabriikX and uploading NFT Content or otherwise made NFT Content available, Client grants Fabriik a license to access, use, host, cache, store, copy, reproduce, transmit, display, publish, distribute, adapt and modify (for technical purposes e.g.. making sure content is viewable on smartphones as well as computers and other devices) NFT Content in any and all media or distribution methods (now known or later developed) but solely as required to be able to operate and provide services of FabriikX. Client agrees that this license includes the right for Fabriik to provide, promote, and improve FabriikX. Client agrees that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable and include a right for Fabriik to make their NFT Content available to, and pass these rights along to, others with whom Fabriik has contractual relationships related to the provision of FabriikX, and solely for purpose of providing FabriikX, and to otherwise permit access to disclose Client’s NFT Content to third parties if Fabriik determines such access is necessary to comply with their legal obligations.
5.10. Client agrees that other users of FabriikX shall have the right to comment on, publish, display, modify or include a copy of Client’s NFT Content as part of the users’ own use of FabriikX. except that the foregoing shall not apply to any of Client’s NFT Content that is posted privately for non-public display on the NFT Marketplace.
5.11. Representations & Warranties. Client represents and warrants that they have obtained all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for their NFT Content. Client agrees that their NFT Content will not contain material subject to copyright or other proprietary rights; unless Client has the necessary permission or are otherwise legally entitled to post the material and to grant Fabriik the license described above.
5.12. Purchase License. If Client sells an NFT through FabriikX, Client grants the buyer of the NFT a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the NFT Content for such purchased NFT, solely for the following purposes: (i) for the buyer’s own personal use; (ii) as part of a marketplace that permits the purchase and sale of such NFTs, provided that the marketplace cryptographically verifies each NFT’s owner’s rights to display the NFT Content for their NFTs to ensure that only the actual owner can display the NFT Content; or (c) as part of a third party website or application that permits the inclusion, involvement, or participation of your NFT, provided that the website/application cryptographically verifies each NFT’s owner’s rights to display the NFT Media for their NFTs to ensure that only the actual owner can display the NFT Content, and provided that the NFT Content is no longer visible once the owner of the NFTs leaves the website/application (the “NFT Purchase License”). If Client buys NFTs, they agree that the NFT Purchase License only lasts as long as Client is the valid owner and holder of the NFT associated with the licensed NFT Content. If Client sells or transfers the NFT to another person, this NFT Purchase License will transfer to such other owner or holder of the NFT, and Client will no longer have the benefits of such NFT Purchase License. Unless otherwise specified by seller of an NFT in writing, Client’s purchase of an NFT does not give them the right to publicly display, perform, distribute, sell or otherwise reproduce the NFT or its related NFT Content for any commercial purpose.
5.13. Client agrees to not make any claims against Fabriik for any breach of these NFT Terms by a seller or buyer, including if they make commercial use of the related NFT Content in breach of these NFT Terms.
5.14. Fabriik have the right to remove or refuse to post any of Client’s NFT Content, including NFTs, (i) for any or no reason in Fabriik’s sole discretion; and (ii) take any action with respect to the NFT Content that Fabriik deem necessary or appropriate in Fabriik’s sole discretion, including if it is believed that the NFT Content violates these NFT Terms, infringes any intellectual property right of any person or entity, threatens the personal safety of other clients of FabriikX or the public, or could create liability for Fabriik or other clients.
5.15. Copyright Infringement. Fabriik may, but is not obligated to, monitor the NFTs uploaded to FabriikX for infringement of a third party’s intellectual property rights. Fabriik cannot undertake to review all content before it is uploaded to FabriikX and cannot ensure prompt removal of objectionable content after it has been uploaded or posted. Fabriik assumes no liability for any action regarding transmissions, communications, or content provided by any client or user of FabriikX. If Client believes that any NFT Content has been copied in a way that constitutes copyright infringement, they may notify Fabriik’s legal department at firstname.lastname@example.org. The following information is to be provided with the communication: (i) identification of the copyrighted work that is claimed to be infringed; (ii) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the NFT Marketplace; (iii) information for our copyright agent to contact you, such as an address, telephone number and e-mail address; (iv) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (v) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (vi) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
5.16. Fabriik may, in appropriate circumstances and at its discretion, disable or terminate accounts of users who repeatedly infringe copyrights or intellectual property rights of others. Any user of the NFT Marketplace who has uploaded or posted materials identified as infringing as described above may supply a counter-notification. When Fabriik receives a counter-notification, it may reinstate the posts or material in question, in its sole discretion. To file a counter-notification with Fabriik, Client must provide a written communication (by email) that sets forth: (i) Client’s name, address, telephone number, e-mail address and physical or electronic signature; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; and (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
5.17. Please note that Client will be liable for damages if they materially misrepresent that content or an activity is not infringing the copyrights of others.
5.18. Payment. Client must provide and maintain valid payment information in connection with their Fabriik Account. Client represents and warrants that they are authorised to use the payment method of choice via FabriikX. Client authorizes Fabriik to charge their payment method for the total amount of the purchase price. Client’s order may be suspended or cancelled for any reason if the payment method cannot be verified, is invalid or is otherwise not acceptable. Fabriik holds no liability to Client or to any third party for any claims or damages that may arise as a result of any payments or transactions that are engaged in via FabriikX, or any other payment or transactions that are conducted via FabriikX. Fabriik does not provide refunds for any purchases that are made on or through FabriikX – whether for NFTs or anything else.
5.19. Assumption of Risk. All purchase and sales made on FabriikX are entirely at Client’s own risk. Client acknowledges that they have obtained sufficient information to make an informed decision to purchase an NFT. Client indemnifies Fabriik from all liability for any losses they incur by transacting or facilitating transactions on FabriikX.
6. MONEYBUTTON WALLET (the “Wallet”)
If Client avails itself of this Service the following terms apply.
6.1. The Wallet is provided to Client exclusively by Fabriik. At no point will Fabriik ever take custody or control over Digital Assets stored in Client’s Wallet.
6.2. Wallet Creation. When Client creates a Wallet, the Wallet software generates a cryptographic mnemonic that Client may use to send and receive any supported Digital Assets via the relevant Digital Asset Network. Client is solely responsible for storing, outside of the Services, a backup of any Wallet, mnemonic, private key or transaction information that they maintain in their Wallet. If Client does not maintain a backup of their Wallet data, they will not be able to access Digital Assets previously accessed using their Wallet in the event that Fabriik discontinue or no longer offer some or all of the Services or may otherwise lose access to Digital Assets. Fabriik is not responsible for maintaining this data on Client’s behalf.
6.3. Account Content. Client understands that their content (not including credit card information), may be transferred and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
6.4. Any Digital Assets transaction created with the Wallet must be confirmed and recorded in the digital assets ledger associated with the relevant Digital Asset Network.
6.5. Fabriik has no control over any Digital Assets Network and therefore cannot and does not ensure that any transaction details Client submits via the Services will be confirmed on the relevant Digital Asset Network. Client agrees and understands that the transaction details they submit via the Services may not be completed, or may be substantially delayed, by the Digital Asset Network used to process the transaction. Fabriik does not guarantee that the Wallet can transfer title or right in any Digital Assets or make any warranties whatsoever with regard to title.
6.6. Transaction Modification. Once transaction details have been submitted to a Digital Asset Network, Fabriik cannot assist Client to cancel or otherwise modify the transaction or transaction details. Fabriik has no control over any Digital Asset Network and does not have the ability to facilitate any cancellation or modification requests.
6.6.1. Forks. In the event of a Fork, Fabriik may not be able to support activity related to Client’s Digital Assets. Client agrees and understands that, in the event of a Fork, the transactions may not be completed, completed partially, incorrectly completed, or substantially delayed. Fabriik is not responsible for any loss incurred by Client in whole or in part, directly or indirectly, by a Fork.
6.6.2. Password. Fabriik does not receive or store Client’s Wallet password, nor any keys, or mnemonic. Fabriik cannot assist Client with Wallet password retrieval. Client is solely responsible for remembering, storing and protecting their Wallet password and mnemonic. Any Digital Assets Client has associated with such Wallet may become inaccessible if they do not know or protect their Wallet password. Any third party with knowledge of one or more of Client’s credentials (including, without limitation, a mnemonic, a backup phrase, wallet identifier or password) can dispose of Digital Assets in their wallet. When Client creates a Wallet, they must: (i) create a strong password that they do not use for any other website or online service; (ii) provide accurate and truthful information; (iii) protect and keep secret all credentials for the Wallet; (iv) protect access to their device and Wallet; (v) promptly notify Fabriik if they discover or otherwise suspect any security breaches related to their Wallet; and (vi) use the backup functionality provided through the Wallet and safeguard their backup files. Client agrees to take responsibility for all activities that occur under their Wallet and accept all risks of any authorised or unauthorised access to their Wallet, to the maximum extent permitted by law.
6.6.3. Fees. Fabriik does not currently charge a fee for Wallet, receiving, sending or controlling Digital Assets. However, Fabriik reserves the right to do so in the future, and in such case any applicable fees will be displayed prior to Client incurring the fee. Network fees (including, without limitation “miner’s fees”) required to use a Digital Asset Network may apply to a transaction. Client is solely responsible for paying any such fee and Fabriik will neither advance nor fund such a fee on Client’s behalf, nor be responsible for any excess or insufficient fee calculation.
6.6.4. Order Refusal. Fabriik may, in its sole discretion, limit or cancel quantities purchased per person, per household or per Order. These restrictions may include Orders placed by or under the same Client’s account, the same credit card, and/or Orders that use the same billing and/or shipping address. Fabriik reserves the right to limit or prohibit orders that, in their sole judgment, appear to be placed by dealers, resellers or distributors.
6.6.5. Site Products & Services. Certain products or services may be available exclusively online through the Online System. These products or services may have limited quantities and are subject to return or exchange only according to their return policies. Fabriik makes every effort to display as accurately as possible the colors and images of the products that are available. Fabriik cannot guarantee that Client’s computer monitor's display of any color will be accurate. Fabriik reserves the right, but are not obligated, to limit the sales of products or Services to any person, geographic region or jurisdiction. Fabriik may exercise this right on a case-by-case basis and reserve the right to limit the quantities or discontinue any products or services that are offered. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of Fabriik. Any offer for any product or service made on this site is void where prohibited.
If Client avails itself of this Service the following terms apply.
7.1. Fabriik provides Client the ability to exchange one type of Digital Asset to another one via Fabriik’s Weave widget.
7.2. When Client exchanges Digital Assets, they acknowledge and agree that the Exchange will be processed through the third party exchange service with additional fees applicable to such Exchange. Client acknowledges and agrees that Fabriik is able to only provide an estimate of these additional fees.
7.3. Fabriik offers Client an exchange rate quote via Fabriik’s Trading API. Once Fabriik receives the funds for Exchange, Fabriik will provide an exchange rate based on the market at that time. Client acknowledges that the exchange rate originally quoted may not be the exchange rate used at the point of the Exchange.
7.4. Client acknowledges that Fabriik cannot guarantee the execution of all Orders. These cases may include, but are not limited to the following:
7.4.1. Where Client sends an amount of Digital Assets different from the amount to be sent that was displayed on the Weave widget.
7.4.2. Where the Client user fails to enter the reference ID into the sending or receiving wallet interface.
7.4.3. Where Client sends Digital Assets to a previously used one-time address that had been generated for the Order.
7.5. Notwithstanding the clause above, where the market allows Fabriik to make the Order, the transaction will be pushed through manually at the quoted rate that was confirmed by Client. If the market situation is such that the Order can no longer be executed, the Digital Assets that Client wants to exchange will be refunded, if possible, less all applicable fees.
7.6. To execute the Order, Fabriik’s system will automatically generate the necessary addresses for the Digital Asset that Client wants to exchange. The Client must provide the address where exchanged Digital Assets will be deposited.
7.6.1. Client acknowledges that the addresses associated with the fixed exchange rate quote are non-reusable and activated for a single transaction only.
7.6.2. Client acknowledges that if they fail to enter the reference ID into the sending or receiving wallet interface, their assets may be lost.
7.7. This Service does not provide any custodial services, which means, Fabriik does not store Client’s Digital Assets on deposits and balances. In the event Client’s Fabriik’s AML/KYC protocol requirements, Client acknowledges that the Order may be delayed. Client agrees to indemnify and hold Fabriik harmless against any claims, demands and damages, whether direct, indirect, consequential, or special, or any other damages of any kind, including, but not limited to, loss of use, loss of profits or loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the Order delay.
7.8. AML & KYC Procedure. Fabriik reserves the right to perform any AML/KYC procedure on Client, Authorised Users, addresses and particular transactions of Digital Assets as may be required by law or at its sole discretion.
8. TRADING API
If Client avails itself of this Service the following terms apply.
8.1. Fabriik may provide Client with online access to Fabriik Markets API for use in connection with the Trading Services.
8.2. Quoting Functionality. Fabriik will upon request, provide quotes to Client for a specific Order.
8.3. Request for Quote. Client may submit, through the Fabriik Markets API an RFQ. Upon receipt of an RFQ, Fabriik may provide to Client, through the Fabriik Markets API, a Static Quote with a QID. Upon receipt of a Static Quote and the accompanying QID, Client may submit to Fabriik, through the Fabriik Markets API, a Static Trade Request; provided, however, that Fabriik may modify or withdraw the Static Quote at any time prior to processing a Static Trade Request from Client. If the Static Quote has not been modified or withdrawn, Fabriik will accept such Static Trade Request through the Fabriik Markets API and a binding Order will be deemed to have been executed at the time of such acceptance on the terms set forth in such Static Quote. If Client does not specify a time window in the RFQ, the execution price associated with the Static Quote and the QID will be based on the market price at such time and include Fabriik’s fee when the Static Trade Request is executed by Fabriik.
8.4. Trade Functionality. Fabriik will purchase or sell a specified quantity of certain Digital Assets to Client, which Client may request be in fiat currency or another Digital Asset.
8.5. Request to Trade. Client may submit, through the Fabriik Markets API, an RTT. Upon receipt of an RTT, Fabriik may provide to Client, through the Fabriik Markets API, a Static Trade accompanied with a TID. The RTT cannot be modified or withdrawn, as such Fabriik will accept the RTT through the Fabriik Markets API and a binding Order will be deemed to have been executed at the time of such acceptance on the terms of the RTT.
8.6. Trade Price. Client acknowledges that Orders will be executed at the price in the Trade Request, which, may differ from the price at which the Digital Assets are trading in other markets or with other counterparties when the Order is completed.
8.7. Executed Orders. If Fabriik accepts Trade Requests through the Fabriik Markets API, the resulting Order will be deemed a completed Order for the purposes of the OTC Terms above.
8.8. Data. With respect to any Static Quote, market data or other data or information that Fabriik provides to Client in connection with Client’s use of the Trading Services, Client agrees that (i) Fabriik is not responsible or liable if any such Static Quote, data or information is inaccurate or incomplete in any respect; (ii) Fabriik is not responsible or liable for any actions that Client takes or does not take based on such Static Quote, data or information; (iii) Client will use such Static Quote, data or information solely for the purposes set forth in this Agreement and in compliance with the applicable law; (iv) such Static Quote, data or information is proprietary to Fabriik or its licensors, and Client will not distribute, retransmit, display or otherwise disclose or make available such Static Quote, market data or other data or information to third parties except as required by applicable law, nor enhance, alter or make derivative works from such Static Quote, market data or other data or information, or combine such Static Quote, market data or other data or information with any other information without the prior written consent of Fabriik. Notwithstanding this Section, Client may share the asset pair along with their quoted price and total amount related to a Static Quote or an Order to third parties without the prior written consent of Fabriik.
8.9. License. Fabriik hereby grants Client, and its Authorised Users, a limited, non-exclusive, revocable, non-transferable and non-sublicensable license to use (and allow its Authorised Users to use) the Fabriik Markets API. Fabriik or its licensors, as the case may be, shall retain all rights, title and interest in and to the Fabriik Markets API, including, without limitation, all source code, object code, data, information, copyrights, trademarks, patents, inventions and trade secrets embodied therein, and all other rights not expressly granted to Client hereunder.
8.10. All Orders shall be subject to any and all restrictions or limitations, direct or indirect, which are imposed by Fabriik’s charter, articles of incorporation or bylaws; any and all applicable federal and state laws and regulations; the rules, regulations, customs and usages of any exchange, market or clearing house where the transaction is executed; Fabriik’s policies and practices; and this Agreement.
8.11. Security & Access. Client may access the Trading Services only through use of one or more passwords, API keys, API secrets, IP Whitelisting security devices or other access methods as provided by Fabriik (collectively, “Secured Access Methods”). Client is solely responsible for ensuring that Client’s Secured Access Methods are known to and used by only Client and their Authorised Users. Client acknowledges that Fabriik, in its sole discretion, may deny access to the Trading Services to any user of Client’s Secured Access Methods. Client will be (i) solely responsible for all acts or omissions of any person using the Trading Services through Client’s Secured Access Methods, (ii) solely responsible for any losses, damages or costs that Client may incur as a result of errors made by, or the failure of, the software or equipment that Client or any Authorised Users use to access the Trading Services, and (iii) without limitation of the foregoing or any other provision of this Agreement, bound by the terms of any and all Orders executed and/or Trade Requests accepted through the Fabriik Markets API using Client’s Secured Access Methods, in each case unless due to Fabriik’s willful misconduct. All transmissions generated by use of Client’s Secured Access Methods will be deemed to be authorised by Client and made by an Authorised User whether or not Fabriik acknowledges receipt of such transmission and Fabriik shall be entitled to rely on such deemed authorization, unless due to Fabriik’s willful misconduct. If any of Client’s Secured Access Methods have been modified, lost, stolen or compromised, Client will promptly notify Fabriik as soon as feasibly possible. Upon receipt of this notice, such Secured Access Methods will be cancelled or suspended as soon as is reasonably practicable, except Client is responsible for any actions taken through the use of such Secured Access Methods prior to such cancellation. In the event of a dispute, Fabriik’s communications and transactions log of all QIDs, Static Quotes, Static Trades, Trade Requests, Orders and communications regarding Orders by Client or its Authorised Users or their Secured Access Methods shall be deemed conclusive evidence of the communications contained therein and will not be contested by Client in any legal proceedings between the Parties.
8.12. Restriction of Trading Services. Fabriik may at any time, in its sole discretion, restrict the number of Authorised Users and impose restrictions, limits or parameters on RFQs, RTTs, and Trade Requests. Fabriik maintains filters to prevent Trade Requests that do not comply with financial, operational and risk control requirements. These pre-trade restrictions, limits and parameters may delay or prevent Trade Requests from being submitted, require Fabriik to not respond to and/or confirm Trade Requests, or result in delays in the execution of Orders. Such restrictions, limits and parameters may be amended, increased, decreased, removed or added by Fabriik in its sole discretion, upon notice to Client, if practicable, and may include without limitation: (i) controls over maximum Trade Request sizes; (ii) controls over Fabriik’s total exposure to Client; (iii) controls over Trade Requests and/or Orders that may indicate duplicative or clearly erroneous Trade Requests and/or Orders; or (iv) any other restrictions, limits, parameters or controls that Fabriik may be required to implement in accordance with applicable regulations or its internal policies and procedures. Client agrees to abide by such restrictions and to be responsible for any Trade Request and/or Order that violates such restrictions or exceeds such limits. Notwithstanding the foregoing, Fabriik shall determine at its sole discretion, whether or not to respond to and/or confirm a Static Trade Request.
8.13. Client may not make the Trading Services available in any form to any person or entity without the prior written consent of Fabriik, except as permitted under this Agreement.
8.14. Availability of Trading Services. The Trading Services may malfunction or become temporarily unavailable due to a computer malfunction or network congestion or some other reason. Fabriik does not guarantee that the Trading Services will be available at all times, and shall not be responsible for any losses, damages or costs incurred or suffered by Client as a result of the unavailability or malfunction of the Trading Services.
8.15. Ability to Terminate. Notwithstanding any other provision within these Terms and Conditions, Fabriik shall have the right to suspend or terminate (at any time, with or without cause or prior notice) all or any part of the Trading Services, or Client’s access thereto, for any reason, including but not limited to, changing the features or functionality of the Trading Services, or changing the limits on the trading Client may conduct through the Trading Services, all without any liability to Client. Client understands it can have no expectation of any use or continued use of the Trading Services.
8.16. Other Activities. Fabriik may engage in trading in the markets reflected through the Trading Services for Fabriik’s proprietary accounts, which could affect the value or terms of Orders and Fabriik may enter into orders at prices different from the prices reflected to Client through the Trading Services.
8.17. Monitoring. Fabriik reserves the right, in its sole discretion, to monitor all uses of the Fabriik Markets API to ensure compliance with this Agreement and the policies and procedures of Fabriik in effect from time to time. Client acknowledges and agrees that Fabriik have the right to monitor, record and investigate all uses of the Fabriik Markets API by Client.
PART 3 – GENERAL TERMS (applicable to all Fabriik Services)
9. DIGITAL ASSET DISCLAIMER
9.1. By using the Services, Client understands that there are substantial risks associated with the purchase, sale and use of Digital Assets through Fabriik, and Client is agreeing to familiarize itself and assume any and all such risks, including:
9.1.1. the funds, Digital Assets or value in Client’s account are not insured in any way by Fabriik or any governmental authority;
9.1.2. the value of the Digital Assets Client acquires through the Services are attached to Client’s Digital Asset wallets that are accessible only with Client’s private key. If Client loses its private key, Client’s Digital Assets will be unrecoverable and Fabriik will not assist Client in recovering Digital Assets from any Digital Asset wallets without Client’s private key;
9.1.3. price and liquidity of Digital Assets has been, and may be, subject to large fluctuations on any given day and Client may lose any and all value in Client’s Digital Assets at any time;
9.1.4. some Digital Asset exchanges have been subject to cyberattacks and other technical issues that have resulted in the loss or theft of Digital Assets to their users and there is a risk that a similar cyberattack could affect the Services and result in the theft or loss of Client’s Digital Assets for which Client cannot recover;
9.1.5. Digital Assets are not part of a central bank that can take corrective measures to protect the value of Digital Assets in a crisis;
9.1.6. changes to applicable law may adversely affect the use, transfer, exchange or value of Client’s Digital Assets and such changes may be sudden and without notice;
9.1.7. Digital Assets are not legal tender and are not backed by a government; and
9.1.8. Digital Assets have value from the continued willingness of market participants to use Digital Assets, thus Digital Assets are susceptible to loss of confidence, which could collapse demand relative to supply and may result in permanent and total loss of value of a particular Digital Asset if the market for such Digital Asset disappears.
10. FEES AND TAXES
10.1. Client understands that Fabriik will charge certain fees for the Services, as set forth in specific detail in Service terms in Part 2 of this Agreement and via a fee schedule made available to Client. Client agrees and acknowledges the relevant fee for the Service before placing an Order. All fees payable under this Agreement are exclusive of any legally applicable value added tax or similar sales or turnover tax in any relevant jurisdiction. Fees are subject to change without notice. The Fees are non-refundable and Fabriik reserves the right to adjust its fees or to institute news fees at any time.
10.2. To the extent that Fabriik does not collect any applicable taxes but it is later determined that taxes were collectible by Fabriik, Client shall pay such applicable taxes to Fabriik upon notice of the applicable taxes. Fabriik is not liable for any taxes that Client is legally obligated to pay, in any jurisdiction, which are incurred or arise in connection with or related to Client’s business activities (under this Agreement or otherwise), and all such taxes will be the financial responsibility of Client. Client understands that Fabriik may be required to disclose Client’s account information to tax authorities in any country or pursuant to a court order at any time.
10.3. Client is also responsible for determining if any income or earnings from a particular investment result in unrelated business taxable income that is subject to unrelated business income tax pursuant to the Regulations.
10.4. Tax Sheltering. Fabriik is not responsible for determining or investigating whether a particular Order or transaction constitutes an abusive tax shelter scheme or transaction. Client acknowledges and understands that a determination regarding whether a prohibited transaction or an abusive tax shelter scheme or transaction has or would occur depends upon the facts and circumstances that surround a particular investment transaction. The parties acknowledge and agree that the responsibility for filing any forms or disclosing any information to the government with respect to any prohibited transactions or abusive tax shelter schemes or transactions resides entirely with Client.
11. ERRORS AND DISCREPANCIES
11.1. Client must promptly review each report or advisory communication regarding Orders or transaction history sent by Fabriik and promptly notify Fabriik of any error, discrepancy, irregularity or unauthorised activity. Client may not assert any claim against Fabriik or its representatives in connection with any errors, discrepancies or irregularities if Client did not exercise reasonable care in examining any such communication which reflected such errors, discrepancies or irregularities, or if Client did not notify Fabriik in writing and in a reasonably prompt manner that Client disputes any information contained in, or missing from, any communication. Client shall provide Fabriik with all information necessary for Fabriik to investigate the error, discrepancy or irregularity.
11.2. If Fabriik makes a payment to Client in error, Client shall be deemed to hold such funds or Digital Assets in trust for Fabriik and return such funds or Digital Assets forthwith to Fabriik upon demand. If Client makes a payment to Fabriik in error, Fabriik shall be deemed to hold such funds or Digital Assets in trust for Client and return such funds or Digital Assets forthwith to Client upon demand.
11.3. Client acknowledges that any technical issues arising from the misuse of the Services, including but not limited to entering a wrong address both when indicating the Recipient address or when sending their Digital Assets to Fabriik, and other types of user mistakes may not be resolved by Fabriik’s technical department.
11.4. Conclusive Evidence. For the avoidance of doubt, Fabriik shall be entitled to rely on its own record of any information or data relating to Client as conclusive evidence of the fact against that Client for all purposes save for manifest error.
12. FABRIIK EXCHANGE ONLINE SYSTEM
12.1. Online System Licence. If Client uses the Fabriik Exchange Online System (the “Online System”) Client agrees to abide by this Agreement. In consideration of Client’s agreement to be so bound, Client shall be granted, for so long as the Agreement remains in effect, a non-exclusive, non- transferable, and non-sublicensable license to use the Online System for the sole purpose of facilitating Client’s use of Services.
12.2. Online System Content. The content on the Online System is provided for general information only. It is not intended to be treated as any advice on which Client should rely. Client must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on the Online System. Although Fabriik makes reasonable efforts to update the information on the Online System, Fabriik makes no representations, warranties or guarantees, whether express or implied, that the content on the Online System is accurate, complete or current.
12.3. User Generated Content. The Online System may include information and materials uploaded by other users of the Site, including use of bulletin boards and chat rooms, as applicable. This information and these materials have not been verified or approved by Fabriik. The views expressed by other users on the Online System do not represent Fabriik’s views or values.
12.4. Uploading Content to Online System: When Client makes a Contribution to the Online System, or to make contact with other users of the Online System, Client must comply with the content standards set out below:
12.4.1. A Contribution must: (i) be accurate (where it states facts); (ii) be genuinely held (where it states opinions); and (iii) comply with the laws applicable in any country from which it is posted.
12.4.2. A Contribution must not:
188.8.131.52. be defamatory of any person;
184.108.40.206. be deceiving, obscene, offensive, hateful or inflammatory;
220.127.116.11. promote sexually explicit material, violence, illegal activity, and/or discrimination;
18.104.22.168. infringe any copyright, database right or trade mark of any other person;
22.214.171.124. breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
126.96.36.199. be in contempt of court;
188.8.131.52. be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
184.108.40.206. be likely to harass, upset, embarrass, alarm or annoy any other person;
220.127.116.11. impersonate any person, or misrepresent your identity or affiliation with any person;
18.104.22.168. give the impression that the Contribution emanates from Fabriik, if this is not the case;
22.214.171.124. advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse;
126.96.36.199. contain a statement which you know or believe, or have reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; or
188.8.131.52. contain any advertising or promote any services or web links to other sites.
12.5. Client warrants that any Contribution made shall comply with the above listed standards and acknowledges that Client will be liable to Fabriik and indemnify Fabriik for any breach of this warranty. This means Client will be responsible for any loss or damage Fabriik suffers as a result of Client’s breach of warranty.
12.6. Any Contribution to the Online System will be considered non-confidential and non-proprietary. Client retains all ownership rights in the content but grants to Fabriik (and other users of the Online System) a limited license to use, store and copy that content and to distribute and make it available to third parties. Fabriik also has the right to remove any Contribution Client makes on the Online System at their sole discretion.
12.7. Client agrees that the Online System is and shall remain the exclusive property of Fabriik. Accordingly, Client represents, warrants and covenants that it shall not:
184.108.40.206. distribute or disclose the Online System, or any component of it, to, or permit use of the Online System by, any third party;
220.127.116.11. decompile, disassemble, reverse engineer, or otherwise attempt to derive or discern the source code or internal workings of the Online System except to the extent that any reduction of software in the Online System to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Online System with the operation of other software or systems used by Client;
18.104.22.168. use the Online System for any purpose that is illegal or prohibited under the Agreement;
22.214.171.124. use any automated means or interface to access the Services or extract other users’ information;
126.96.36.199. use the Online System to communicate with other users or for any commercial purpose;
188.8.131.52. use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from using the Services, or that could damage, disable, overburden, or impair the functioning of the Services;
184.108.40.206. use or attempt to use another user’s Online System Access Method without their permission;
220.127.116.11. upload viruses or other malicious code that otherwise compromises the security of the Services;
18.104.22.168. attempt to circumvent any content-filtering techniques Fabriik uses, or attempt to access areas or features of the Services that Client is not authorised to access;
22.214.171.124.establish a link to the Online System that suggests in any way any form of association or Fabriik’s approval or endorsement;
126.96.36.199.probe, scan, or test the vulnerability of the Services, or any related system or network; or
188.8.131.52.encourage or promote any activity that violates the Agreement.
12.8. Fabriik shall indemnify and hold Client harmless of any damages and costs awarded by a court of competent jurisdiction against Client, which relate directly to a finding by such court that Client’s use of the Online System in accordance with the Agreement infringed any copyright, patent, trade secret or other intellectual property right of a third party; provided, however, Client must agree to allow Fabriik, to the extent it chooses, to defend and direct all activities relating to the defense and/or settlement of any such third party claim. Client must provide Fabriik with prompt notice of any actual or potential third party claim.
13. ONLINE SYSTEM SECURITY
13.1. Use of Online System. In order to use the Online System, Client will be required to create an electronic account. Client may have full or limited access to the Online System, in Fabriik’s sole discretion. If Client wishes Fabriik to terminate access to the Online System, Client agrees to issue such request in writing, to be confirmed by Fabriik in writing. Without limiting this Section, until such time as Fabriik’s confirms Client’s access has been terminated, Client will remain responsible for any Orders placed and other activity using the Online System.
13.2. Access. Fabriik will provide Client with a username and temporary password to access the Online System. It is the sole responsibility of Client to safeguard the security of its password, and Client agrees that it will change the temporary password to a unique password promptly upon issuance, and periodically change the password thereafter to ensure security. Client expressly acknowledges and agrees that such use is made in accordance with this Agreement and any additional user agreement or manual provided by Fabriik, including maintaining any minimum operating and Internet browser requirements. Fabriik may suspend, limit or terminate a Client’s access to the Online System, without notice, at any time to (i) reflect changes in law, (ii) meet new regulatory requirements, (iii) perform essential technological or security upgrades or (iv) where Client breaches the obligations set out in this Agreement or as a result of Client's wrongful or improper use of the Services.
13.3. Client’s Responsibility for Use of Online System. Client is solely responsible for all activity on Client’s electronic account, and each agrees to notify Fabriik immediately upon becoming aware of any unauthorised use of Client’s electronic account. Fabriik's responsibility for any losses incurred by reason of any use, whether authorised or unauthorised will be limited as set out in Section 21, and Client agrees to repay Fabriik in respect of any losses, charges or expenses Fabriik may incur as a direct result of the use of Client’s electronic account. Client must take all reasonable steps to keep any personalised security features utilised in connection with keeping their account safe. Nothing in this clause shall limit Fabriik’s liability in accordance with Section 21.
13.4. Electronic Communications from Fabriik. Client acknowledges and agrees that the Online System may include certain communications from Fabriik or its partners, such as service announcements and administrative messages, and that these communications are considered part of the Online System and Client may not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the Services, including any new service, shall be subject to the Agreement.
13.5. Online System Provided “As Is”. The Online System, and all other related Services, are provided “as is” with no representations, warranties or conditions of any kind, either express or implied. Fabriik shall have no responsibility for transmission errors occurring outside the scope of the proprietary Online System, nor for faulty or unreliable Internet connections or website downtime. All disclaimers, limitation of liability and indemnity terms set forth in the Agreement shall apply fully to Client’s use of the Online System, as well as any other means of accessing such Services.
13.6. Multi-Factor Authentication (“MFA”) Service. Fabriik may utilise an MFA service to safeguard Client access to the Online System. The MFA service will require Client to provide certain contact information to Fabriik. Client authorises Fabriik to transmit a unique authentication identifier to the contact information provided by Client. Client shall be solely responsible for any third party fees incurred by Client, including, but not limited to those assessed by telecommunication service providers, as a result of use of the MFA service.
13.7. Security of the Online System Access Method. The confidentiality and security of the Online System Access Methods will at all times be the sole responsibility of Client. Client hereby acknowledges that:
13.7.1. Client agrees that there are inherent risks of using online financial services such as the Online System if the security of the Online System Access Methods are not strictly maintained.
13.7.2. Client shall make reasonable efforts to:
184.108.40.206.take appropriate security measures to protect their devices and computer systems;
220.127.116.11.protect the Online System Access Methods, personal details and other confidential data;
18.104.22.168.use unique Online System Access Methods for different websites, applications or services. Online System Access Methods should not be based on common or typical passwords or password routines, and/or personal information; and
22.214.171.124.implement security protocols and policies, and install or acquire security products and protections including up- to-date anti-virus, anti-spyware, firewall software and operating systems on devices and computers, removal of file and print sharing options, regular and frequent back up of critical data; encryption technology, terminating online sessions when complete, clearance of browser cache after each log in; prohibition on software and programs of unknown origin; prohibition on using websites that have not been reviewed for security and veracity, and prohibition on use a computer or a device which is not owned or authorised for use by Client or which is on a public network to access the Online System.
13.7.3. Changes. Fabriik may modify, or discontinue, the Online System at any time or change its domain. Fabriik shall use reasonable endeavours to give Client reasonable notice of any such modification or discontinuance
14. INTELLECTUAL PROPERTY
14.1. Intellectual Property Rights. All copyright, trademarks, service marks, trade secrets, registered and unregistered design rights and all other intellectual property and other rights in and to the Fabriik Intellectual Property, shall remain at all times the sole and exclusive property of Fabriik and, where applicable, its licensors. Client shall have no right or interest in Fabriik Intellectual Property or other rights, except the right to access and use the Service as provided for in the Agreement. All rights not expressly granted to Client are reserved by Fabriik.
14.2. Client shall not use the Fabriik name for any purpose without the prior written consent of Fabriik, including but not limited to, in any advertisement, publication or offering material.
14.3. Feedback. In the event Client uploads or shares any feedback, suggestion, idea or other information or material with Fabriik, Client automatically grants Fabriik an unlimited and unrestricted worldwide license to use this content without any cost. This content shall become part of the public domain so long as it remains on Fabriik’s Online System and Services. Client agrees that this content can be used by Fabriik for marketing or any other purposes at Fabriik’s sole discretion.
14.4. Client will immediately report any apparent malfunction or breach of security of which Client becomes aware or experiences with the Services.
15. THIRD PARTY CONTENT AND SERVICES
15.1. Client may be charged fees by the third party service provider. Fabriik is not responsible for any third party service fees. Client is solely responsible for their use of the third party service, and agrees to comply with all terms and conditions applicable to any third party service.
15.2. While using Fabriik’s Services, Client may view Third Party Content. Fabriik does not control, endorse, or adopt (unless otherwise expressly stated by Fabriik) any Third Party Content and shall have no responsibility for Third Party Content, including without limitation material that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable. In addition, Client’s business dealings or correspondence with such third parties is solely between Client and the third parties. Fabriik is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and Client understands that their use of Third Party Content, and interactions with third parties, is at their own risk.
16. FORCE MAJEURE
16.1. Force Majeure. In the event that Fabriik or its representatives are unable to provide the Services due to abnormal and unforeseeable circumstances beyond Fabriik’s or its representatives’ control the consequence of which would have been unavoidable despite all efforts to the contrary, including but not limited to government acts, wars, acts of terrorism, cybercrimes, strikes, riots, other civil disturbances, legal process, health epidemic or pandemic, electronic failure or mechanical failure, Fabriik and its representatives shall have no liability for direct, indirect, special, incidental or consequential damages, including, but not limited to, loss of profits or expenses, arising in connection with any Order entered into with Client pursuant to the Agreement, any CFD or any Confirmation.
17. TERM, SUSPENSION AND TERMINATION
17.1. Client may terminate the Agreement at any time without notice and subject to the Regulations.
17.2. Fabriik may terminate the Agreement upon the occurrence of a Termination Event. In all other circumstances, Fabriik may terminate this Agreement with 30 days’ notice to Client.
17.3. This Agreement has no fixed term.
17.4. In the event of termination, all debts and obligations that Client owes Fabriik shall become immediately due and payable. Client agrees that Fabriik may take any action it is entitled to take under the Agreement or under applicable law, including to set-off the whole or any part of any amount owing to Client against any or all amounts payable by Client to Fabriik.
17.5. In the event of termination, all obligations and rights of a continuing nature shall survive termination of the Agreement.
18. REPRESENTATIONS AND WARRANTIES
18.1. Client represents, warrants and covenants that:
18.1.1. All statements contained in the Agreement, and any other information contained in documentation submitted in support of the Agreement, are true and correct and that Client will notify Fabriik immediately if any of such information is no longer true.
18.1.2. If Client is a non-individual, Client (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has all necessary power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the Orders contemplated.
18.1.3. Client is not subject to any financial sanctions, embargoes or other restrictive measures imposed by any governmental authority in any jurisdiction in which the Services are available.
18.1.4. They are NOT in, under the control of, or a national or resident of any Restricted Locations or a national or resident of Canada, or the State of New York (US). Fabriik does not operate in Restricted Locations. Fabriik maintains the right to select the markets and jurisdictions to operate in and may restrict or deny its Services to certain countries at any time.
18.1.5. That they are at least 18 years old or of other legal age, according to Client’s relevant jurisdiction.
18.1.6. Client is responsible for ensuring the accuracy and completeness of instructions in respect of each and every Order
18.1.7. Client has initiated each Order solely based on its analysis and/or third party advice and has not received or relied upon any advice from Fabriik with respect to the suitability or appropriateness of such Order for Client.
18.1.8. Client shall maintain security systems, procedures and controls to prevent and detect the theft of funds; forged, fraudulent and unauthorised instructions and electronic transfer of funds by anyone who is not Client; losses due to fraud or unauthorised access to the Services by anyone who is not Client.
18.1.9. Client shall make its own arrangements to provide the equipment and software it needs to meet its desired levels of service, security and reliability. Equipment includes computer systems and telecommunication devices. All purchase, installation and maintenance costs will be at Client’s expense. Fabriik may, if it chooses, specify security procedures for a Service, which Client must follow.
18.1.10. Client shall keep any keys, access codes, security devices and verification procedures safe and confidential, and change them at least as often as the Services terms specify.
18.2. Limitation on Services.
18.2.1. Client confirms that all Orders will be placed pursuant to and in accordance with the Agreement.
18.2.2. Client agrees not to:
126.96.36.199. use the Services to make payments for any illegal purpose;
188.8.131.52. use any robot, spider, crawler, scraper or other automated means or interface not provided by Fabriik to access the Services or to extract data;
184.108.40.206. attempt to circumvent any content filtering techniques Fabriik employs, or attempt to access any service or area of our Services that you are not authorised to access;
220.127.116.11. develop any third party applications that interact with Fabriik’s Services without prior written consent; and
18.104.22.168. encourage or induce any third party to engage in any of the activities prohibited under this Section.
18.2.3. Client acknowledges that any Order accepted by Fabriik will be binding upon and enforceable against Client and does not violate the terms of any other agreement to which Client is bound.
18.3. Consent to Credit Check. Client authorises Fabriik to take all commercially-reasonable measures to confirm correctness of Client information and to assess Client’s ability to meet its obligations to Fabriik. Reasonable measures include but are not limited to periodically requesting and obtaining Client credit and financial information, from credit bureaux and other sources of such information as may be relevant to assess Client’s credit risk and creditworthiness.
19. LEGAL AND REGULATORY COMPLIANCE
19.1. Order Processing. Client understands, acknowledges and agrees that all Orders, wherever originated, may be processed by Fabriik, an entity of which may be located outside the country of Client. As such, all Orders, wherever originated, will be processed in accordance with the laws and regulations of the jurisdiction where the transaction is being processed, including but not limited to, those laws and regulations relating to anti-money laundering, anti-terrorism financing and foreign asset control.
19.2. Freezing or Blocking Transactions. In certain circumstances, Fabriik may be obliged to freeze or block an Order to comply with applicable laws. Freezing or blocking can arise for a number of reasons, including as a result of the account monitoring that Fabriik conducts as required by relevant laws or where the name of a sender or Recipient of an Order matches a name on a relevant government list of prohibited persons or where the Order is being sent to a country that has been subjected to relevant government asset control or sanctions. If this occurs, Fabriik and its representatives are not liable to Client for any resulting Losses whatsoever and Client agrees to indemnify Fabriik and its representatives to the extent that Fabriik and its representatives incur any Losses in connection with the freezing or blocking of Client’s account.
19.3. Refusal or Delay of Services. Fabriik may refuse or delay the provision of Services, at its sole discretion, if Fabriik reasonably determines that doing so is necessary to avoid or mitigate Losses to Fabriik; to comply with Fabriik policies; to adhere to laws or regulations; if an Order is not or does not appear to be related to Client’s stated purpose of its use of Services, or to reduce risk to Fabriik. This includes, but is not limited to, events where Fabriik reasonably suspects that the Service is being used or accessed to perpetrate financial fraud or exploitation, even if Client has authorised the Service.
19.4. Disclosure. Client understands that Fabriik takes measures to ensure that it is not participating or assisting in money laundering or terrorist financing. Client agrees that Fabriik, in its sole discretion, may disclose any Order related information including but not limited to confidential information of Client or information about a Recipient in order to satisfy Fabriik’s legal obligations under applicable law, including, but not limited to, anti- money laundering, trade and economic sanctions laws and/or regulations, or as may otherwise be required by law or court order. Furthermore, such disclosure may be made to any governmental agency, body or department that exercises regulatory or supervisory authority with respect to Fabriik’s operations, where such disclosure is made to satisfy governmental audit or examination requirements or as part of information required to be submitted to such governmental entities in the ordinary course of business.
19.5. Additional Information. Upon request, Client agrees to provide any additional information that Fabriik may need, including with respect to Client, third party payers or payees to satisfy its ongoing legal and regulatory obligations. Failure or delay in providing additional information may result in a delay or failure to provide Services. In addition, Client authorises Fabriik to make any inquiries it may deem necessary or appropriate in accordance with applicable law, including, without limitation, inquiries into Client’s solvency or credit history, to assess Client’s suitability for a business relationship with Fabriik as well as ongoing maintenance of that relationship.
19.6. No offer of Securities: Fabriik takes all possible measures to integrate and exchange Digital Assets and other types of digital mediums of exchange only that cannot be classified as a security by the competent national authorities. The responsibility for the fact that the Digital Asset cannot be treated as a security lies with the owner of the Digital Asset. Fabriik reserves the right at its sole discretion to prohibit and discontinue any Order where Fabriik has knowledge of any risk or speculation that such Digital Asset would be treated as a security by the relevant national authorities. Fabriik refers to industry best practices in determining whether Digital Assets are treated as a security or not. For the avoidance of any doubt, the provisions of this clause shall not constitute or be deemed or construed to constitute any form of warranty and/or investment, financial, legal or any other professional advice, that a Digital Asset made available through Fabriik’s Services is not a security.
20. USE OF INFORMATION, PRIVACY AND DISCLOSURE
20.2. Fabriik may transfer personal data to affiliates in countries other than the country in which the information was originally collected or created.
20.3. Client shall indemnify Fabriik and its representatives and hold Fabriik and its representatives harmless from and against any and all Losses resulting from Fabriik’s non-compliance with applicable privacy and data governance laws which are a direct consequence of the actions or omissions of Client.
20.4. Without limiting the foregoing, Fabriik shall not be liable for any losses or damages incurred as a result of any information submitted to it through this website or any contact e-mail thereof or for its transmission of information to any person or entity as a result of a request for such transmission reasonably.
20.5. Disclosure. Client agrees to never share the details of their Order, including, but not limited to, where applicable, their Fabriik ID, the transaction hash, Recipient address and/or e-mail related to a Fabriik account, with anyone except Fabriik representatives. Fabriik will not request specific information about authorised user accounts, transactions or other personally identifiable data from Client unless: (i) the information is requested to help complete an Order initiated by Client; (ii)the information is requested to efficiently process your enquiry; or (iii) it is legally required e.g., in connection with Fabriik’s AML/KYC procedure.
20.6. New Products and Services. Under a valid consent, Fabriik may contact Client, by telephone, mail, or other means, with information about the products and services available which Fabriik believes may be of interest to Client.
21. LIMITATION OF LIABILITY; INDEMNITY
21.1. Nothing in this Agreement shall limit or exclude a Client’s statutory rights.
21.2. Fabriik will have no liability to Client for any loss of profit, loss of business, business interruption, or loss of business opportunity in each case whether direct or indirect.
21.3. Fabriik strives to protect Client and its Authorised Users from fraudulent and scam activities in the sphere of Digital Assets. It is possible, that some Digital Assets are purposed for unlawful seizure of the property, or are construed as a fraud, scam, or any other activity, recognized by the laws as illegal and/or non-compliant with legal requirements. Fabriik cooperates with law enforcement agencies and other competent authorities to determine and disclose such Digital Assets. Fabriik reserves the right to prohibit and discontinue any of their Services with such Digital Asset at Fabriik’s sole discretion, without any prior notice to Client and without publication of the reason for such decision, whenever this comes to Fabriik’s knowledge.
21.4. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL FABRIIK AND ITS REPRESENTATIVES BE LIABLE TO CLIENT OR TO ANY OTHER PARTY FOR LOST REVENUE, PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, EVEN IF FABRIIK OR ITS REPRESENTATIVES HAVE BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE AS A RESULT OF OR ARISING OUT OF THE RELATIONSHIP BETWEEN THE PARTIES OR IN ANY WAY CONNECTED TO THE AGREEMENT. THE PARTIES AGREE THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, WITHOUT WHICH FABRIIK WOULD NOT HAVE ENTERED INTO THE AGREEMENT. THE LIMITATIONS OF LIABILITY STATED IN THE AGREEMENT SHALL HAVE EFFECT TO THE EXTENT PERMITTED BY APPLICABLE LAW.
21.5. Fabriik’s Liability. Without prejudice to the above, if Fabriik fails to comply with these terms, it is responsible for loss or damage Client suffers that is a foreseeable result of breach by Fabriik of this Agreement or failure to use reasonable care and skill. Fabriik and its representatives are not responsible for any loss or damage that is not foreseeable. Fabriik does not exclude or limit in any way its liability where it would be unlawful to do so. This includes liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; or for breach of a Client's legal rights in relation to this Agreement.
21.6. Indemnity. Client will repay Fabriik and its representatives any and all claims, losses and expenses that arises directly out of: (i) any actual or alleged breach of Client’s representations, warranties, or obligations set forth in this Agreement; (ii) Client’s wrongful or improper use of the Services; (iii) Client’s violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) Client’s violation of any law, rule or regulation of any country; and (iv) a breach by Client of Section 12 and 13 which results in any other party’s use of the Services or access to the Online System through any Client’s Online System Access Method. This clause will survive the termination of this Agreement.
22. COMMUNICATION AND NOTICES
22.1. Email Address. Client will designate one email address as having authority to accept Orders and confirm Orders. Client shall be responsible to ensure the email account is secure and under the sole control of Client or its Authorised User. Fabriik shall be entitled to rely on communication from Client’s designated email account and shall bear no liability whatsoever for acting on instructions verified from such designated account.
22.2. Client agrees that Fabriik may communicate with and give notice to Client in writing, by facsimile and electronically, via electronic mail to Client. All such communications will be considered to have been provided in accordance with the terms of the Agreement. Client agrees that it is Client’s responsibility to access all such communications.
22.3. All communications sent by regular mail will be deemed received five (5) clear Business Days after the date of the mailing. All communications sent by personal delivery will be deemed received on the day of actual delivery, if a Business Day, and if not a Business Day, on the next Business Day after the day of actual delivery. Facsimile communications will be deemed to have been received on the day of transmission if a Business Day, and if not a Business Day, on the next Business Day after the day of transmission. All electronic communications will be deemed to be received on the day the electronic communication is sent, if a Business Day, and if not a Business Day, on the next Business Day after the date on which the electronic communication is sent.
22.4. Client must inform Fabriik immediately in writing of any change of: address, delivery information, Client financial institution or designated account(s) or its bank/financial institution from which Fabriik has been granted the authority to initiate electronic debits. Any changes directed by a notice will be taken into effect by Fabriik within five (5) days after Fabriik’s receipt of such notice. If Client has failed to inform Fabriik of any change in address or contact information in accordance with this clause or has otherwise provided incorrect address or contact information and Fabriik is unable to deliver any communications due to such failure or the provision of incorrect address or contact information, Client is in breach of this Agreement and Fabriik will have no further obligation to seek out correct contact information to continue to attempt to deliver. Fabriik is not responsible for Client’s failure to receive any communication if sent in accordance with contact information as provided by Client.
22.5. If Client uses electronic mail to initiate Orders or otherwise communicate with Fabriik, Client agrees to bear the risk that such electronic mail may be corrupted, modified, incomplete, hacked, compromised or be undelivered with or without notice to the sender or receiver. Client agrees to bear the risk of these events and agrees to hold Fabriik harmless from acting or failing to act on any and all electronic communications purporting to be sent by Client.
23. DISPUTE RESOLUTION
23.1. The Parties will use their best efforts to resolve any disputes arising hereunder without formal litigation. If a dispute arises out of, or in connection with, this Agreement or the performance, validity or enforceability of it and the Parties do not resolve some or all of the dispute through normal internal discussions, then the Parties shall follow the procedure set out in this clause:
23.1.1. At first instance, the matter in dispute will be escalated to the most senior officer within each Party; and
23.1.2. At second instance, if the Parties do not resolve some or all of the issues in dispute within thirty (30) calendar days after the first day that the matter has been escalated at first instance, then the Parties agree to attempt to resolve the dispute through mediation, in accordance with the Terms of Mediation set out in this Agreement.
23.2. The Parties agree that the representatives selected to participate at all instances in the dispute resolution process will have the authority required to settle the dispute, whether by virtue of the authority of their office, or by virtue of delegated authority.
23.3. Any discussions between the Parties at the first and second instances shall be regarded as “without prejudice” for the purpose of settlement negotiations and shall be treated as confidential by the Parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the negotiations.
23.4. No Party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated, or the other Party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
23.5. The Parties agree that this Section shall not prevent Fabriik from seeking payment for unsettled Orders. Should recovery not be successful, the parties shall subsequently attorn to the process set out in the following Section, Terms of Mediation.
24. TERMS OF MEDIATION
24.1.1. If a dispute arises and the Parties do not resolve some or all of that dispute through first instance and second instance negotiations, as set out above, then the Parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. To initiate the mediation either Party may promptly submit to the other Party a notice of intent to mediate. A copy of the notice should be sent to CEDR.
24.1.2. This notice shall be in writing and shall specify the issues in dispute.
24.1.3. The general notice provisions of this Agreement apply equally to the documents referred to in this Section.
24.2. Selection of Mediator. The mediator can be chosen by joint agreement of the Parties, or if unable to agree within fourteen (14) calendar days of the date of delivery of the notice of intent to mediate, or if the Parties agree, by the CEDR.
24.3. Schedule. The Parties shall jointly select a date for the mediation that is no later than ninety (90) calendar days from the date of the notice of intent to mediate.
24.4. Location. The mediation shall be held in London, England, or such other location as the Parties agree.
24.5. Exchange of information. The Parties agree to an exchange of all information upon which they intend to rely in any oral or written presentation during the mediation. This exchange shall be complete no later than fourteen (14) calendar days prior to the date set for the mediation.
24.6. Costs. The Parties agree that they will each be responsible for their own costs of mediation, including travel. Fees and expenses of the mediator and all administrative costs of the mediation, if any, shall be shared equally by the Parties.
24.7. Confidentiality. Any discussions between the Parties during the mediation shall be regarded as “without prejudice” for the purpose of settlement negotiations and shall be treated as confidential by the Parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the mediation.
24.8. The mediator is free to caucus with the Parties individually, as the mediator sees fit to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one Party during such caucusing may only be disclosed to the other Party with the former Party’s express permission.
24.9. Prohibition against Future Assistance. It is agreed that the mediator will neither represent nor testify on behalf of any of the Parties in any subsequent legal or administrative proceeding between the Parties or where they are opposed in interest. It is further agreed that the personal notes and written opinions of the mediator made in relation to this mediation are confidential and may not be used in any subsequent proceeding between the Parties.
24.10. Termination. The mediation may be terminated by any means described in the CEDR Model Mediation Procedure.
24.11. Mediator’s Report. If no agreement is reached, or is reached on some issues only, the mediator shall promptly provide a report to the Parties stating that no agreement was reached on some or all of the outstanding issues.
24.12. Other Proceedings. No Party may commence any court proceedings in relation to any Dispute arising out of this Agreement until it has attempted to settle the Dispute by mediation and either the mediation has terminated, or the other Party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
25. GENERAL TERMS AND CONDITIONS.
24.1. Third Parties. The Agreement is not intended to, and shall not, confer upon anyone other than the Parties and their lawful successors nor assigns any legal or equitable rights, benefits, claims or remedies of any nature.
24.2. No Waiver. Fabriik’s failure to exercise any of its rights under the Agreement shall not be deemed a waiver of such rights or remedies at a later time.
24.3. Severability. If any provision of this Agreement shall be held to be unenforceable by a court of competent jurisdiction, the remainder of the provisions shall remain in effect and shall be binding upon the Parties.
24.4. Governing Law; Jurisdiction. This Agreement shall be construed and interpreted in accordance with the laws of England and Wales. Each Party agrees that the Courts of England and Wales have jurisdiction over the subject matter of the Agreement. The Parties agree that London, United Kingdom is a convenient forum to bring any action.
24.5. Assignment. Client shall not assign the Agreement nor any rights or obligations hereunder without Fabriik’s written consent. If Fabriik provides its written consent to any assignment of the Agreement, the Agreement shall be binding upon the successors, heirs, and assigns of Client. Fabriik shall be permitted to consolidate or amalgamate with, or merge with or into, any other institution and any reference in this Agreement to Fabriik shall be construed as a reference to the successor entity. Client’s obligations in respect of any account will not be affected by any takeover, absorption or merger by or of Fabriik, nor will it be in any way affected by any change in the name or constitution of Fabriik or any successor, assignee or transferee.
24.6. Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written. The terms of this Agreement may not be changed, modified or supplemented except by an instrument in writing agreed upon by both Parties.
24.7. Changes to Agreement. Fabriik reserves the right, in its sole discretion to change, amend, or otherwise modify this Agreement at any time upon written notice to Client. Any changes, amendments or modifications so conveyed to Client shall be effective from the date such change, amendment or modification goes into effect, unless otherwise stated.