Memex Trading Service Agreement
Last updated January 1, 2025
BEFORE ACCESSING OR USING ANY OF THE MEMEX TRADING SERVICES OR UNDERTAKING ANY TRANSACTIONS IN THE MEMEX AREA, YOU MUST READ THIS MEMEX TRADING SERVICE AGREEMENT IN ITS ENTIRETY CAREFULLY.
MEMEX TRADING IS COMPLEX AND NOT SUITABLE FOR THE MAJORITY OF ORDINARY PERSONS. THE RISK OF LOSS IN CONNECTION WITH SUCH CAN BE SUBSTANTIAL. YOU SHOULD CAREFULLY EXAMINE YOUR INVESTMENT OBJECTIVES, FINANCIAL RESOURCES AND RISK TOLERANCE AND CONSIDER WHETHER UNDERTAKEING SUCH TRANSACTIONS ARE SUITABLE FOR YOU. YOU SHOULD BE CAPABLE OF BEARING A FULL LOSS OF THE AMOUNTS INVESTED AS A RESULT OF OR IN CONNECTION WITH ANY ORDER.
This Memex Trading Service Agreement (this “Agreement”) and the terms herein govern your use of the Memex Trading Services (as defined below) and related services entered into by and between you (the “User”, “you” or “your”) and Phemex and is legally binding upon you and Phemex. By accessing and using our Memex Trading Services you will be deemed to have fully read, understood and agreed to the terms and conditions contemplated hereof. For the convenience of wording in this Agreement, the Sites, Phemex and/or any of its affiliates, related body corporate are referred to as “Phemx”, “we”, “our” “us” or the “Platform”.
This Agreement shall be supplemental to and constitute part of the Phemex Terms of Use currently in force which is subject to our amendment and update from time to time (available at https://phemex.com/help-center/phemex-terms-of-use) and should be read in conjunction with the Terms of Use. Therefore, unless otherwise stated in this Agreement, the capitalized terms used in this Agreement shall have the same meaning given to them under the Terms of Use. However, where a term is defined both in the Terms of Use and in this Agreement, for the purposes of this Agreement only, the definition in this Agreement shall prevail. In the event of any conflict or inconsistency between the terms in this Agreement and the Terms of Use, the terms in this Agreement shall prevail with respect to the Memex Trading Services contemplated hereunder unless expressly stated otherwise. This agreement is written in English and may be translated into other languages for your convenience. In the event of any discrepancies or conflicts between the English version and the translated versions, the English version shall prevail.
The Memex Trading Services shall constitute part of the Services under the Terms of Use.
1 TERMS AND DEFINITIONS
(a) Memex Area refers to the dedicated trading area established by us on the Sites where Users are able to trade new, innovative Digital Assts.
(b) Memex Assets means the Digital Assets made available for Memex Trading Services in the Memex Area.
(c) Memex Trading Services means services provided by the Platform allowing you to buy or sell Digital Assets that are offered in the Memex Area on the Sites but has yet to meet the criteria for being listed for trading in the Platform’s spot market.
The headings in this Agreement are inserted for convenience only and shall not affect their construction or interpretation. Documents incorporated by reference into this Agreement form part of the Agreement and shall have effect as if set out in full in the body of this Agreement. Unless otherwise stated, references to clauses are to the clauses of this Agreement.
Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular. Words referring to a particular gender shall include the other gender.
This Agreement shall be binding on, and ensure to the benefit of, each of the parties and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Memex Trading Services
Memex Assets are likely to have a higher volatility and pose a higher risk than other Digital Assets, thus they are traded separately from the Platform’s spot market. Before being able to trade in the Memex Area, all Users are required to carefully read and accept this Agreement and the initial disclaimer.
3 TERMINATION
3.1 Trigger Event
A “Trigger Event” shall be deemed to occur if:
(a) any representation, warranty, agreement or undertaking made by you to Phemex (whether under or in connection with this Agreement, the Terms of Use or otherwise) or any other material statement made by you in or in connection with the same is untrue, inaccurate, incomplete or misleading in any respect at the time when made by you or thereafter at any time becomes untrue, inaccurate, incomplete or misleading in any respect and you fail to inform Phemex of the true position as soon as reasonably practicable;
(b) you have failed to comply with or perform any of your obligations contemplated in this Agreement, whether in respect of your Account, any orders, transactions or otherwise, and/or you have failed to comply with or perform any obligation under the Terms of Use or any other agreement with Phemex relating to services provided by Phemex to you (including without limitation your failure to make, when due, any payment or delivery required to be made by you under this Agreement, the Terms of Use or otherwise);
(c) you fail to promptly provide Phemex with any documentation requested for the purposes of any:
(i) “know your customer” checks, including, without limitation, documentation required for the purposes of verifying your identity, place of address, legal authority/capacity and client classification status; and/or
(ii) anti-money laundering requirements or any other internal assessments conducted by Phemex and/or Phemex determines that you have failed to successfully pass or otherwise satisfy any “know your customer” checks, anti-money laundering requirements or any other internal assessments conducted by Phemex;
(d) (in the event that you are an individual) you become deceased, bankrupt or commence action (or have any action commenced against you) to place you into bankruptcy or personal insolvency or you are otherwise unable to pay your debts as and when they fall due;
(e) (in the event that you are acting on behalf of a partnership) any of the partners thereof shall become deceased, bankrupt or commence action (or have any action commenced against them) to place them into bankruptcy or personal insolvency or are otherwise unable to pay their debts as and when they fall due or if any action is commenced to dissolve the partnership;
(f) (in the event that you are acting on behalf of a corporation) the corporation shall be unable to pay its debts as and when they fall due, or action is commenced to place the corporation in insolvency, judicial management, receivership, administrative management, or any similar or analogous proceedings;
(g) any investigation, claim, action or proceeding of any nature is commenced against you (including without limitation investigation into suspected market abuse, manipulation or other criminal conduct), you have breached applicable laws or steps are taken by any person to enforce any security interest against you;
(h) you convene a meeting of your creditors or propose or make any compromise or arrangement with or any assignment for the benefit of your creditors;
(i) Phemex has reasonable concerns in relation to your creditworthiness, financial status or verification of your identity (including, without limitation, any verification of your place of residence or place(s) from which you are accessing the Memex Trading Services);
(j) Phemex determines in its sole and absolute discretion that you have acted in an abusive manner to any representative of Phemex;
(k) you directly or indirectly participate in this Memex Trading Services with more than one Account;
(l) unless alternative arrangements have been made between you and Phemex with reference to a specific absence by you, at any time Phemex is not able to contact you within 24 hours using reasonable means and contact points known to Phemex;
(m) Phemex forms the view, in good faith, that it should take action in order to preserve its rights or interests under any Accounts or under its relationship with you;
(n) Phemex reasonably believes that any of the circumstances set out under clauses 3.1(a) to 3.1(m) above are likely to happen and Phemex also reasonably believes that any action described in clause 3.2 below is necessary, desirable or expedient to protect its interests or the interests of Phemex’s other clients;
(o) a manifest error (that is, any error, omission or misquote (whether an error is from us or any third party that we assign) which is manifest or palpable, including a misquote by any of our representatives taking into account the current market and currently advertised quotes, or any error of any information, source, official, official result or pronunciation; and/or
(p) a credible allegation of fraud, misconduct, embezzlement, money laundering, insider trading, market manipulation abuse or other material illegality, breach of regulation or impropriety is made against you (whether by Phemex or a third party) or Phemex otherwise reasonably believes that you have used the Memex Trading Services with improper intent, which Phemex, acting in good faith and a commercially reasonable manner, believes could reasonably result in reputational harm to Phemex, compromise the integrity of the markets maintained by Phemex and/or result in losses being sustained by other users.
3.2 Our rights
(a) Without prejudice to any other right of Phemex hereunder or otherwise at law, in the event a Trigger Event has occurred, Phemex may (but is not obliged to) immediately or any time thereafter whilst your default of this Agreement is continuing, do any one or more of the following without prior notice:
(i) suspend (temporarily, indefinitely or otherwise), cancel or terminate any Account, any Services provided to you and/or Phemex’s broader relationship with you or prohibit you from opening any Account and/or accelerate any and all of your liabilities to Phemex (including any and all fees, interest, commission, and charges owed by you to Phemex) so that they shall become immediately due and payable;
(ii) unwind or reverse any orders and/or executed orders, freeze any or all amounts allocated to your Account, and/or deduct any amounts allocated to your Account;
(iii) rectify any error in your Account at any time and void or reverse any executed orders;
(iv) liquidate, accelerate, and/or close out any outstanding orders (including any orders and/or executed order which has yet to be settled on the date on which Phemex terminates such order and/or executed order) by determining its value in good faith and in its absolute discretion as of the date of such liquidation, acceleration or close-out as soon as practicable thereafter;
(v) at such times and manner as Phemex may reasonably determine based on, but not limited to, market conditions and portfolio health, sell or otherwise transfer any Memex Assets or other property which Phemex may hold for you or which has been transferred to Phemex by you and apply the proceeds to the discharge of your obligations, subject to Phemex’s rights to set-off and net amounts owed as between you and Phemex as set out under this Agreement or otherwise under the Terms of Use or applicable laws;
(vi) apply any amounts of whatsoever nature standing to your credit against any amounts which you owe Phemex or the counterparty (of whatsoever nature and howsoever arising, including any contingent amounts), or generally to exercise Phemex’s rights of netting and set-off as set out under this Agreement or otherwise under the Terms of Use or applicable laws;
(vii) demand any shortfall after the application of clause 3.2(a)(vi) above from you, or hold any excess pending full settlement of any other of your obligations, or pay any excess to you by way of any methods deemed appropriate by Phemex;
(viii) restrict your ability to withdraw any Memex Assets and/or Digital Assets from any Account;
(ix) do or omit to do anything which Phemex reasonably believes to be necessary, desirable or expedient to protect Phemex or its other clients; and/or
(x) exercise such other authority and powers that may have been conferred upon Phemex by this Agreement and/or the Terms of Use.
(b) To the extent permitted under applicable laws, you will be responsible for the reasonable costs and expenses of collection of any unpaid deficiency in your Account including, but not limited to, legal counsel’s fees incurred and payable or paid by Phemex, and shall be responsible for any other reasonable costs and expenses incurred by Phemex in exercising any of its rights under this clause 3 in relation to any Trigger Event.
(c) You understand and agree that we shall not to the maximum extent permitted by law, be liable to you for any losses caused by the exercise of our rights under clause 3.2.
4 REPRESENTATIONS AND WARRANTIES
4.1 Acknowledgement
(a) You acknowledge that trading with respect to Memex Assets is a highly speculative activity involving highly leveraged and rapidly fluctuating markets. Despite such risks, you acknowledge, understand and agree that you are willing and able to assume the financial risks and other hazards of trading with respect to Memex Assets and agree that you will in no manner hold Phemex responsible for losses howsoever incurred by you under or in connection with this Agreement, the Terms of Use or otherwise.
(b) You acknowledge and agree that no information provided by Phemex, notwithstanding whether included in this Agreement or any other document or statement, shall be deemed as business, legal, financial or tax advice. You may and should consult your own business, legal, financial or tax advisers regarding especially, inter alia, the particular opportunities, risks, obligations or further costs arising from the reception of and in connection with Digital Assets under the Memex Trading Services. We are not your broker, dealer, agent or consultant. Phemex does not monitor whether your use of Memex Trading Services is consistent with your financial goals and objectives. It is up to you to assess whether any activity that you engage in the Memex Trading Services is appropriate given your financial position and risk appetite.
(c) You acknowledge and agree that for any transactions or other decisions or activities through which you use any Memex Trading Services, Phemex does not have a fiduciary relationship with or fiduciary duty towards you. No communication or information provided by us to you, notwithstanding whether included in this Agreement or any other document or statement, shall be deemed, considered or interpreted as investment, business, legal, financial, tax, trading, or any other type of advice. You shall determine whether any investment, investment strategy or related transaction is appropriate for you based on your personal investment objectives, financial condition and risk tolerance, and you shall be solely responsible for any and all losses or liabilities. You should consult your own business, legal, financial or tax advisors regarding especially, inter alia, your particular opportunities, risks, obligations or further costs arising from using the Memex Trading Services. Phemex does not make any recommendations to you regarding whether to buy, acquire, sell, transfer or hold any Memex Assets. Before making a decision to buy, sell, transfer or hold any Memex Assets, you shall conduct due diligence and consult your financial advisor. We shall not be responsible for your decision to buy, sell, transfer or hold Memex Assets based on the information provided by the Platform.
(d) In addition and without prejudice to any other right or remedy which Phemex may have under this Agreement, the Terms of Use, applicable laws or otherwise, so long as Phemex acts in good faith, it shall not be liable to you in any respect for any loss suffered by you, including, without limitation, any loss resulting from default, insolvency or analogous proceedings of, or action or inaction by any intermediary (including wrongful or unlawful action or inaction) or howsoever otherwise suffered and/or incurred by you under or in connection with this Agreement and/or the Terms of Use. Phemex shall only be liable to you if Phemex is proven to have been fraudulent or to have acted in willful default.
(e) Phemex is not responsible for any delay or failure in the handling of operations arising as a consequence of any problems in the telecommunications, computer and other systems; block or closure of the accounts, freezing or holding of funds, denial of service. Respectively, we do not warrant that your use of the Memex Trading Services and access to the Sites will be uninterrupted, secure or free from errors or omissions, or that any identified defect will be corrected. No warranty is given that the Sites will meet the requirements of any persons or are free from any computer virus or other malicious, destructive or corrupting code, agent, program or macros.
(f) Phemex consists of entities registered in accordance with the applicable laws of the relevant jurisdictions. To the extent legally permissible, Phemex may, in its sole discretion, provide Memex Trading Services to you through an entity of its choice.
(g) Without prejudice to the generality of the foregoing, Phemex shall not in any event be liable to you for any indirect or consequential loss, or for any anticipated profits or punitive damages.
4.2 Your representations and warranties
You represent, warrant, agree and undertake that:
(a) you have full capacity and authority and have obtained (and will maintain) and are in compliance with all necessary authorisations, consents, licenses or approvals (whether under applicable laws or otherwise) required to:
(i) fully understand the terms of this Agreement in English;
(ii) accept and agree to the terms of this Agreement;
(ii) receive and/or use the Memex Trading Services;
(iii) to initiate any orders; and
(iv) to open, maintain and/or continue to maintain an Account with Phemex.
(b) you have made your own independent decisions to accept the terms of this Agreement, open and maintain an Account(s), to receive the Memex Trading Services and to initiate or issue orders from time to time and decide as to whether the Memex Trading Services are suitable or appropriate for you or the entity for whom you are acting based on your own judgment and advice from advisers as you deem necessary. You are not relying on any communication (whether written or oral) from Phemex as investment advice or as a recommendation to enter into any transactions in relation to the Memex Assets or as an assurance or guarantee of any expected results of such transactions or any orders;
(c) you have read and understood all the terms and conditions of this Agreement and on relevant pages of the Sites and accept the conditions and limitations for each and every service available to you in connection with the Memex Trading Services;
(d) you are not an employee of any governmental or self-regulatory organization in any jurisdiction, including any exchange or a member firm thereof, or engaged in the business of dealing (either as agent or principal), that prohibits you from establishing a relationship with Phemex, in dealing in any of the Memex Assets traded in connection with your Account, and you shall promptly notify Phemex if you become so employed;
(e) you shall comply with all applicable laws and regulations and cease to access any Services where such compliance becomes impossible;
(f) you do not reside in the Restricted Locations as per set out in Terms of Use, or in any other jurisdictions in which Phemex has restricted the offering of the Memex Trading Services provided under this Agreement;
(g) unless you specifically notify Phemex and Phemex agrees, no person other than you has any interest in your Account or in connection with your use of our Memex Trading Services;
(h) except with the express written consent of Phemex, and except for any security or encumbrance created hereunder, no person has or will have any security or other encumbrance over your Account and/or any Digital Asset held in your Account;
(i) any order placed or any other dealings with respect to your Account is solely and exclusively based on your own judgment and after your own independent appraisal and investigation into the risk associated with such orders and your own independent determination of the order being specifically suitable for you based on your own assessment of your financial resources, ability and willingness to take relevant risks and financial objectives;
(j) Phemex shall not be under any duty or obligation to inquire into the purpose or propriety of any order and shall be under no obligation to accept or execute any order;
(k) any person(s) empowered to act on your behalf have been duly authorized;
(l) you have complied and shall comply with all applicable laws in all jurisdictions relevant to your Account, any orders or other service or facility provided or made available by Phemex to you. We have no obligation or capability to, and therefore do not, verify whether your use of our Services is permitted under applicable laws to which you may be subject, and we shall not bear any responsibility for your use of our Services in violation of any such applicable laws;
(m) all information and/or documents provided by you or on your behalf to Phemex in connection with the services contemplated under this Agreement are true, accurate, complete and not misleading in any and all respects, and nothing has been concealed from Phemex which may have a material bearing on Phemex’s decision to provide or continue to provide any of the services under this Agreement; and
(n) you shall not knowingly or recklessly permit the use of Phemex’s Services, facilities or membership in a manner which is in the opinion of Phemex liable to bring Phemex into disrepute, impair the dignity or degrade the good name of any of the foregoing. You shall not knowingly or recklessly create or maintain or exacerbate manipulations (or attempted manipulations), corners (or attempted corners) or violations of any applicable laws (or arrangements, provisions or directions made or given thereunder), or otherwise act in a manner substantially detrimental to the interests or welfare of Phemex or any of its other users.
The above representations, warranties, agreement and undertakings shall be deemed repeated whenever you place orders or enter into any transactions in relation to the Memex Assets.
4.3 Separate Warranties
Each warranty and representation in this Agreement is construed independently and is not limited by reference to another warranty or representation.
4.4 Reliance on Representations
You acknowledge and agree that Phemex provides the Memex Trading Services to you in reliance on the warranties, representations and undertakings provided hereof.
5 INDEMNITY
In addition and without prejudice to any other right or remedy of Phemex under the applicable laws, the Terms of Use or otherwise (but without duplication), you hereby agree to release Phemex from liability for any and all losses, and you hereby agree to at all times defend, indemnify, keep indemnified and hold Phemex and any of its directors, officers, employees, service providers, and agents harmless from and against any and all loss suffered or incurred by Phemex which arises (whether directly or indirectly) out of, in the course of or in connection with:
(a) any breach of terms, representations or warranties or any failure by you to comply with any provision of this Agreement or applicable laws;
(b) Phemex acting in accordance with your orders and/or executed orders or in any manner permitted under this Agreement and/or the Terms of Use;
(c) your violation of any laws or regulations of applicable jurisdiction(s) or the rights of a third party and/or the actions or inactions of any third party to whom you may grant permission to use your Account or access our website, software, and/or system of Phemex (including any network and servers used to provide any of the Memex Trading Services) operated by us or on our behalf, or any of Memex Trading Services on your behalf;
(d) any changes in any applicable laws that impact the provision of the Memex Trading Services to you (or use thereof); and/or
(e) any act or thing done or caused to be done by Phemex in connection with or referable to this Agreement, the Terms of Use or your Account.
You shall further indemnify, keep indemnified and hold harmless Phemex and any of its directors, officers, employees, service providers, and agents for any and all expenses, costs and legal fees (on a full indemnity basis) incurred, including but not limited to expenses, costs and legal fees incurred for producing records, and information, or payment made (whether such payment is or was or is to be made in settlement of any proceedings or in connection with any ruling, judgment, order or award) by any of them in connection with any investigations or proceedings (whether legal, regulatory, arbitration or other proceedings) brought against it in connection with clauses 5(a) to (e) above. You shall provide any and all reasonable assistance to Phemex in connection with such investigations or proceedings.
6 RISK STATEMENT
Apart from any risks disclosed in the Terms of Use, on our Sites and through our communications to you from time to time in relation to Memex Assets and markets, the following risks are likely to be associated with the Memex Trading Services and your transactions of Memex Assets:
(a) Market Risks
You acknowledge that Memex Asset transactions carry inherent market risks, including but not limited to significant price volatility. Such volatility can arise from market demand fluctuations, technological advancements, changes in market sentiment, and macroeconomic factors. You accept that this volatility may affect the value of Memex Assets both positively and negatively, and you enter into transactions with full awareness of the possibility of rapid and substantial asset value changes. Digital Asset trading is speculative, prices are volatile and market movements are difficult to predict. Supply and demand for Digital Assets can change rapidly without warning and can be affected by a variety of factors which may not be predictable, including regulation, general economic trends and developments in the Digital Asset ecosystem. All investments in Digital Assets carry the risk of loss.
(b) Regulatory Risks
Most Digital Assets operate without a central authority and are generally not backed by any government or authority. The regulatory environment governing Memex Assets is subject to ongoing evolution and change. Such regulatory changes, including but not limited to the imposition of new compliance requirements, restrictions, or outright bans on the trading of certain assets, may materially impact the value, legality, and transferability of Memex Assets. You agree to bear all risks stemming from legal and regulatory modifications and confirm that we bear no liability for losses arising from such changes. Users are responsible for informing themselves and observing any restrictions and/or requirements imposed with respect to, the access to and use of the Platform and the Services in each jurisdiction from which the Platform and the Services are accessed by or on behalf of the User. Phemex reserves the right to modify such restrictions or impose additional restrictions with respect to the access to and use of the Platform and/or the Memex Trading Services from time to time in its sole discretion without notification to you.
(c) Operational Risks
There may be potential delays or interruptions in the operation of the Sites due to various factors including but not limited to technical malfunctions, maintenance periods, or cybersecurity incidents. While Phemex takes reasonable measures to ensure the continuity and security of its operations, it may not be possible for you to buy, sell, transfer, send or receive Digital Assets when you wish to do so. You accept that such risks may result in delayed transactions or loss of access to their assets or accounts on a temporary basis.
(d) Listing and Delisting Risks
The listing and delisting of Digital Assets in the Memex Area could change rapidly, without prior notice to you from time to time, in accordance with Phemex’s listing and delisting criteria. Phemex will conduct periodic review of the Memex Assets and decide whether a Digital Asset should be added to or removed from the Memex Area as per its latest findings. Various factors will be considered in this review process, including but not limited to level and quality of development activity, trading volume and liquidity, stability and safety of network from attacks, network and smart contract stability, level of public communication, evidence of unethical or fraudulent conduct, contribution to a healthy and sustainable ecosystem.
(e) Liquidity Risks
Memex Assets may have limited liquidity which can lead to substantial slippage in prices or the inability to buy or sell the desired amount of assets without a significant impact on market prices. Phemex does not guarantee the liquidity of any Memex Asset and you must consider the potential for illiquidity when entering into orders and related transactions.
(f) Impersonation Scam Risks
There may be scammers who try to create other Digital Assets which impersonate a Memex Asset using the same name. Users should conduct thorough research of a Digital Asset’s smart contract address to identify the correct Memex Asset.
(g) Risk of Loss
In engaging in Memex Asset transactions, you acknowledge that you are doing so at your own risk and that your bear full responsibility for any loss of capital that may occur. You shall carefully assess their financial circumstances and risk tolerance before entering into transactions and to consider seeking advice from financial, legal, and tax advisors.
(h) Security Risk
The nature of Digital Assets exposes them to an increased risk of cyberattack. While Phemex uses all reasonable efforts to safeguard Digital Assets and protect the Platform from cyberattack, it is not possible for any exchange to eliminate security risks entirely. There can be no guarantee that systems in place to mitigate cybersecurity threats will always be effective to prevent improper access to the Platform and Digital Assets. Yon are responsible for all the transactions under your Account, whether you authorized them or not. Transactions in Digital Assets may be irreversible, and losses due to fraudulent or unauthorized transactions may not be recoverable.
(i) Other Risks
Other risks inherent in the use of Memex Trading Services include but are not limited to the limitation of your (or even any person’s) ability to predict correctly how particular Memex Assets will change in value and the impact on Settlement. You must carefully assess your own ability to initiate any orders or enter into any transactions under the Memex Trading Services.
7 RETENTION OF YOUR PERSONAL INFORMATION
(a) You understand and agree that we may retain and store your personal information and relevant data collected during your use of our Memex Trading Services and in connection with your Account for such prescribed period of time after the closure of your Account in accordance with our Phemex Privacy Policy (available at https://phemex.com/help-center/phemex-privacy-policy), our internal data protection rules and polices and/or all applicable laws, and/or for the purpose of compliance with any accounting or reporting obligations and/or our legal obligations under any financial or anti-money laundering laws for as long as required under such laws, or required for the purpose of any dispute resolutions.
(b) Content that you post on our Sites such as support desk comments, photographs, videos, posts, and other content may be kept after the termination of this Agreement for audit and crime prevention purposes (e.g. to prevent a known fraudulent actor from opening a new account).
(c) Recording of our telephone calls with you may be kept for a period of up to six years or such period of time as required by applicable laws. This means that we may still retain the recording of our telephone calls even after the termination of this Agreement.
8 LIMITATION OF LIABILITIES AND DISCLAIMER
(a) YOU EXPRESSLY AGREE THAT YOUR USE OR NON-USE OF THE MEMEX TRADING SERVICES AND RELATED SERVICES ARE AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY UNDER THIS AGREEMENT, ALL PRODUCTS AND SERVICES PROVIDED TO YOU THROUGH THE MEMEX TRADING SERVICES AND RELATED SERVICES PROVIDED TO YOU ARE STRICTLY OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND PHEMEX AND ITS AFFILIATES OR ITS SERVICE PROVIDERS OR SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO YOU OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, NO ERRORS OR OMISSIONS, CONTINUITY, ACCURACY, RELIABILITY OF THE MEMEX TRADING SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. PHEMEX DOES NOT MAKE ANY UNDERTAKINGS AND WARRANTIES FOR THE VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR TIMELINESS OF THE TECHNOLOGY AND INFORMATION IN CONNECTION WITH THE MEMEX TRADING SERVICES OR OTHER SERVICES PROVIDED BY PHEMEX.
(b) NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY OF EITHER PARTY FOR FRAUD, DEATH OR BODILY INJURY CAUSED BY GROSS NEGLIGENCE, VIOLATION OF LAWS, OR ANY OTHER ACTIVITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW OR REGULATIONS.
(c) You agree and accept that the aggregate liability of Phemex shall not exceed the Fees that Phemex received from you when this Agreement is terminated.
(d) You agree and accept that if the Platform cannot function properly or any of the Memex Trading Services is interrupted arising from the following conditions, such that you are unable to use the Memex Trading Services or cannot make commands or perform related trading operations, including but not limited to failure, delay, interruption, no system response, delayed system response or any other abnormal circumstances, Phemex shall not be liable for any losses. These circumstances include but are not limited to:
Service suspension for maintenance;
Hacker attack(s) on Phemex for purposes including but not limited to stealing User Account passwords, secret keys, API key(s), and other information, that result in losses caused by illegal hacking into the User’s Accounts and / or illegal transfer of Digital Assets;
System failure to transmit data as a result of telecom equipment failures;
Force Majeure events or accidents, such as but not limited to typhoons, earthquakes, tsunamis, flooding, plagues, epidemics, power outage, war, turmoil, government actions, terrorist attacks and any other events that may lead to the suspension of Phemex and/or its Services;
Service interruption or delay arising from hacking, computer virus, technical adjustment or failure, website upgrades, banking issues, temporary closure arising from government regulations and any other reasons;
Service interruption or delay caused by the Platform’s computer system being damaged, defective or unable to perform normally;
Losses arising from technical problems that cannot be predicted or solved by existing technical forces in the industry;
Losses suffered by you or other third parties arising from the fault or delay of the third party;
Losses suffered by you or other third parties arising from changes in applicable laws;
Losses suffered by you or other third parties arising from force majeure events or accidents caused by other objectively unforeseeable, unavoidable and/or unsolvable circumstances;
Other Losses not attributable to Phemex due to external uncontrollable events.
9 MISCELLANEOUS
(a) Force Majeure. Phemex shall not be liable for any inaccuracy, error, failure, delay in, or omission of (i) any information, (ii) the transmission or delivery of information, or (iii) carrying out its obligations under this Agreement; any loss or damage in any and all cases arising from any event beyond Phemex’s reasonable control, including but not limited to flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, terrorist attacks, market failure or disruption, telecommunications or network breakdown or disruption, communications, power failure, attacks on the security, integrity or operation of the Account, or equipment or software malfunction or any other cause beyond Phemexs’s reasonable control.
(b) Translation. Phemex may in its sole and absolute discretion translate this Agreement into a language other than the English language. You agree that any such translation shall be for your convenience and reference only and the English text shall prevail in the event of any ambiguity, discrepancy or omission as between the English text and any translated text.
(c) Amendments. Phemex reserves the unilateral right to alter, revise, modify, and/or amend this Agreement and the terms, conditions, and specific features of the Memex Trading Services including, without limitation, the trading period of Memex Assets, transaction fees, and any other procedural or substantive aspect of the Memex Trading Services as it deems necessary or desirable without prior notice to you. Such amendments shall be made in accordance with prevailing industry standards, operational requirements, and in response to feedback, technological advancements, or strategic direction changes. Any such amendments will take effect immediately upon being published on the Sites. It is your responsibility to regularly check relevant pages on the Sites to confirm the latest version of this Agreement. We may but are not obligated to notify you of updates to this Agreement via email or website announcement. Your continued access and use of the Sites and any Services following any amendments to this Agreement shall indicate your acceptance of such amendments. If you do not agree to any such amendments, you should immediately terminate your access to your Account and cease to use any of the Memex Trading Services.
(d) Severability If any provisions of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired in any way. However, if any provisions of this Agreement shall be invalid, illegal or unenforceable under any such applicable law in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it shall be invalid, illegal or unenforceable only to the extent of such invalidity, illegality or limitation on enforceability without affecting the remaining provisions of this Agreement, or the validity, legality or enforceability of such provision in any other jurisdiction.
(e) Assignment. You may not assign or transfer any right or obligations under this Agreement without prior written consent from us, including any right or obligation related to the enforcement of laws or the change of control. We may assign or transfer any or all of its rights or obligations under this Agreement, in whole or in part, without notice or obtaining your consent or approval.
(f) Waiver. No failure or delay by Phemex in exercising any right, power or remedy it is entitled to under this Agreement or by stipulation of law or regulation shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of such rights, power or remedies.
(g) No offer to U.S. persons. The content contained on the Sites does not constitute an offer or sale of securities in or into the United States, or to or for the account or benefit of U.S. persons, or in any other jurisdictions where it is unlawful to do so. Transfer of tokens may be subject to legal restrictions under applicable laws. Under no circumstances shall the tokens be reoffered, resold or transferred within the United States or to, or for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the U.S. Securities Act of 1933, as amended. Any public offering of the tokens to be made in the United States will be made by means of a prospectus that may be obtained from the issuer or the selling digital asset holder and that will contain detailed information about the company and management, as well as financial statements.
(h) Final Decision. For any matters not covered by this Agreement, we reserve the sole and final discretion of final interpretation to the maximum extent permitted by applicable laws.