PEXX DIGITAL TOKEN SERVICES TERMS OF USE

Version date: 1.0 dated 19 June 2024

These Terms of Use govern the relationship between you and PEXX. They apply each time you use or access the Digital Token Service on the PEXX website (https://pexx.com) or the PEXX application. These Terms of Use also set out important information that you need to know.

These Terms of Use form a legal Agreement between you and us.

Please read these Terms of Use carefully.

PEXX is registered with AUSTRAC to provide digital currency exchange services in accordance with the AML/CFT Act, and its digital currency exchange registered provider number is DCE100851583-001. PEXX is also registered as an independent remittance dealer on the AUSTRAC Remittance Sector Register in accordance with the AML/CFT Act, and its registered independent remittance dealer number is IND100851583-001.

Cryptocurrencies are different to electronic money and are not regulated in the same way as regular currency. We do not provide the Digital Token Service to you under an Australian financial services licence. We do not take into account your personal circumstances to determine whether the Digital Token Service is right for you. You should therefore consider your personal circumstances and the financial risks associated with cryptocurrencies. Please see clause 15 for further information.

1. Definitions

Agreement means these Terms of Use and Privacy Policy.

AML/CFT Act means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) of Australia.

AML Laws means applicable anti-money laundering and counter-terrorism financing laws and regulations of any jurisdiction relevant to the operation of PEXX including the AML/CFT Act and related regulations and rules.

Crypto Exchange means a cryptocurrency exchange that we have partnered with.

Digital Token Service or Service means the cryptocurrency trading services that enables you to sell supported cryptocurrencies to PEXX for supported fiat currency and facilitates the transfer of that fiat currency to a bank account nominated by you in an available jurisdiction.

Fee or Fees means the fees payable for your use of the Service.

        KYC means ‘know your customer’ identification verification checks conducted for compliance         with AML Laws and Sanctions Laws.

Nominated 3P Bank Account means the bank account in an available jurisdiction that you nominate for us to make payment of the fiat currency we owe you for the cryptocurrency that you have sold to us using the Digital Token Service.

PEXX, we, us or our means PEXX Technology Pty Ltd (ABN 79 672 375 030).

Platform means the PEXX website (accessible at https://pexx.com) or the PEXX application through which you can access the Digital Token Service.

Sanctions Laws means any economic sanctions laws, regulations and embargos as imposed by the United Nations, Australia, Singapore, or any other jurisdiction relevant to the operations of PEXX.

Terms of Use means these terms and conditions between you and PEXX which govern your access to and use of the Digital Token Service.

Third Party Service Providers means third party service providers that provide technology or functionality used by PEXX to provide the Digital Token Service.

Transaction means your instruction that PEXX has accepted to buy supported cryptocurrency from you in exchange for supported fiat currency.

        You or your means the person accessing or using the Digital Token Service.

2. Digital Token Service

1. PEXX provides you with access to the Digital Token Service that enables you to sell supported cryptocurrencies to us for supported fiat currency, and facilitate the payment of the fiat currency to a Nominated 3P Bank Account.
2. A list of the fiat currencies and cryptocurrencies that PEXX currently supports in respect of its Digital Token Service can be found on our Platform or may be otherwise notified to you. It may not always be possible to give you advance notice of a change to the supported cryptocurrencies (for example if a cryptocurrency becomes illegal due to a sudden change in applicable laws and regulations or if a cryptocurrency suddenly changes its name, or in the way it functions).
3. Selling Cryptocurrency. 

1. You can sell cryptocurrencies in a real-time, immediate manner. If you "sell now", we will follow the following procedure: You tell us how much cryptocurrency you want to sell and we'll let you know the equivalent supported fiat currency you can purchase. If we accept your instruction to sell cryptocurrency, we will purchase the cryptocurrency from you at the exchange rate disclosed to you at the time you submit your instruction, and pay the fiat funds in your selected currency to your Nominated 3P Bank Account (each a Transaction). You cannot receive the proceeds from a sale in any other way.
2. We may limit the amount of cryptocurrency we are willing to purchase from you. We will tell you the amount of any limit before you submit your instruction to us.
3. Each Transaction is a one-off arrangement and does not mean that we will enter into other Transactions in the future. We may not accept your instruction to sell cryptocurrency. Our decision to enter into a Transaction will be made on the basis of our legitimate business interests.  If we do not accept an instruction to enter into a Transaction, we will not be responsible for any losses you suffer as a result.
4. Sometimes, we may pre-fund the payment of the proceeds of a Transaction into your nominated account before we actually receive those proceeds from the exchange. If we do, and the payment fails to arrive from the exchange or the Transaction does not otherwise proceed, you agree that we can reverse or put a hold on the payment we have pre-funded.

4. Exchange Rate.

1. [The exchange rate for selling cryptocurrency is set by us. It is a variable exchange rate, which means it is constantly changing. You can see the prevailing current exchange rate on our Platform. Our exchange rate doesn't include our fees. The exchange rate may change between the time you told us you wanted to sell cryptocurrency and the time we are actually to buy it from you. This means that if you ask us to sell cryptocurrency, you may receive more or less fiat currency than you expected under a Transaction. We are not responsible if you suffer any losses as a result of trading in cryptocurrency.

5. Fees:

1. We charge you a Fee on each Transaction. We will show you this Fee before you initiate a Transaction as well as after a Transaction has been processed in the Transaction details.

6. Lawful use of Service. 

1. You represent and warrant to PEXX at all times that you will comply with legal and regulatory requirements, restrictions, and prohibitions applicable to your use of the Service.
2. These legal and regulatory requirements, restrictions and prohibitions include any anti-money laundering, counter-terrorism financing, trade sanctions, foreign exchange controls or restrictions, or tax consequences applicable to your use of the Service.

7. Availability of Service. 

1. The availability of the Digital Token Service in any specific jurisdiction depends on a number of factors, including whether the provision or receipt of the Service is lawful in that jurisdiction. In accordance with its legitimate business interest, PEXX has sole and absolute discretion in determining whether we make available the Service in any jurisdiction. If we determine that we will no longer offer the Service in your jurisdiction, we will notify you if this change.

3. Your access to the Service

8. When you register for access to the Digital Token Service:

1. You will need to create log-in credentials by selecting a password and providing an e-mail address, along with any other registration information as required from time to time.
2. You must not create log-in credentials that we, acting reasonably, deem offensive. Failure to comply constitutes a breach by you of this Agreement, which may result in immediate termination of your access to the Service.
3. You must not provide, distribute or share, or enable the provision, distribution or sharing of, your log-in credentials with any third party.
4. We may prescribe security procedures applicable to the use of the Service, which you must comply with.
5. You must maintain the confidentiality of your log-in credentials. You must not at any time disclose this information to any other party.
6. You must keep your contact details up to date so that you can receive alerts we may send to you. Failure to do so may result in adverse results like unauthorised access to your account and potential theft or money laundering.
7. Except where caused by our negligence, fraud or misconduct, we will not be responsible or liable for any loss caused or damage suffered by you that occurs as a consequence of any use of the Service under your registration (including unauthorised transactions) where you have not notified us that your access to the Service has been compromised. If you believe that the security of your information has been compromised, contact us immediately.

9. By registering for the Service, you represent and warrant that:

1. if you are a natural person (i.e., an individual and their estate and personal representatives); that you are at least 18 years old and have the full right, power, and legal authority to enter into these Terms of Use;
2. if you are registering to use the Service on behalf of a legal entity (e.g. an incorporated entity), you represent and warrant that the legal entity is duly organised and validly existing under the applicable laws of the jurisdiction of its organisation; that you are duly authorised by such legal entity to act on its behalf, and that the legal entity agrees to be bound by these Terms of Use;
3. you will not authorise other persons to use your details to access the Service nor transfer or assign it to any other person; and
4. you are not impersonating any other person, operating under an alias or otherwise concealing your identity.

We may refuse your registration for the Service or terminate your access to the Service if you fail to fulfil any one of the eligibility criteria above.

We may change the eligibility criteria for registering for the Service, in accordance with clause 12.

10. Depending on your country of residence, you acknowledge that you may not be able to use the Service.
11. PEXX is not obliged to accept all registrations for the Service and may accept or reject any registration for the Service.
12. To protect its legitimate interests, PEXX reserves the right to suspend a customer’s access to the Service, reject an instruction to enter into a Transactions and cease offering the Service to a customer.
13. You acknowledge that the Service may be unavailable from time to time due to scheduled outages or due to factors beyond our control, such as your internet connection or third-party service providers.
14. You may terminate your use of the Service at any time by giving PEXX notice in writing at support@pexx.com.

4. Fees

1. The Fees payable for your use of the Service are displayed on the website and may chance from time to time. You will be prompted to make payment for the applicable Fees where they are triggered by your use of the Service (for example, as part of the confirmation of instructions in connection with a Transaction).  
2. You agree to make payment for other duties payable by you in connection with your use of the Service (including in the case of bank transfers, any bank charges).
3. We may use payment gateway providers or payment processing agents to process your payment of Fees. If you wish to pay any amount with our payment gateway providers or payment processing agents, you will be redirected to its secured payment page. If you provide your credit card details, you authorise us, our payment gateway providers and/or our payment processing agents to charge your credit or debit card for the applicable Fee(s) (if any).
4. We may change the Fees payable in accordance with clause 12.

5. Privacy Policy

1. It is a continuing condition of your use of the Platform that you review the terms of our privacy policy as amended from time to time, available at https://pexx.com/privacy-policy ("Privacy Policy"), which set out details of our collection, use, disclosure and/or process of your personal data.
2. If in connection with your use of the Platform, you provide the personal data of any third parties, you warrant and represent that you have confirmed that the said third parties have also reviewed the terms of the Privacy Policy, and that they consent to the collection of their personal data by us and our related corporations and affiliates having regard to that Privacy Policy.
3. You warrant and represent to us that all personal data which is submitted to us by you through your use of the Platform is complete, accurate, true and correct.
4. The Platform may provide links to external sites whose data protection and privacy practices may differ from those set forth here. We are not responsible for the content and privacy practices of these other websites and you agree to review and abide by the data protection and privacy notices of those sites.
5. The Platform uses cookies. A cookie is a small text file which is placed on your device whenever you run or use the Platform. These cookies collect information about your use of the Platform. We use cookies and other technologies to facilitate your use of the Platform and to improve your experience of the Platform. You may change the settings on your device to block the use of cookies. However, if you do choose to block the cookies used on the Platform, you may not be able to use certain features and functions of the Platform.

6. Third Party Service Providers

1. PEXX has arrangements in place with Third Party Service Providers in order to provide the Digital Token Service.
2. PEXX relies in whole or in part, on the continued development and support of the technology and functionality provided by Third Party Service Providers. Access to the Digital Token Service may be made conditional upon you consenting and/or agreeing to, and meeting the terms and conditions of such Third-Party Service Providers and those terms shall govern your use of such services they provide. These may include but are not limited to Third Party Service Providers who assist us with our identity verification procedures.

7. Disclaimer of Warranties and Liability

1. You agree and acknowledge that we do not warrant that the Service will meet your requirements, that the operation of the Platform will be uninterrupted or error-free. No representation or warranty is provided that:

1. the Service will be uninterrupted or error-free;
2. the Service will at all times be available and/or accessible for your use;
3. any non-interference with your enjoyment of the Service; and
4. the Service being compatible or working with any third-party software, applications or third-party services.

8. Indemnity

1. You agree to indemnify and hold harmless PEXX for all costs, liability, loss or costs we may suffer or incur from your breach of these Terms of Use and any terms relating to your use of the Service. This indemnity does not extend to any costs, liability, loss or costs caused by our mistake, fraud, negligence or wilful misconduct or the same of our employees, officers, contractors or agents.
2. This Clause 8 shall survive the termination or expiration of this Agreement (howsoever caused).

9. Electronic communications

1. You accept and agree that:

1. any communications, agreements, notices and/or any other documents (together "Communications") relating to your use of the Service will be provided to you electronically by posting them on the Platform and emailing them to the email address you have provided to us. You consent to receiving all Communications from us electronically;
2. you must provide us with a valid and accessible email address to which any Communications may be sent, and must ensure that email address and any other contact information is kept up to date. Any Communication sent to the email address you have provided to us will be treated as having been received by you. You can amend your contact information by updating the profile settings in your account.

10. Anti-Money Laundering and Counter-Terrorism Financing and Sanctions Laws

1. In order to use the Digital Token Service, your identity must first be verified. PEXX implements and maintains high standards of KYC processes and controls as part of our commitment to combating fraud and assisting in the prevention of money laundering and terrorist financing. PEXX utilises Third Party Service Providers to perform these checks.
2. To ensure we meet the requirements under AML Laws and Sanctions Laws:

1. you are required to provide personal information so that we can verify your identity in accordance with our KYC processes. You must give all the information we reasonably require to comply with AML Laws and Sanctions Laws
2. we are required to retain information collected as part of our KYC processes, including after you have ceased using our Service. Further information on the collection, use and retention of your personal information can be found in the PEXX Privacy Policy (see clause 5).

3. PEXX reserves the right to, at any time:

1. restrict or suspend your access to the Service if we consider it necessary to carry out further KYC processes; or
2. terminate your access to the Service if you provide, or we suspect you have provided, false information or refuse to provide information we require for our KYC processes.

4. You accept and agree that there may be delays in accessing the Service or in carrying out Transactions through your account while we undertake any KYC processes.
5. If we determine that executing a Transaction would be unlawful, or in any way contrary to our obligations under AML Laws and Sanctions Laws, we may suspend such a transfer for as long as we reasonably determine is required. You agree that when this occurs, you have no claims regarding the delayed transfer and agree to assist us with every request for information in this regard.
6. You acknowledge and agree that we are required to act in accordance with our obligations under the AML Laws and Sanctions Laws in providing the Service which includes our exercising discretions as we determine appropriate to protect our legitimate interests.

11. Restriction, suspension and termination

1. We reserve the right to restrict, suspend or terminate your access to the Service without advance notice where we reasonably suspect:

1. your access to the Service is subject to an operational or other error, in which case we may be required to suspend your access to the Service until such time as the error is rectified;
2. your access to the Service has been or is being used in relation to any unlawful or fraudulent activities or in breach of these Terms of Use;
3. you or your access to the Service is or has been associated with, or poses a high risk of, money laundering, financing of terrorism, fraud, or any other financial crime;
4. you are taking any action that we consider to be a circumvention of our controls, including but not limited to multiple registrations for the Service;
5. we reasonably suspect your involvement in any attempt to gain unauthorised access to another person’s log-in credentials;
6. your access to the Service is or appears to be the subject of any legal, regulatory or government process and/or we, in our sole discretion, consider there to be a heightened risk of legal or regulatory non-compliance associated with your account;
7. we are compelled to do so by a prima facie valid subpoena, court order, or other binding order of a government or regulatory authority; or
8. we reasonably conclude that you, or any person or geography with whom you transact, are / is the subject of any restrictions under Sanctions Laws.

2. We otherwise may terminate or suspend your access to any PEXX Service, by providing written notice to you.

12. Variation of Terms

1. We may amend, vary or supplement the Terms of Use from time to time.
2. Where the amendment is not unfavourable to you, we will provide you with written notice no later than the day the amendment, variation or supplement is to take effect.
3. Where the amendment, variation or supplement is unfavourable to you, we will only amend vary or supplement the Terms of Use if we, acting reasonably, determine that that it reasonably necessary to:

1. reflect changes to our operational costs, business operations, systems and processes or our arrangements with third parties;
2. give effect to regulatory change, standards, recommendations, guidance or applicable laws;
3. reflect changes to industry or market conditions or practice; or
4. otherwise protect our legitimate interests.

We will provide you with at least 30 days’ written notice of such amendment, variation or supplement. If you do not wish to be bound by any amendment, variation or supplement, you can cease using the Service and terminate this agreement by emailing support@pexx.com before the notice period ends.

13. General

1. Each of the terms and conditions in these Terms of Use are severable and distinct from one another and if at any time, any one or more of this documents and conditions or any part thereof is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will not thereby be affected or impaired in any way and will remain in force.
2. The rights and remedies provided in these Terms of Use are cumulative and not exclusive of any other right or remedies (whether provided by law or otherwise).
3. No failure on our part to exercise and no delay on our part in exercising any right or remedy under these Terms of Use will operate as a waiver of such right or remedy, nor will any single or partial exercise of any right or remedy preclude any other or further exercise of such right or remedy or the exercise of any other right of remedy. Any waiver by us of our rights or remedies in respect of any terms under these Terms of Use or any breach of these Terms of Use on your part must be in writing and may be given subject to such terms and conditions as we may deem fit and is effective only in the instance and for the purpose for which it is given.
4.  You are solely responsible for determining and paying any income, sales or capital gains taxes to the appropriate tax authorities in connection with any of your activities on the Platform, and we are not responsible for collecting these from you, for making any payments on your behalf, or for providing any reports relating to tax.
5. A person who is not a party to this Agreement shall have no right to enforce or enjoy the benefit of any term of this Agreement. Notwithstanding any term of this Agreement, the consent of any person who is not a party to this Agreement is not required to rescind or vary this Agreement at any time.

14. Governing Law

Your access and use of the Platform as well as this Agreement shall be governed by laws of New South Wales, Australia and you agree that the courts of New South Wales, Australia shall have exclusive jurisdiction over all disputes relating thereto.

15. Important Statements

PEXX is not a bank and does not hold an Australian Financial Services Licence (AFSL).

Risks associated with using the Service

6. This section sets out some of the risks involved in connection with digital assets / cryptocurrency and using the Digital Token Services. However, this section does not constitute an exhaustive list of such risks and as such, you should carefully consider whether using our Service is suitable for you in light of your circumstances.
7. Legal status

1. The legal status of digital assets / cryptocurrency (including cryptographic coins, stablecoins and tokens) remains uncertain in many countries and jurisdictions around the world. Digital assets and cryptocurrency may be legally prohibited in certain countries or jurisdictions or be subject to specific restrictions and limitations which you are solely responsible for complying with at your own risk and expense. We take no position as to the legal status of any digital asset / cryptocurrency.
2. It is your responsibility to undertake your own investigations and enquiries and satisfy yourself of the legal status of any digital asset / cryptocurrency (particularly in Australia). You acknowledge and agree that your involvement in digital assets / cryptocurrency through the Service is at your own risk.

8. Risks of trading and holding cryptocurrency

1. Historically, the value of digital assets / cryptocurrency has been highly volatile and there is a risk that they could have little to no value in the future. The trading or holding of digital assets / cryptocurrency therefore involves significant risks and the losses can be substantial. It may be difficult to value digital assets / cryptocurrency accurately and reliably given the nature of their trading and difficulty in identifying their fundamentals. You should carefully consider and assess whether trading digital assets / cryptocurrency or using cryptocurrency-adjacent services is suitable for you depending upon your financial circumstances and tolerance to risk.
2. Due to the significant risks of trading digital assets / cryptocurrency as well as the impact of technology and the international market, PEXX cannot warrant or guarantee that any particular digital assets / cryptocurrencies will continue to be available as part of the Service. PEXX reserves the right to stop offering trades in relation to particular digital assets / cryptocurrency as part of the Service. We will notify you if we cease to support trading a particular digital asset / cryptocurrency.

9. Cyber risks, delivery and custody

1. PEXX is not responsible or liable for any cryptocurrency or fiat currency sent to an incorrect account. It is important for you to take care when providing us with the bank details for the Nominated 3P Account. You should familiarise yourself with the security measures available when using a third-party wallet service or other device for storage. Always take a greater degree of care and precaution to secure your passwords when operating in a digital environment. You are strongly advised to double check that you have inserted the correct third-party wallet address (for cryptocurrencies) or Australian bank account details (for fiat currency) where required.
2. There could be market conditions, or other operational or technical difficulties which could result in the immediate halt of transactions either temporarily or permanently. Provided that PEXX has taken reasonable commercial and operational measures to prevent such events in technical systems controlled by us, PEXX is not and will not be responsible or liable for any loss or damage of any kind incurred by you as a result of cyber-attacks, operational or technical difficulties or suspensions of transactions.

10. Further information is available on the Platform and in our Frequently Asked Questions (FAQs) at https://faq.pexx.com

Complaints

11. If you are not satisfied with our Service, you can register a complaint directly with PEXX’s Complaints Officer in the first instance please email us at support@pexx.com
12. We will investigate your complaint and will aim to respond to you as soon as possible or within 30 days following receipt of the complaint.

16. Contact Us

If you have any queries, you may contact us by email at legal@pexx.com.