21       Market Makers

21.1 We may engage one or more market makers, who may also be affiliated with us, to act as liquidity providers on the Platform.  You understand and agree that such market makers may be entitled to terms or rates that are more favourable than the terms or rates that you may receive.

 

22       Right of set-off, netting and lien

22.1 General Lien:  Subject to the Applicable Laws, until all liabilities or obligations owed to Spark or other Group Companies have been paid, satisfied or discharged in full, Spark is entitled to retain or withhold, by way of lien, any or all of the User’s assets (including Virtual Assets, Fiat Currencies and/or other property) that are in or comes into Spark’s or the Associated Entity’s possession or control.  Spark is entitled to sell, liquidate or realise any such assets and apply the proceeds of sale, after deduction of any costs or expenses, to satisfy or discharge such obligations or liabilities.

 

22.2 Net-off:  Where Spark has any payment or delivery obligations in the same Fiat Currency or the same type of Virtual Assets in respect of two or more Trades, Spark may elect for such Fiat Currency to be paid or such Virtual Assets to be delivered on a net basis so that such obligations will be satisfied and discharged.  If, in respect of the same Fiat Currency or the same Virtual Assets, the aggregate amount that would otherwise have been payable by one party exceeds the aggregate amount that would otherwise have been payable by the other party, such payment and delivery obligations will be replaced by an obligation on the party by which the larger aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

 

22.3 Set-off:  Notwithstanding Clause 15.2(a), Spark may at any time, without notice to or consent from the User, set off any obligation or liability due from the User to Spark and/or a Group Company against any obligation or liability owed by Spark and/or a Group Company to the User, regardless of whether such obligation or liability has matured or is contingent and irrespective of the currency, asset or place of payment.  Any amounts that are so set off will be discharged promptly.  If, after such set-off, a balance of account is due and payable by the User to Spark and/or a Group Company:

1. the User authorises Spark (for itself and on behalf of the Group Company) to: (i) sell, liquidate or realise or apply or appropriate all or any of the Fiat Currencies and/or Virtual Assets held in the Account to meet such amount; and
2. where there is a deficiency following the application of any set-off pursuant to the above clause, the User shall, on demand, pay to Spark or the Group Company an amount equal to such deficiency.

 

22.4       Payment in another Fiat Currency or Virtual Asset: 

1. The User waives any right it may have to pay any amount under these Terms in a Fiat Currency or a type of Virtual Asset other than that in which it is expressed to be payable.
2. If Spark receives any Fiat Currency or Virtual Asset other than that in which it is expressed to be payable:

1. 1. Spark may return such Fiat Currency or Virtual Asset and demand the User to make payment in the Fiat Currency or Virtual Asset as requested by Spark.  The User shall be liable for any cost, loss or liability incurred by Spark arising from the return of such currency or asset to the User; or
   2. Spark may convert the amount due on a date and at a rate which it reasonably considers to be appropriate.  If, as a result of or in connection with such conversion, Spark incurs a cost, loss or liability, the User agrees to indemnify Spark against such cost, lost or liability.

3. If the Applicable Laws restricts the availability or transfer of any type of Fiat Currency or Virtual Asset or prohibits Spark from paying in a particular Fiat Currency or Virtual Asset, Spark may satisfy its payment obligation to you by paying in another type of Fiat Currency or Virtual Asset.
4. If a judgment, order, or proof of debt for or the recovery of an amount in connection with these Terms is expressed in a Fiat Currency or a type of Virtual Asset other than that in which it is expressed to be payable, the User agrees to indemnify Spark on demand against:

1. 1. any difference arising from converting the Fiat Currency or Virtual Asset, if the rate of exchange Spark would otherwise use under these Terms when it receives a payment in the other Fiat Currency or Virtual Asset is less favourable to Spark than the rate of exchange used for the purpose of the judgment, order, or acceptance of proof of debt; and
   2. any costs, loss or liability incurred by Spark as a result of or in connection with the conversion.

 

22.5 Condition precedents to receiving payment from Spark:  Spark’s obligation to make a payment or delivery, or to perform an obligation under these Terms, is subject to the condition that:

1. Spark is satisfied that the User has satisfied its corresponding obligations in accordance with these Terms;
2. such actions will not cause Spark to breach any Applicable Laws or its internal policies;
3. Spark has received satisfactory evidence from the User in relation to any matter or state of affairs that Spark may reasonably require evidence of; and
4. No event of Default has occurred or is continuing.

 

23       Indemnification and Limitation of Liability

Indemnification

23.1 To the maximum extent permitted by the Applicable Laws, you agree to indemnify us, our Group Companies and each of our respective officers, directors, shareholders, employees and agents (collectively, the “Indemnified Parties”) against any and all losses, liabilities, expenses or costs, which may be suffered or incurred by us and/or any of them, whether directly or indirectly, resulting from or in connection with:

1. your or the Authorised Individual’s use, misuse, or inability to use the Platform, the Account, the Services or any Third-Party Content available on the Platform; or
2. any breach by you of these Terms (including the occurrence of any Event of Default) or the Third-Party Services Provider Terms, including any such terms that are expressly incorporated into and form a part of these Terms; or
3. any Service performed or action performed pursuant to these Terms,

unless caused by the gross negligence, fraud or wilful default of any of the Indemnified Parties, and only to the extent of direct and reasonably foreseeable Loss arising directly therefrom.

 

23.2 Without limiting the generality of Clause 23.1 and subject to the limitation specified in that clause, the indemnity in Clause 23.1 shall extend to the following circumstances:

1. Spark acting on and/or relying on any instructions given or purportedly given by you or any Authorised Individuals, unless Spark has actual knowledge of any fraud or forgery;
2. Spark delaying or refusing to act on any instructions or Orders given by you or an Authorised Individual;
3. Spark exercising its rights and powers conferred by the Terms, including taking action against you or an Authorised Individual;
4. the settlement of, or any failure to settle, any Trades, in circumstances where we are not in breach of the Terms;
5. any action taken by a third party to gain control of any Fiat Currencies or Virtual Assets contemplated by these Terms;
6. any breach by you of any limits or controls imposed by us under Clause 12;
7. any claim or action by an Authorized Individual;
8. any defect in ownership or title of any Virtual Assets and/or Fiat Currencies purchased, sold, held or otherwise dealt with by us on your behalf;
9. any service provided by a third-party provider;
10. any Tax payable by an Indemnified Party on, or calculated by reference to, any Trade or any amount paid or payable by or to you under these Terms (save for any Tax payable by an Indemnified Party by reference its profits);
11. all costs and expenses which Spark may reasonably incur in employing debt collection agent(s) and enforcing our rights under these Terms; or
12. the costs of an Indemnified Party in defending itself against any claims of fraud, negligence or wilful default.

 

23.3 Upon our request in writing, you must: (a) appear and defend, at your own expense, any claim or suit which may be brought against us or any Indemnified Parties in connection with these Terms; and (b) cooperate in the defence of such claim or suit (including signing any document reasonably required by us to give further effect to this Clause 23).

 

23.4 We reserve the right, in our sole and absolute discretion to, when defending against such claim, choose our own legal counsel and control any action or proceeding, or to determine whether we wish to settle such claim, and if so, on what terms.

 

Limitation of Liability

23.5 To the maximum extent permitted by the Applicable Laws, you agree that we, including the Indemnified Parties, shall not be liable to you for any Losses which you may incur or suffer arising from or in connection with the following:

1. your or an Authorised Individual’s use or misuse of, or inability to use, the Platform, the Account, the Services or any Third-Party Content available on the Platform;
2. the availability or unavailability of all or any part of the Platform, the Account or the Services from time to time (whether due to scheduled maintenance or repairs of our systems or otherwise);
3. our provision of the Services and any actions taken by us pursuant to these Terms;
4. any instructions given by or purportedly given by you or an Authorised Individual;
5. any delay, failure or refusal on our part to act on any instructions or Orders given by you or an Authorised Individual (including any request to modify or cancel an Order or instruction);
6. our exercise of any right or remedy or performance of any obligations under these Terms (including our delay or failure to take such actions);
7. any information that we make available to you, whether in relation to Virtual Assets, the Services, the Platform, the Account or otherwise;
8. any act or omission of a third-party service provider including an exchange, broker, custodian, whether appointed by us or not;
9. any claims or actions brought against you (or an Authorised Individual) by any third party;
10. the occurrence a Force Majeure Event or any circumstances beyond our reasonable control;
11. a Network Event, a Hard Fork or an Airdrop;
12. the occurrence of an Event of Default;
13. any limitations imposed on your use of or access to the Services, the Platform or the Account;
14. suspension or termination of your access to the Services, the Platform or the Account; or
15. termination of these Terms,

regardless of whether any such Losses are direct, indirect, special, incidental or consequential, or we had been advised of the possibility of such Losses, including trading losses, loss of information, business interruption or loss of profits, savings or data.  This disclaimer shall not apply where such Losses are caused directly by our gross negligence, wilful default or fraud.

 

23.6 Notwithstanding the above, and to the extent permitted by the Applicable Laws, in no event shall our liability or the liability of an Indemnified Party, regardless of the form of action and the Losses suffered or incurred by you, exceed the lower of:

1. the aggregate fees paid by you to us in connection with the Services during the 12 months prior to the act or omission giving rise to such liability; or
2. USD 10,000.

 

23.7 Any exclusions or limitations of liability contained in this Clause ‎shall not limit our liability which cannot be excluded or limited under the Applicable Laws.

 

Force Majeure Events

23.8 Neither party shall be liable for failure to perform any obligations under these Terms due to the occurrence of a Force Majeure Event. In the event of a delay caused by a Force Majeure Event, the time provided for performing such obligations shall be extended by a period of time equal to the duration of such delay.

 

24       Suspension or Termination

24.1 Either party may terminate these Terms at any time by giving to the other party at least 30 calendar days’ notice in writing.

 

24.2 We reserve the right to, at our sole discretion and without giving any notice or reason, limit, suspend or terminate at any time with immediate effect these Terms or all or any part of the Services, including the User’s access to or use of the Platform and/or the Account (including any functionalities thereof such as sending and/or withdrawing Virtual Assets).

 

24.3 We may, at any time and at our sole discretion, limit, suspend or terminate your access to or use of any Services, the Platform and/or the Account (including any functionalities thereof such as sending and/or withdrawing Virtual Assets) immediately by notice to you upon the occurrence and continuance of any of the following events (each an “Event of Default”):

1. you have, in our opinion, failed to comply with or have breached any provision in these Terms;
2. you fail to pay on the due date any amount payable pursuant to these Terms or fail to meet any obligations for the settlement of any Trades;
3. you have not provided all documents and information requested by us or satisfied any conditions imposed by us regarding your use of the Services, the Platform or the Account; or
4. you are, at our discretion, no longer eligible to use the Services;
5. any information, or any representation or warranty, given by you (or given by someone on your behalf) is or becomes incorrect, incomplete, untrue or misleading, or you have failed to promptly notify us that any such information, representation or warranty previously given to us has become incorrect, incomplete, untrue or misleading;
6. we are unable to verify or authenticate any information provided by you;
7. you have acted fraudulently or dishonestly in connection with your use of the Services;
8. we believe that it is necessary or desirable to protect the security of the Account;
9. we, in our sole discretion, consider that the Account is operated or any Service is being used: (i) in a manner that breaches or may breach any provision of these Terms or any security requirements of the Account; or (ii) in an improper, dishonest, fraudulent or illegal manner including, without limitation, to engage in money laundering, terrorist financing or other illegal activities;
10. we become aware or suspect that any Virtual Assets and/or Fiat Currencies in the Account may be associated with illegal or proper activities, or otherwise are not legally or beneficially owned by you;
11. the User is or is presumed to be unable to or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling or suspending any of its indebtedness;
12. a receiver, administrator, liquidator or a similar officer is appointed in respect of all or any part of the User’s assets or business;
13. all or any of the User’s assets are subject to enforcement of a judgement or are expropriated, compulsorily acquired or resumed in any manner;
14. upon the insolvency, liquidation, winding up, bankruptcy or dissolution of the User, or where we reasonably consider that there is a threat of the same in relation to the User;
15. the User (in the case of an individual) dies, or is judicially declared insane or incompetent;
16. we believe, in our absolute discretion, that you have breached the Applicable Laws;
17. the occurrence of an event which, in our opinion, may have a material adverse effect on us or other Users;
18. if we decide to cease operations or to otherwise discontinue any services or options provided by us, or parts thereof;
19. there is a change in your circumstances, such as a deterioration in or change to your financial position, which in our opinion, is likely to have a material adverse effect on your ability to comply with your obligations under these Terms;
20. the performance of any obligations under these Terms may cause us to be in breach of the Applicable Laws;
21. we are directed by a Competent Authority to do so;
22. you have engaged in, or attempted to engage in, an Improper Trading Activity or any other activity that could otherwise result in a finding of market misconduct or non-compliance with Applicable Laws in any jurisdiction;
23. we, or a Group Company suspects that you or an Authorised Individual is connected with, or the Account or the Services may be used in connection with, a Financial Crime; or
24. if we otherwise decide in our sole discretion that termination or suspension of the Account, the Services or these Terms is necessary to protect our interests.

 

24.4 We have no obligation to inform you of the grounds or basis for suspending or terminating your access to or use of any Services, the Platform and/or the Account.

 

24.5 Upon termination of these Terms or the suspension or termination of your access to the Services, the Account or the Platform for any reason, we are entitled to without notice to you:

1. cancel or terminate all instructions or Orders that have not been executed at the time of suspension or termination of the Services or the termination of these Terms, and cease to effect any instructions or Orders on your behalf thereafter;
2. complete all Trades that we have effected on your behalf prior to the suspension or termination of the Services or the termination of these Terms;
3. if there is any ongoing Trades that are subject to termination procedures, notify your counterparty of such Trades regarding the termination;
4. all amounts due or owing by you to us shall become immediately due and payable;
5. all delivery obligations to be discharged by you pursuant to these Terms or in connection with any Service or Trade shall be discharged immediately; and
6. exercise any of our rights under Clause 22.

 

24.6 Where these Terms are terminated pursuant to this Clause for any reason, the User must:

1. promptly instruct us to transfer all assets in the Account (including all Virtual Assets and Fiat Currencies) to external wallets or bank accounts held in your name, and pay all such fees and charges that may be incurred, whether by you or us, in respect of such transfers;
2. not use or access, or attempt to use or access, the Services and the Account;
3. discharge all payment and delivery obligations in connection with these Terms on our demand; and
4. take any other action that we may reasonably require.

 

24.7 Upon receiving instructions pursuant to Clause 24.6(a), we shall, after deducting any outstanding amounts owed to us, transfer the balance of the Virtual Assets and/or Fiat Currencies in accordance with your transfer instructions.

 

24.8 If we do not receive any instructions from you pursuant to Clause 24.6(a), we may, after taking reasonable steps to contact you, declare such assets as unclaimed and deal with them in accordance with the Applicable Laws.  We may deduct from such unclaimed assets, any fees, charges and expenses incurred by us in connection with the handling of such unclaimed assets.

 

24.9 The termination of these Terms shall not effect any of our rights and obligations that arose prior to such termination.

 

25       Survival

On termination of these Terms, the following clauses shall continue in force: Clause 2 (Definitions and Interpretation), Clause 4 (Digital Platform Terms), Clause 15 (Third-Party Accounts), Clause 16 (Intellectual Property), Clause 17 (Fees and Payment Obligations), Clause 22 (Right of set-off, netting and lien), Clause 23 (Indemnification and Limitation of Liability), Clauses 24.5 to 24.8 (Suspension and Termination), Clause 27 (Records Conclusive), Clause 28 (General), Clause 29 (Governing Law and Dispute Resolution) and Clause 30 (Third party Rights)..

 

26       Notices and Communications

Communications in writing and delivery

26.1 Any communications, notices, disclosures, instructions or confirmations shall be made or given by either party to the other in writing and addressed to the last known address, email address and/or mobile phone number (for messaging services only) of the other party and/or via other prescribed electronic means (including any computer or electronic system or facility such as the App).  Communications, notices, disclosures, and confirmations issued or given by Spark may also be posted on the Site or the App.

 

26.2 The User agrees to keep its address, email address, mobile phone number and any other contact information up to date at all times, and to notify Spark immediately of any changes to such information.  If any communications sent by Spark to the User is returned or is deemed undeliverable, Spark retains the right to, without any liability to the User whatsoever, suspend the User’s access to the Services until the updated contact information is provided to Spark.

 

26.3 Any communications made or delivered by one party to another in accordance with Clause 26.1 shall be deemed received by the other party:

1. If delivered by mail, two Business Days (if local) or five Business Days (if international) after posting, it being sufficient to prove that the communication was properly addressed and posted;
2. if sent by email, phone messaging services or via other electronic means, immediately, provided that the communication is in readable form and the sending party does not receive a delivery failure receipt; and
3. if posted on the Site or the App, at the time of posting.

 

26.4 Any communication, notice, disclosure, instruction, and confirmation to be made or given by the User to Spark shall be deemed to have been received by Spark only upon its actual receipt in readable form and confirmation thereof.  If such receipt occurs after 5pm on a Business Day or on a non-Business Day in the place of receipt, such communication shall be deemed to be received on the next Business Day.

 

26.5 For a Joint Account or where the Account has more than one Authorised Individual, unless otherwise notified to and acknowledged by Spark, any communication, notice, disclosure and confirmation: (a) sent by Spark to the last known address, email address and/or mobile phone number of any Joint Users or any Authorised Individual; or (b) posted by Spark on the Site or App is taken to be given to all Joint Users or all Authorised Individuals.

 

Recording of communications

26.6 In the course of providing the Services, Spark or its employees or agents may, subject to the Applicable Laws:

1. record and monitor any communications between the User or an Authorised Individual and Spark without informing such persons that such recording or monitoring is taking place;
2. use the recorded communications, transcripts, messages or other records of communication for the following purposes: (i) to comply with Spark’s internal control procedures; (ii) to comply with the Applicable Laws; or (iii) to defend itself against any disputes (whether actual or potential) in connection with these Terms; and
3. disclose or transfer such communications, transcripts, messages or other records of communication to any Competent Authority (whether in or outside of Hong Kong) or as required by the Applicable Laws.

 

26.7 All recordings and relevant records specified in Clause 26.6 belong to Spark.  Spark is entitled to retain or destroy such recordings and records as it considers appropriate or as otherwise required under the Applicable Laws.

 

27       Records Conclusive

27.1 Should there be any inconsistency between: (a) the information or content made available by Spark on the Site or the App or any other electronic medium; and (b) the records in Spark’s system, the latter shall prevail in the absence of manifest error.  Where there is any error or omission in any communication made or issued by Spark, Spark may issue further communications, and such further communication shall supersede the previous communication in all respects, unless otherwise indicated.

 

27.2 The calculation and records in Spark’s system in relation to the Services and the Account, including, but not limited to, any communications, notices, disclosures, instructions or confirmations, the transaction history and balance or positions in respect of the Account will, in the absence of manifest error, be final and conclusive and binding on the User for all purposes. The User agrees to waive any right to challenge or dispute the admissibility, reliability, accuracy or the authenticity of the contents of such records merely on the basis that such records were produced by or were the output of a computer system or are set out in electronic form.

 

28       General

28.1 Entire Agreement:  These Terms, including the Privacy Policy, the Risk Disclosure Statements and other rules and policies incorporated herein, constitute the entire agreement between us and supersedes any and all previous or contemporaneous agreements, representations, warranties and understandings, whether written or oral, with respect to the subject matter of these Terms.

 

28.2 Partial Invalidity:  If any provision of these Terms is or becomes illegal, invalid or unenforceable in any respect under the Applicable Laws, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions of these Terms.

 

28.3 Amendments:  Spark may, from time to time and at its discretion, amend any provision of these Terms (including provisions that describe the scope and nature of the Services).  We will notify you in writing of such changes, which will take effect on the date specified by Spark in a notice issued to the User under Clause 26.  The User’s continued use of any Service or the Account thereafter shall constitute the User’s agreement with such amendments and the revised Terms.

 

28.4 Assignment:  You shall not assign or transfer any of your rights or obligations under these Terms without our prior written consent.  We may assign or transfer any of our rights or obligations under these Terms without your prior consent.

 

28.5 Remedies and Waivers:  No failure to exercise, nor any delay in exercising, on our part any right or remedy under these Terms shall operate as a waiver of any such right or remedy.  No single or partial exercise of any right or remedy shall prevent any further or other exercise of any other right or remedy.  A provision of these Terms, or any rights created under it, may not be waived and shall remain effective, unless such waiver is confirmed in writing by Spark.

 

28.6 Exercise of rights:  The rights and remedies under these Terms are cumulative and not exclusive of any rights or remedies provided by the Applicable Laws. 

 

29       Governing Law and Dispute Resolution

29.1 These Terms shall be governed by the laws of Hong Kong.

 

29.2 Any dispute arising out of or in connection with these Terms, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or in relation to these Terms will be referred to and finally resolved by arbitration administered by HKIAC under the HKIAC-administered arbitration rules in force when the relevant notice of arbitration is submitted.  The following shall apply

1. the seat of arbitration shall be Hong Kong;
2. unless the parties to these Terms agree otherwise, the number of arbitrators shall be three and such arbitrators shall possess the relevant legal and technological expertise;
3. if the parties to these Terms do not agree on the appointment of arbitrators within 15 Business Days of the dispute proceeding to arbitration, the arbitrators shall be appointed by the HKIAC;
4. the arbitration proceedings shall be conducted in English; and
5. the law of this clause shall be Hong Kong law.

 

29.3 Notwithstanding any other provision in these Terms, the User agrees that Spark shall have the right to apply for injunctive remedies in any jurisdiction.

 

30       Third party rights

30.1 A person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) to enforce or to enjoy the benefit of any term of these Terms, except:

1. a Group Company who may enforce its rights or benefits under these Terms, including any indemnity, limitation or exclusion of liability; and
2. any person who is a permitted successor or assignee of the rights or benefits of Spark under these Terms may enforce those rights or benefits,

 

30.2 The consent of any person referred to in Clause 30.1 is not required to rescind or vary these Terms at any time.

 

31       Complaints and Contacting Us

31.1 If you have any questions regarding the Services, please contact us via one of the communication channels specified on the Website or the App.

 

31.2 If you have any complaints about the Services, please refer to our complaint procedure on the Site or the App.

 

31.3 When contacting us, please ensure to provide enough information to allow us to identify you and any other information necessary in respect of your complaint or question.

 

32       Language

These Terms are available in both English and Chinese.  In the event of any consistency between the English and Chinese versions of these Terms, the English version shall prevail.