For all intents and purposes of customers accessing the ZebPay platform in or from Australia will be contracting with
Awlencan Innovations Australia Pty Ltd ACN 629 939 948, C/o - Hall & Wilcox Lawyers, Level 11 South Tower, 525 Collins Street MELBOURNE VIC 3000 which owns and operates the ‘ZebPay’ Exchange Platform in Australia, hereinafter referred to as “Awlencan” or “ZebPay” or “Company”.
In this agreement the following terms, unless the context otherwise indicates, will have the following meanings:
AML Act means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and all associated regulations and rules.
AML Policy means the policies and programs maintained by ZebPay to comply with the AML Act.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Client Deposits means money (fiat) deposited into the Client Asset Account either by the Client transferring funds to the Client Asset Account or by crediting the Client Asset Account by ZebPay as a result of a sale of VFA by the Client on the ZebPay Platform.
Client Deposit Money means Client Deposits credited to the Client Asset Account.
Client Asset Account or Account entails the overall term for all wallets and accounts that the Client holds with the Company on the ZebPay Platform including both fiat and crypto-wallets.
Company means Awlencan Innovations Australia Pty Ltd ACN 629 939 948.
Competent Authority means AUSTRAC or such other relevant government authority.
Dispute means a dispute, controversy or claim between any of the parties as to:
a) the construction of this agreement;
b) the rights or obligations of a part under this agreement; or
c) any other matter arising out of or relating to this agreement.
Force Majeure shall mean and include any cause arising from or attributable to acts, or events, beyond the reasonable control of ZebPay, including natural calamity, strikes, terrorist action or threat, civil commotion, riot, crowd disorder, invasion, war, threat of or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, structural damage, epidemic or other natural disaster, calamity, attacks including through computer viruses, hacking, denial of service attacks, ransomware or other manmade disruptions or any law, order enactment, statutory direction, legislation, regulation, rule or ruling of government or any court of law or of a Government or regulatory authority.
KYC means know your customer requirements under the AML Act.
OTC Trading Platform Services means the services described in clause 9.
VFA ExchangeService means a digital currency exchange accessed in or from within Australia as described in clause 9), on which only Virtual Financial Assets may be transacted in accordance with the rules of the ZebPay Platform.
Virtual Financial Asset or VFA has the same meaning as “digital currency” as defined in the AML Act and includes any other token or cryptocurrency that ZebPay elects to list on the ZebPay Platform.
User or Client means persons availing ZebPay’s Services (as defined below), directly or indirectly.
ZebPay Platform shall mean and include either exclusively or collectively, ZebPay Android App, ZebPay iOS App (collectively, “ZebPay App”) , Zeb Web app (“Web version”) , ZebPay website “www.zebpay.com” (“ZebPay Website”) ,web assets on the ZebPay.com domain, ZebPay Developer Portal, Public APIs and secure authentication for ZebPay Users;
ZebPay Services means the services made available on the ZebPay Platform.
Trading in Virtual Financial Assets involves a high degree of risk to your capital. Virtual Financial Assets may not be an appropriate investment for all investors and you should seek independent advice if necessary. Trading with Virtual Financial Assets may result in total loss of your investment.
ZebPay is committed to support the global fight against money laundering and terrorist financing. In this regard, the Company has endeavored to carefully to ensure that all of its internal anti-money laundering procedures comply with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
BALKANS, BANGLADESH, BELARUS, COTE D'IVOIRE, CUBA, DEMOCRATIC REPUBLIC OF CONGO, IRAN, IRAQ, INDIA, JAPAN, LIBYA, NORTH KOREA, SOMALIA, SRI LANKA, SUDAN, SYRIA, USA, YEMEN, ZIMBABWE, PAKISTAN, KYRGYZSTAN, AFGHANISTAN
By accessing and using the ZebPay Platform, the Client acknowledges and declares that he/she is not on any trade or economic sanctions lists such as the United Nations Security Council Sanctions List and its equivalent. You may not use your Client Asset Account to engage in the following categories of activity (“Prohibited Uses”). The specific types of use listed below are representative, but not exhaustive:
All Users must register for a ZebPay Client Asset Account before using the ZebPay Platform via our standard application procedure. To register for an account, the Client must provide their real name, email address and such other requested information including KYC documents.
Depending on certain conditions and in our sole discretion, we may refuse to open an account for you. No orders can be executed until a Client Asset Account is opened and cleared funds have been deposited in accordance with this agreement.
Where ZebPay is required under applicable law and regulations to report transactions with the Client to a Competent Authority or otherwise, the Client must obtain and provide ZebPay with any information as ZebPay may require. The Client shall not be permitted to place orders unless and until it has provided the information required.
In order to open a Client Asset Account, the Client must fully complete the registration process.
ZebPay is obliged to carry out all the searches and enquiries that ZebPay deem to be appropriate to assess the Client’s identity and/or to carry out any anti money laundering controls which may be required under the AML Act or its AML Policy. This information may be also used for the prevention of money laundering or terrorism financing as well as for the management of the Client Asset Account. The Client authorises ZebPay to use the information to perform the above checks in relation to this Agreement.
The identity verification information which may be requested can generally include but is not limited to:
In providing the above mentioned information, the Client confirms that the information provided is accurate and authentic. Pursuant to registration, the Client must guarantee that the information is truthful, complete and updated in a timely manner inclusive of any change(s). If there is any reasonable doubt that any information provided by you is wrong, untruthful, incorrect, outdated or incomplete, ZebPay shall have the right to send you a notice to demand corrections, remove relevant information directly, suspend use of the Client Asset Account and, as the case may be, terminate all or part of ZebPay Service to the Client.
The Client shall be solely and fully responsible for any loss or expenses incurred by the Client during the use of ZebPay Service if the Client cannot be reached through the contact information provided by the Client.
The Client hereby acknowledges and agrees that he/she has the obligation to keep all information provided to ZebPay up to date and make any any changes if required.
ZebPay may or may not accept an application of a Client in its absolute discretion, including if the Client fails to pass the relevant appropriateness checks. If the Client application is accepted by ZebPay, the Client shall be notified of its approval and receipt of the Client Asset Account.
The Client may only start trading and/or exchanging with ZebPay on the ZebPay Platform after the initial deposit of fiat or VFAs is credited to the Client Asset Account and such deposit has been cleared.
ZebPay shall be authorised to act upon any digital instructions transmitted by the Client. In this connection, ZebPay shall be entitled to carry out any instructions or orders as per the Client’s instructions.
The Client may request ZebPay to make payments by debiting the Client Asset Account to the extent cleared funds are available at the time of the request (electronically via the ZebPay Platform).
The initial deposit and any additional funds deposited by the Client (together, Client Deposits) shall be credited to the Client as the case may be, subject to the following conditions: (i) The Client is required to transfer Client Deposits to ZebPay only from the Client's bank account registered with ZebPay. ZebPay does not accept Client Deposits from any other bank account of the Client or any third party account. (ii) ZebPay does not accept Client Deposits in cash.
Any crediting or debiting of Client Deposit Money to or from the Client Asset Account is net of any bank fees, commissions or other charges or costs (including any applicable taxes, including withholding taxes) and you hereby expressly authorise ZebPay to make any such deductions.
ZebPay may receive interest in respect of the Client Asset Account but will not pay any portion of such amounts to the Client. The Client hereby waives any right to receive interest on any positive balance of Client Deposits on the Client Asset Account.
The Client Asset Account shall be denominated in Australian dollars any other currency determined by ZebPay (‘Base Currency’) by default.
All gains, earnings, losses, costs and liabilities made or incurred by the Client under or in relation to any VFA or any service provided by ZebPay or otherwise in connection with this agreement (including any fees charged by ZebPay) shall be credited or debited to the Client Asset Account, as applicable.
The Client hereby expressly authorises ZebPay to deduct any such amounts from any Client Deposits held in the Client Asset Account by ZebPay on the Client’s behalf.
The Client may, at any time, withdraw funds (‘Withdrawn Funds’) from the Client Asset Account by submitting a request to ZebPay (‘Withdrawal Request’). The amount so requested must be available in the Client Asset Account. ZebPay may, at its discretion, elect to withhold payment (or deduct an amount from it, as applicable) if:
ZebPay will only pay Withdrawn Funds to the Clients registered bank account unless the Client has notified a change in their payment details in writing in advance and this is in compliance with applicable law and regulations, in particular, anti-money laundering controls.
The Client shall make Client Deposits and submit withdrawal requests to ZebPay using the deposit or withdrawal function on the ZebPay Platform. The Client shall be solely responsible for the safekeeping of the Client Asset Account and password/ PIN and the Client will be responsible for all activities relating to the Client’s login sessions and password/PIN.
The Client hereby covenants that the Client:
ZebPay will not be responsible for any loss or consequences caused by the Client’s failure to comply with the above terms and conditions.
The Client represents and warrants to ZebPay that:
If the Client violates any of the provisions of this Agreement and thereby causes any legal consequence, the Client shall independently undertake all of the legal liabilities in the Client’s own name and indemnify ZebPay from all actions, claims, losses or costs arising from such violation;
The Client will not use any data or information displayed on the ZebPay Platform for commercial purposes without the prior consent of ZebPay.
By accessing the ZebPay Service, the Client agrees that ZebPay shall have the right to unilaterally determine whether the Client has violated any of the above covenants and take action without receiving the Client’s consent or giving prior notice to the Client. Examples of such actions include, but are not limited to:
The Client consents to the ZebPay Platform’s KYC checks and procedures and under no circumstance may ZebPay refund any money or grant access to the ZebPay Platform before all necessary procedures have been vetted and consent is formally authorised for the Client to access the ZebPay Platform.
Without prejudice to the aforesaid, any funds which are kept in the Client Asset Account will be ‘frozen’ until the relevant procedures are completed and under no circumstance may they be ‘exchanged’ or ‘withdrawn’.
If the Client’s alleged violation causes any losses to a third-party, you shall solely undertake all the legal liabilities in your own name and hold ZebPay harmless from any loss, fine or extra expenses. If, due to any alleged violation ZebPay incurs any losses, is claimed by any third party for compensation or suffers any punishment imposed by any administrative authorities, the Client will indemnify ZebPay against any losses and expenses caused thereby, including legal fees on a full indemnity basis.
The Client acknowledges and agrees that the above representations and warranties have been a material inducement to the decision of ZebPay to enter into this agreement with the Client.
In case of any abnormal behaviour, fluctuation or delay in transactions beyond ZebPay’s control then for such instances ZebPay is not liable to the Client.
Except where interim or urgent interlocutory relief is sought, prior to the commencement of any legal proceedings, whether in a court or by way of arbitration, the parties agree to use reasonable endeavours to resolve a Dispute in accordance with this clause.
If a party considers that a Dispute exists, then that party must give written notice to the other party that it considers a Dispute exists specifying the Dispute, including any event, matter or omission that the party relies on as giving rise to the Dispute.
If the Dispute is not resolved within 10 Business Days of the above notice (Resolution Period), either party may refer a Dispute to mediation no later than 10 Business Days after the end of the Resolution Period.
Any Dispute referred to mediation:
ZebPay grants you a non-exclusive, revocable, non-transferable licence to use the software on a server controlled by us for the sole purpose of accessing and obtaining the material on the ZebPay Platform.
ZebPay will provide access to the ZebPay Platform on an “as is” and “commercially available” condition and to the maximum extent permitted by law does not offer any form of warranty with regards to the ZebPay Platform’s reliability, stability, accuracy and completeness of the technology involved. The ZebPay Platform serves merely as a venue of transactions where VFA information can be acquired, and VFA transactions can be conducted.
ZebPay cannot control the quality, security or legality of the VFAs in any transaction, truthfulness of the transaction information, or capacity of the parties to any transaction to perform their obligations. The Client must carefully consider the associated investment risks, legal status and validity of the transaction information and investment decisions prior to your use of the ZebPay Platform.
If you have a dispute with one or more users of the ZebPay Platform, you agree that neither we nor our affiliates or service providers, nor any of our respective officers, directors, agents, joint venturers, employees and representatives will be liable for any claims, demands and damages (actual and consequential) of any kind or nature arising out of or in any way connected with such disputes.
ZebPay will not be liable for any loss caused to the User due to discontinuation of any cryptocurrency that is being offered through the ZebPay Platform.
ZebPay shall not be liable for any disruption of service, whereby the User is denied access to their cryptocurrencies, including those stored on the Client Asset Account.
ZebPay shall not be liable for any loss caused to the User through loss of any cryptocurrency stored on the User’s Client Asset Account for any reason whatsoever, save and except due to a wilful and malicious commission or omission by ZebPay directly resulting in such loss.
ZebPay shall not be liable for any discontinuation, alteration, suspension or termination of any part of the services offered on the ZebPay Platform caused or occasioned any Force Majeure event or any change in applicable Law with respect to cryptocurrencies.
The User shall not be entitled to any damages for any reason whatsoever including for consequential or compensatory damages against ZebPay for any reasons including suspension, cancellation or termination of the User account or for cessation of any or all services on the ZebPay Platform. The User shall only be entitled to refund / recovery of the cryptocurrencies credited to the Client Asset Account, subject to deductions of amounts owed to ZebPay and other legal, regulatory or statutory dues or those stipulated under applicable law, and to the permissibility of such refund or recovery under applicable law.
In the event that any cryptocurrencies stored in any Client Access Account are seized, or ZebPay is unable to access or return the same to User, ZebPay shall not be held liable or responsible for the same. The User is cautioned to avail itself of the ZebPay Platform subject to the above risk. At no point in time will ZebPay, its directors, shareholders, employees, representatives, officers, affiliates or assigns be held liable for any claims whatsoever for cessation of services or termination of any part of the ZebPay Platform or any disruption with respect to access to any Client Asset Account.
All claims by a User shall be limited to the cryptocurrencies and fiat in the relevant Client Asset Account, subject to the above mentioned conditions.
To the maximum extent permitted by law, THE MAXIMUM CUMULATIVE LIABILITY OF ZEBPAY IN ANY EVENT, FOR ANY CLAIM, DAMAGES, TORT SHALL BE LIMITED TO THE CRYPTOCURRENCIES ACTUALLY RECEIVED FROM THE USER, AS CONSIDERATION OR FEES FOR THE SERVICES RENDERED BY ZebPay IN RELATION TO THE APPLICABLE TRANSACTION TO WHICH THE CLAIM RELATES. IF THE CLAIM DOES NOT RELATE TO ANY TRANSACTION IN PARTICULAR, THEN ZEBPAYS MAXIMUM CUMULATIVE LIABILITY SHALL BE LIMITED TO THE CRYPTOCURRENCIES ACTUALLY RECEIVED FROM THE USER, AS CONSIDERATION OR FEES FOR THE SERVICES RENDERED BY ZEBPAY IN RELATION TO THE TWO TRANSACTIONS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM IS MADE BY THE USER .
ZebPay will not be liable for any breach of this agreement where the breach is due to abnormal and unforeseeable circumstances beyond ZebPay’s control, the consequences of which would have been unavoidable despite all effects to the contrary, nor is ZebPay liable where the breach is due to the application of mandatory legal requirements.
In addition to the liability cap above, in no event shall ZebPay, our affiliates or our service providers, or any of our or their respective officers, directors, agents, employees or representatives, be liable for any of the following types of loss or damage arising under or in connection with this agreement or otherwise:
ZebPay shall have the right to keep and use the transaction data or other information related to such Client Asset Accounts. The above account controls may also be applied in the following cases but not limited to:
In case of any of the following events, ZebPay shall have the right to directly terminate this agreement by cancelling the Client’s Asset Account, and shall have the right to permanently freeze (cancel) the authorisations of the Client’s Asset Account and withdraw the corresponding Client account:
after ZebPay terminates services to the Client,
Should the Client Asset Account be terminated, the account and transactional information required for meeting data retention standards will be securely stored for seven (7) years. In addition, if a transaction is unfinished during the account termination process, ZebPay shall have the right to notify the Client’s counterparty of the situation at that time.
Subject to clause 20(f), once the Client Asset Account is closed/withdrawn, all remaining balances (which includes charges and liabilities owed to ZebPay) on the account will be due and payable to ZebPay. Upon payment of all outstanding charges to ZebPay (if any), the User will have the reasonable time to withdraw all funds from the account.
It is the responsibility of the User to abide by local laws in relation to the legal usage of ZebPay Services in their local jurisdiction. Users must also factor, to the extent of their local law all aspects of taxation, the withholding, collection, reporting and remittance to their appropriate tax authorities.
All users of the ZebPay Platform and any of its services acknowledge and declare that the source of their funds come from a legitimate manner and are not derived from illegal activities. ZebPay maintain a stance of cooperation with law enforcement authorities globally and will not hesitate to seize, freeze, terminate the Client Asset Account and funds of Users which are flagged or investigated by legal mandate.
ZebPay services are offered only on the digital domain, which is subject to risks including offensive attacks. ZebPay shall not be liable for any loss caused to the User’s account or the monies or cryptocurrencies accrued therein if the same arises due to any Force Majeure event, including commissions or omissions by third parties, forces of nature, offensive attacks on ZebPay servers or on the personal devices of the Users, changes in applicable law, or any loss caused by conditions or events beyond the reasonable control of ZebPay.
The above limitation on liability includes any Force Majeure event set out hereunder including acts of god; fire, act of terrorists, act of civil or military authorities, civil disturbance, war, strike or other labour dispute, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond reasonable control of ZebPay; offensive attacks including virus attack, hacking, denial of service attack or theft of the personal devices of the User resulting in loss to the account.
To the maximum extent permitted by law ZebPay shall not be liable for any loss caused to User due to a data breach of confidential information of the User, including of the User account details or User password, including when such breach has occurred due to the User sharing such details with third parties or due to the User’s failure to follow reasonable due diligence. ZebPay shall also not be liable or responsible for any disclosure by User of any User account details, including on account of a phishing attack or other third-party disruption.
ZebPay processes all personal information in accordance with applicable law and regulations relating to the processing, privacy, and use of personal.
ZebPay may collect, hold and process personal information about the Client from the way in which the Client engages with ZebPay (such as by ﬁlling in the application, placing orders, or if the Client contacts ZebPay by post, email, telephone, in person or by any other means), through the Client’s interactions with ZebPay and/or the ZebPay Platform.
ZebPay relies on the following legal basis to process and use the Client’s personal information:
ZebPay has security procedures covering the storage and disclosure of the Client’s personal information to prevent unauthorised access of any Client personal information and to comply with the Privacy Act 1998 (Cth).
Neither party may disclose to any person any information relating to the business, investments, finances or other matters of a confidential nature of the other party of which it may come into possession in connection with this agreement and its performance by the other party, and each party shall use all reasonable endeavours to prevent such disclosure, except as may be required by any applicable law, rule or regulatory, law enforcement or tax authority.
For the avoidance of doubt, ZebPay may be required to disclose information to third parties in order to carry out fraud-checks, and the Client expressly consents to such disclosure.
If the Client has any complaints, feedback or questions, the Company may be contacted via email@example.com and we will in our best efforts try to resolve the issue with expediency. ZebPay shall not provide any support services to walk-in users.
In this clause 26, words and expressions defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the meaning given to them in the GST Act.
All amounts payable or consideration to be provided under or in connection with this agreement, do not include an amount for GST.
If GST is or becomes payable on any supply made under or in connection with this agreement, the party required to provide the consideration for the supply must pay, in addition to and at the same time as the consideration is provided, an amount equal to the amount of GST on the supply.
Where a party is required under this agreement to reimburse or indemnify another party for any loss or amount, the amount to be reimbursed or paid will be reduced by any input tax credit that the other party is entitled to claim.
Any payment to be made under this agreement must be made by one of the following methods:
Unless this agreement expressly states otherwise, a notice, consent, approval, waiver or other communication (notice) in connection with this agreement must be in writing. A notice may be given by hand delivery, prepaid post, or by electronic message to the recipient’s physical address or email address as advised from time to time.
A notice given under this clause will be deemed to be received:
unless a notice is received after 17:00 Hours on a Business Day in the place of receipt or at any time on a non Business Day, in which case, that notice is deemed to have been received at (09:00 hours on the next Business Day.
A party may not assign or otherwise deal with any of its rights or obligations under this agreement without the prior written consent of each other party that must not be unreasonably withheld. However, ZebPay may, without the consent of the User assign its rights under this agreement in the case of the sale of all or part of the ZebPay Platform.
This agreement may only be amended or varied at any time by ZebPay. If user does not accept such modification he/she immediately cease to use the service.
No failure to exercise or delay in exercising any right given by or under this agreement to a party constitutes a waiver and the party may still exercise that right in the future.
Waiver of any provision of this agreement or a right created under it must be in writing signed by the party giving the waiver and is only effective to the extent set out in that written waiver.
By giving its approval or consent about any matter dealt with in this agreement, a party does not make or give any warranty, representation or undertaking about any circumstances relating to the subject matter of the consent or approval.
If any provision of this agreement is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed from this agreement without affecting the validity or enforceability of the remaining provisions of this agreement.
On completion or termination of the transactions contemplated by this agreement, the rights and obligations of the parties set out in this agreement will not merge and any provision that has not been fulfilled remains in force.
Each party agrees to promptly do all things reasonably necessary or desirable to give full effect to this agreement, including obtaining consents and signing documents.
This agreement contains the entire agreement between the parties about their subject matter and supersede all previous communications, representations or agreements between the parties on the subject matter.
This agreement is governed by the laws of Victoria, Australia.
The parties submit to the non exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia and any courts that may hear appeals from those courts about any proceedings in connection with this agreement.