This Poloniex Futures Services Agreement (this "Agreement") shall apply to all Futures Accounts opened and maintained with Poloniex as well as all Futures Trading Services provided by Poloniex to you (as each term is defined below). If any Futures Account is opened or maintained subject to some other terms ("Other Agreement"), then, unless otherwise expressly stated, this Agreement shall be deemed supplemental to such Other Agreement. Your access to and use of the Futures Trading Services shall constitute your agreement to the terms hereof. 

 

All capitalized terms and references used in this Agreement that are defined and construed in the Poloniex User Agreement (the "User Agreement") but are not defined or construed in this Agreement shall have the same meaning and construction as the terms in the User Agreement. 

 

The terms in this Agreement shall be equally effective as those in the User Agreement. In the event of any conflict or inconsistency between the terms in this Agreement and the User Agreement, the terms in this Agreement shall prevail. 

 

1. Definitions and Interpretation

1.1. The following definitions are applicable to the terms of this Agreement.

"Applicable Law" means all relevant or applicable statutes, laws, rules, regulations, notices, orders, rulings, directives, notices, guidance, and interpretations (whether issued by governmental agencies, regulatory or other bodies, or established by Poloniex as a member of an autonomous organization, or subject to compliance by Poloniex or related Poloniex accounts, services, futures accounts, or transactions).

 

"USDS-M Futures" means futures contracts that are quoted, margined and settled in stablecoins including Tether (USDT) and any other stablecoins that Poloniex shall determine from time to time in its sole discretion, and shall not include COIN-M Futures.

"Futures" means USDS-M Futures or any other futures contracts that Poloniex may allow at its sole discretion to be traded on the Platform.

 

"Futures Account" means an account maintained or to be maintained by Poloniex for you for the purpose of receiving the Futures Trading Services.

 

"Platform" means the digital platform made accessible to you via any website, page, feature, or content owned or operated by Poloniex, any mobile application developed or provided by Poloniex or any API made available to you or third-party applications relying on such an API, in each case that enables you to use or otherwise access the Poloniex Services, or by such other means as Poloniex may prescribe from time to time for the use of Poloniex Services.

 

"Initial Margin", in respect of a Transaction, shall be the minimum amount of Margin, which Poloniex may determine from time to time in its sole discretion, required to be deposited in your Futures Account in order to open a leveraged position in respect of that Transaction.

 

"Liquidation Price" means the Mark Price at which Liquidation occurs. For the avoidance of doubt, the Liquidation Price as quoted by Poloniex on the Platform is for reference only and shall not be binding on Poloniex.

 

"Loss" means any and all loss, damage, costs, charges, and/or expenses of whatsoever nature and howsoever arising, including but not limited to legal fees on a full indemnity basis, cost of funding and loss or cost incurred as a result of the termination, liquidation, or re-establishment of any hedge or related trading position, loss of profit, loss of revenue, loss of opportunity, and consequential, unforeseeable, special or indirect damages or expenses.

 

"Maintenance Margin", in respect of a Transaction, shall be the amount of Margin, which Poloniex may determine from time to time in its sole discretion, required to keep the relevant leveraged position in respect of the applicable Transactions open.

 

"Manifest Error" means any error, omission, or misquote (whether an error of Poloniex or any third party) which is manifest or palpable, including any misquote by any representative of Poloniex taking into account the current market and currently advertised quotes, or any error or lack of clarity of any information, source, commentator, official, official result, or pronunciation. The fact that you may have entered into, or refrained from entering into, a corresponding financial commitment, contract, or trade depending on a Transaction entered into through the Futures Trading Services (or that you have suffered or may suffer any loss whether direct, indirect, consequential or otherwise) is deemed as an irrelevant factor and shall not be taken into account in determining whether a situation amounts to a Manifest Error.

 

"Margin", in respect of Transactions, means any digital assets and/or digital currencies, of the type that Poloniex has specified it accepts to satisfy margin requirements, that are deposited with, held by, or on behalf of Poloniex in your Futures Account as security or credit support for your obligations under any Transaction.

 

"Margin Call" means the request issued by Poloniex to you to top up any shortfall of collateral or Margin (as the case may be) in the Futures Account in order to satisfy Initial Margin and/or Maintenance Margin requirements from time to time.

 

"Order" means any offer to enter into a Transaction, or any of your instruction, request, application, or order in relation to the Futures Trading Services (including but not limited to limit orders, market orders, and conditional orders) in whatever form and howsoever sent, given, or transmitted by you or on your behalf to Poloniex or which Poloniex reasonably believes to have been sent, given, or transmitted by you or on your behalf, including any instruction, request or order to revoke, ignore, or vary any previous offer, instruction, request, or order.

 

"Transaction" means any transactions in respect of Futures that Poloniex may from time to time permit to be carried out with respect to your Futures Account.

 

1.2. The headings are inserted for convenience only and shall not affect the construction of this Agreement. Expressions in the singular form shall include the plural and vice versa, and all references to the masculine genders shall include the female and neuter genders and vice versa.

 

1.3. The terms "include" or "including" shall be deemed to be followed by "without limitation" or "but not limited to" whether or not they are followed by such phrases, and "otherwise" shall not be construed as limited by words with which it is associated.

 

2. Futures Orders

2.1. To enter into a Transaction, provide any instructions with respect to a Transaction, or close out any open position with respect to a Transaction, you may place a relevant Order with Poloniex through the use of the Platform.

 

2.2. In the event that Poloniex assumes the role of the counterparty to any Transaction, Poloniex shall be entitled to all gains, profits and benefits derived from such Transaction.

 

2.3. Nothing in this Agreement or otherwise obliges Poloniex to accept any Order or enter into any Transaction with you, and Poloniex may refuse to enter into any Transaction, accept or otherwise act on any Order without giving any reason or any notice to you thereof. Poloniex has the right but not any obligation to verify and acknowledge the identity of the person who initiates the Order or the origin of the Order, and Poloniex shall be entitled to rely and act upon such Order unless and until Poloniex seeks to verify the matter be recognized. 

 

2.4. Where any Order is ambiguous or inconsistent with any other Order, Poloniex shall be entitled to rely and act upon such Order in accordance with any reasonable interpretation thereof. 

 

2.5. Poloniex shall act solely on Orders for any Poloniex Account and Futures Account or any portion of digital assets and digital currencies held in such Account. Poloniex will not act in accordance with any Order which purports to dispose of or deal with any digital assets which are in fact not held in any Poloniex Account and/or Futures Account.

 

2.6. Poloniex shall not be liable for any Loss or other liability whatsoever incurred by you or any third party which arises from or in connection with any failure by Poloniex to comply with any of your Orders or from any exercise by Poloniex of (or failure to exercise) any discretion, power or authority conferred upon Poloniex under this Agreement. Further, Poloniex shall not be liable for any Loss or other liability whatsoever incurred by you or any third party which arises from or in connection with any failure or delay in the transmission of, or any wrongful interception of, any Order submitted through any equipment or system, including any equipment or system owned and/or operated by or on behalf of Poloniex. 

 

2.7. You acknowledge and consent to the right of Poloniex to aggregate your Orders with the Orders of other clients of the Futures Trading Services, whether or not within another jurisdiction. The allotment or distribution of any digital assets pursuant to such Order aggregation to or amongst you and other clients of the Futures Trading Services shall be at Poloniex's sole and absolute discretion. You further acknowledge and agree that Poloniex may enter into Transactions as principal and, in circumstances where Poloniex acts as principal to any Transaction, that Poloniex may also take such actions as Poloniex may be reasonably required in order to limit its liability/exposure under such Transaction.

3. Margin

3.1. You shall deposit and maintain in your Futures Account, and/or otherwise provide to Poloniex, Margin in such form and amounts, at such times and in respect of such Futures Account as Poloniex may from time to time in its sole and absolute discretion require, whether or not such requirement of Poloniex is identical to, reflective, or greater than applicable collateral or margin requirements of any governmental body or self-regulatory organization in any jurisdiction (including any exchange) which is required to be maintained by Poloniex and/or you.

 

3.2. A list of digital assets approved by Poloniex to be eligible as margin will be prescribed by Poloniex and certain digital assets may only be valued as margin on a discounted basis. Poloniex may amend that list from time to time in its sole discretion and may, but shall not be obliged to, notify you of any such changes to the list of eligible digital assets or discounts applied to the valuation thereof prior to those changes taking effect.

 

3.3. The value of any Margin shall be as determined by Poloniex in its sole and absolute discretion.

 

3.4. Where applicable, you acknowledge and agree that you shall satisfy Initial Margin and Maintenance Margin requirements on your Futures Account on an isolated basis and that the margin for each open position shall be deemed an isolated margin for the purposes of this Agreement. Upon specific instructions provided by you, Poloniex may (but is not obliged to) transfer all or part of the Margin held by Poloniex for you in respect of any Futures Account to any other Poloniex Account or to utilize such Margin for any purposes as required by you with respect to any other Services offered by Poloniex outside of the Futures Trading Services.

 

3.5. Poloniex may establish margin requirements in respect of its margin trading services, and such margin requirements will be set out in the Futures Trading Rules. Poloniex may, in its sole and absolute discretion, with or without notice to you, vary the margin requirements for any Futures Account and/or type of Transaction at any time and by any level and may also stipulate that such margin requirements shall apply to existing positions as well as new positions in the Transactions affected by such change. Any written notice from Poloniex stating that any such circumstance has arisen shall be deemed to be a conclusive decision of that event. You acknowledge that Poloniex may, under certain market conditions, effect an immediate change in margin requirements and/or require additional Margin to be deposited immediately or within a specified period of time which may be less than 24 hours, and you waive any right to object on the grounds that such requirement is unreasonable. No previous margin requirements shall set a precedent for or bind Poloniex.

 

3.6. If at any time Poloniex determines that additional Margin is required, you shall deposit with Poloniex such additional Margin immediately upon demand, provided that, notwithstanding any such demand for additional Margin, Poloniex may at any time exercise its rights under Clause 6 of this Agreement. In making such a decision in respect of the Margin provided for any Futures Account, Poloniex shall not be required to take into consideration any Margin held by Poloniex for you in respect of any other Poloniex Account.

 

3.7. You acknowledge that Margin may be held and used to secure the performance of your obligations as well as for such other purposes as the Applicable Laws may permit or stipulate for the relevant Transactions.

 

3.8. All Margin shall be held by Poloniex, notwithstanding any provision or instructions to the contrary, as continuing security and shall be subject to a general lien and right of set-off in favor of Poloniex for any and all of your obligations, liabilities, or monies whatsoever at any time now or hereafter owing, due, incurred or payable by you to Poloniex under this Agreement or otherwise, whether present or future, actual or contingent, solely or jointly or whether as principal or surety, and Poloniex may realize any of your Margin as provided for in this Agreement.

 

3.9. Poloniex has the right to deposit, pledge, re-pledge, stake, invest, or lend any Margin in any form or otherwise specified by Poloniex and is under no obligation to notify you of the foregoing or to explain to you any possible consequences arising therefrom including interest, income, or benefit. No interest shall be paid on any type of Margin deposited by you with Poloniex and you acknowledge and agree that interest earned on the Margin deposited under this Agreement may be retained by Poloniex for its own account and benefit. Poloniex shall at no time be required to deliver to you the identical property delivered or otherwise transferred to Poloniex as Margin for the Futures Account but only property of substantially the same kind and amount, subject to adjustments for quantity and quality variations at the market price prevailing at the time of such delivery. Poloniex shall not be liable for any Loss of Margin arising directly or indirectly from the closure, bankruptcy, insolvency, liquidation, takeover, or any other event of a similar nature of any broker, market association, or institution that stores or stakes the Margins.

 

3.10. You shall at your own cost and at Poloniex's request, execute and do all such deeds, acts and things (including but not limited to the performance of such further acts or the execution and delivery of any additional instruments or documents) as Poloniex may require for the purposes of this Agreement, including but not limited to perfecting Poloniex's rights to the Margin provided by you.

 

3.11. Subject to Applicable Law, Poloniex may deposit in Poloniex's general account or any other account any of your Margin and may commingle your Margin with the digital assets, currencies, and properties of Poloniex or other clients of the Futures Trading Services.

 

3.12. All Margin shall be held subject to Poloniex's general rights under Applicable Law.

 

4. Margin Ratio, Margin Call, and Liquidation

4.1. Without prejudice to the generality of this Clause 4 of this Agreement, unless otherwise directed by Poloniex:

(a) you agree to deposit the required Initial Margin to your Futures Account before entering into any Transaction; 

 

(b) you agree to maintain sufficient Maintenance Margin at all times for outstanding Transactions. If the margin balance of your Futures Account falls below the required Maintenance Margin, you agree to transfer additional Margin to Poloniex whether or not a Margin Call has been made by Poloniex to restore the required Maintenance Margin for the outstanding Transactions; 

 

(c) you acknowledge that Poloniex calculates the profit and loss of your open positions in Futures based on a proprietary model and that Poloniex has the sole discretion to choose and amend the specification of such proprietary model in order to reflect Poloniex's perspective of the fair market price of the Futures at the relevant time;

 

(d) you acknowledge that if with respect to open positions maintained in Futures, the margin balance of your Futures Account falls below the applicable liquidation level such that the Mark Price of the relevant Futures is equal to [or greater] than the Liquidation Price, Poloniex may and shall be fully entitled (but shall not be obliged) to sell or dispose of any or all Margin in your Futures Account in order to satisfy the margin requirements prescribed by Poloniex with respect to such Futures, whether or not a Margin Call has been made (“Liquidation”), and Poloniex is not required to provide notice before commencing Liquidation;

 

(e) you acknowledge and agree that it is your sole responsibility to monitor the margin balance of your Futures Account and applicable margin requirements (including Initial Margin, Maintenance Margin, Mark Price, and Liquidation Price) of your Futures Account from time to time. All open positions of the Futures Account shall be marked to market daily, or at more frequent intervals as Poloniex may determine in its sole discretion;

 

(f) you must meet any Margin Call made by Poloniex by transferring additional Margin from your Poloniex Account(s) to your Futures Account.

 

4.2. As digital asset markets are open 24 hours a day, 7 days a week, Margin Calls and Liquidations may occur at any time, including outside of normal business hours. You further agree and acknowledge that the prices of digital assets are volatile and thus may decline quickly.

 

4.3. Poloniex shall be entitled, but shall have no obligation, to make Margin Calls to you in respect of your Transactions. A Margin Call may be made through the Platform, by email, or by any other means deemed appropriate by Poloniex. Without prejudice to the generality of the foregoing, you acknowledge and agree that Poloniex may contact you at any telephone number or email you have provided to Poloniex for any Margin Calls, and you shall keep yourself accessible at all times. If Poloniex fails to contact you at any such telephone number or email address, you shall be deemed in default and Poloniex may exercise its rights set forth in Clause 6 (Default and Termination) at any time. For the avoidance of doubt, Poloniex has the right (but not the obligation) to issue Margin Calls to you on any of your Futures Accounts.

 

4.4. Failure of Poloniex to exercise any or all of its rights under this Clause 5 shall not constitute a waiver of its rights to do so at any time thereafter, nor shall Poloniex be subject to any liability to you for its acts or its failure to act so.

 

5. Fees, Interest, and Charges

 

5.1. You shall promptly pay all of Poloniex's fees and/or other charges at such rates and in such manner as Poloniex may impose and stipulate from time to time with respect to the execution and/or performance of any Transaction or otherwise for the maintenance of your Futures Account or the provision of any service or Cross Collateral Loan to you or in connection with your Futures Account. Poloniex reserves the right from time to time in its sole and absolute discretion to notice to you its decision to vary the rates of fees, and/or charges or impose other fees. Fees and other charges may be quoted by request, posted on the Platform, individually notified via email, or communicated via any other modes as Poloniex in its sole and absolute discretion may deem fit. It is your responsibility to ensure that you are aware of the current applicable fees, charges, and rates. 

 

5.2. You shall make payment to Poloniex of any outstanding amount owed to Poloniex (including but not limited to any outstanding fees and charges) when due or otherwise upon demand by Poloniex.

 

5.3. All fees, charges, or other amounts owed by you to Poloniex may be settled by Poloniex at its sole and absolute discretion on the due day by debiting your Poloniex Account (including your Futures Account) with the relevant amount payable by you. In the event that there are insufficient digital assets in your Poloniex Account (including your Futures Account), you acknowledge that any amount due and payable from you under this Clause is a debt immediately due and owed by you to Poloniex.

 

5.4. All amounts owed to Poloniex shall be settled in such digital assets as solely determined by Poloniex from time to time and shall be free of deduction or withholdings (if applicable). If you are required to effect such deductions or withholdings, the amount due to Poloniex shall be increased by such amount as shall result in Poloniex receiving an amount equal to the amount Poloniex should have received in the absence of such deduction or withholding.

 

5.5. If for any reason Poloniex cannot effect payment or repayment to you in a particular digital asset in which payment or repayment is due, Poloniex may affect payment or repayment in an equivalent amount of any other digital assets selected by Poloniex based on a rate of exchange solely determined by Poloniex in respect thereof at the relevant time.

 

5.6. All fees and other charges of Poloniex are exclusive of any goods and services tax or any other applicable sales tax which shall be borne and separately charged to you. 

 

6. Default and Termination

6.1. A “Default” shall be deemed to occur if:

(a) your Maintenance Margin with respect to your Futures Account falls below the applicable Margin Requirement as respectively prescribed by Poloniex in the applicable Futures Trading Rules;

 

(b) any representation, warranty, agreement, or undertaking made by you to Poloniex, whether under or in connection with this Agreement (including but not limited to Clause 8 of this Agreement, the Futures Trading Rules, 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 Poloniex of the true position as soon as reasonably practicable;

 

(c) you have failed to comply with or perform any of your obligations hereunder or in respect of your Futures Account, any Transaction or under the Futures Trading Rules or the Terms of Use (including but not limited to 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 in respect of your Futures Account, or any Transaction), or have violated or are being investigated by the relevant authorities for violation of any applicable law;

 

(d) you fail to promptly provide Poloniex with any documentation requested for the purposes of “Know Your Customer” checks, including but not limited to any documentation required for the purposes of verifying your identity, place of address, legal authority/capacity, and client classification status, and/or you fail to provide any information and/or documents requested by Poloniex for the purposes of credit checks or any other internal assessments conducted by Poloniex; 

 

(e) (in the event that you are an individual), you become deceased, bankrupt, or mentally disabled, 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; 

(f) (in the event that you are acting on behalf of a partnership) any of the partners thereof shall become deceased, bankrupt, or mentally disabled, 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 or change the partnership; 

 

(g) (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; 

 

(h) any investigation, claim, action, or proceeding of any nature is commenced against you (including but not limited to investigation into suspected market abuse, manipulation, or other criminal conduct), or steps are taken by any person to enforce any security interest against you; 

 

(i) 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; 

 

(j) Poloniex has reasonable concerns in relation to your creditworthiness, financial status, or verification of your identity; 

 

(k) Poloniex determines in its sole and absolute discretion that you have acted in an abusive manner to any representative of Poloniex; 

 

(l) unless alternative arrangements have been made between you and Poloniex with reference to a specific absence by you, at any time Poloniex is not able to contact you within 24 hours using reasonable means and contact points known to Poloniex; 

 

(m) Poloniex believes, in good faith, that it should take action in order to preserve its rights or interests under any Poloniex Account or Futures Account or under its relationship with you; 

 

(n) Poloniex reasonably believes that any of the circumstances set out under Clauses 6.1(a) to 6.1(m) above is likely to happen and also reasonably believes that any action described in Clause 6.2 below is necessary, desirable, or expedient to protect its interests or the interests of its other clients; or

 

(o) a credible allegation of fraud, misconduct, embezzlement, money laundering, insider trading, market manipulation, or other material illegality, breach of regulation, or impropriety is made against you, which, in good faith and commercially reasonable business judgment of Poloniex, may reasonably result in reputational harm to Poloniex or compromise the integrity of the markets maintained by Poloniex.

 

6.2. Without any prejudice to any other right of Poloniex hereunder or otherwise at law, in the event of a Default, Poloniex may (but is not obliged to) immediately or any time thereafter whilst the Default is continuing, do any one or more of the following without prior notice:

(a) suspend (indefinitely or otherwise), cancel, or terminate any Poloniex Account, Futures Account, any services provided to you, and/or Poloniex's broader relationship with you or prohibit you from opening any Poloniex Account and/or Futures Account;

 

(b) liquidate, accelerate, and/or close out any outstanding Transaction (including any Transaction yet to be settled on the date on which Poloniex terminates such Transaction) 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;

 

(c) at such times and manner as Poloniex may reasonably determine based on, but not limited to, market conditions and portfolio health, sell or otherwise transfer any digital assets or other property which Poloniex may hold for you or which has been transferred to Poloniex by you and apply the proceeds to the discharge of your obligations, subject to Poloniex's rights to set-off any net amounts owed as between you and Poloniex;

(d) vary the applicable margin requirement or liquidate or exercise its power to sell the Margin or collateral or part thereof at a price that Poloniex deems appropriate in the circumstances;

 

(e) apply any amounts of whatsoever nature standing to your credit against any amounts which you owe Poloniex (of whatsoever nature and howsoever arising, including any contingent amounts), or generally to exercise Poloniex's rights of netting and set-off as set out under this Agreement or otherwise under the User Agreement or Applicable Laws;

 

(f) demand any shortfall after the application of Clause 6.2(e) 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 Poloniex;

 

(g) do or omit to do anything which Poloniex reasonably believes to be necessary, desirable, or expedient to protect Poloniex or its other clients; and/or

 

(h) exercise such other authority and powers that may have been conferred upon Poloniex by this Agreement, the Futures Trading Rules, and/or the Users Agreement.

 

6.3. To the extent permitted under Applicable Laws, you will be responsible for the reasonable costs and expenses of collecting any unpaid deficiency in your Futures Account including but not limited to legal counsel's fees incurred and payable or paid by Poloniex.

 

7. Statements and Confirmations

7.1. Upon your request, Poloniex may make statements and/or confirmations with respect to your Futures Account and/or any Transactions entered into by you or on your behalf available to you through the Platform. If no objection is raised by you within 7 days of the date of the statement, conformation or any other relevant Futures Account information (or any other time period set out in such information), such information shall be deemed conclusive and binding against you, and you shall not be entitled to object thereto. Notwithstanding the foregoing, Poloniex may at any time in its sole discretion choose to rectify any error in any such information and may demand immediate repayment from you of any digital assets erroneously transferred to you as a result of any such error. Any and all objections by you shall not be valid unless accompanied by supporting evidence.

 

7.2. You shall immediately notify Poloniex if any futures account information is not received by you within the usual time frames provided in the ordinary course of business or your use of Poloniex's services. 

 

7.3. Subject to the provisions of this Clause, the Futures Account information provided that does not accurately reflect the relevant Transaction entered into via the relevant Platform: 

(a) does not affect the validity of the relevant Transaction; and

(b) if there is a Manifest Error, does not entitle you to enforce whatever is inaccurately recorded in such futures account information; 

 

7.4. You hereby authorize Poloniex to cancel or terminate any Transaction involving or deriving from a Manifest Error or to amend the details of such Transaction to reflect which Poloniex considers in its sole and absolute discretion acting in good faith to be the correct or fair details of such a Transaction absent such Manifest Error. 

 

7.5. Without prejudice to the generality of the other terms in this Agreement, and in the absence of fraud or bad faith, Poloniex shall in no circumstances be liable to you for any Loss or demand of whatsoever nature you may suffer or incur in connection with any Manifest Error howsoever arising, whether direct or indirect, special or consequential, including, but not limited to, loss of profit, loss of opportunity, or even if Poloniex has been advised of the possibility of the same arising or that the same were reasonably foreseeable. You shall draw attention in particular to Clause 10 of this Agreement.

 

8. Your Representations, Warranties, Agreement, and Undertakings

8.1. You represent, warrant, agree, and undertake that:

(a) you have full capacity and authority to accept and agree to the terms of this Agreement, to open, maintain, and/or continue to maintain all Futures Accounts with Poloniex from time to time, and to issue Orders to Poloniex in connection therewith;

 

(b) you have read and understood the Futures Trading Rules and accepted the conditions and limitations for each and every service available to you in connection with the Futures Trading Services. In particular, you understand that the level of services available to you will vary depending on whether you are trading or intend to trade on the basis of “cross margin mode” or “isolated margin mode”. You further expressly confirm that you have read and understood each and every applicable item of the Futures Trading Rules and accepted the conditions and limitations of each service provided to you in connection with the Futures Trading Rules; 

 

(c) you have all authorizations, consents, licenses, or approvals (whether or not in accordance with Applicable Laws) necessary to accept and agree to these terms and conditions to open, maintain, and/or continue to open and/or maintain all Futures Accounts with Poloniex and to issue Orders to Poloniex in connection therewith; 

 

(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), which prohibits you from establishing a relationship with Poloniex, in dealing in any of the digital assets traded in connection with your Futures Account, and you shall promptly notify Poloniex if you become so employed; 

 

(e) you do not reside in any of the prohibited countries and territories as per set out in the User Agreement, or any other jurisdictions whose residents Poloniex deems from time to time to be prohibited from using the services provided under this Agreement;

 

(f) unless you specifically notify Poloniex and Poloniex agrees, no person other than you has an interest in your Futures Account;

 

(g) except with the express written consent of Poloniex and except for any security or encumbrance created hereunder, no person has or will have any security or other encumbrance over your Futures Account and/or any digital asset held in your Futures Account;

 

(h) any Order placed or any other dealing with respect to your Futures 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 to achieve your financial objectives;

 

(i) Poloniex 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 monitor the application of any funds delivered by you in connection with any Futures Account; 

 

(j) any person(s) empowered to act on your behalf have been duly authorized;

 

(k) you have complied and shall comply with all Applicable Laws in all jurisdictions relevant to your Futures Account, any Transaction, or other services or facilities provided or made available by Poloniex to you;

 

(l) all information and/or documents provided by you or on your behalf to Poloniex 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 Poloniex which may have a material bearing on Poloniex's decision to provide or continue to provide any of the services under this Agreement;

 

(m) you shall not knowingly or recklessly permit the use of Poloniex's services, facilities, or membership in a manner which is in the opinion of Poloniex liable to bring Poloniex into disrepute, impair the dignity or degrade the good name of any of the foregoing. You shall not knowingly or recklessly create, 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 Poloniex or any of its other users.

 

8.2. The above representations, warranties, agreements, and undertakings shall be deemed repeated whenever you give Orders to Poloniex, enter into any Transactions, or establish a Futures Account with Poloniex.

 

9. General Indemnity

 

9.1. In addition and without prejudice to any other rights or remedies (legal or otherwise) of Poloniex, you shall at all times indemnify and hold Poloniex harmless from (directly or indirectly) any and all losses incurred as a result of the following factors:

(a) any Default or any failure by you to comply with any provision of this Agreement or Applicable Laws;

(b) Poloniex acting in accordance with your Orders or in any manner permitted under this Agreement and/or the User Agreement;

(c) any changes in any Applicable Laws; and/or

(d) any act done or caused to be done by Poloniex in connection with or referable to this Agreement, the User Agreement, or your Futures Account.

 

9.2. You shall further indemnify, keep indemnified, and hold harmless Poloniex 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 9.1(a) to 9.1(d) above. You shall provide any and all reasonable assistance to Poloniex in connection with such investigations or proceedings.

 

10. General Exclusion

10.1. Futures trading is not suitable for everyone. You should examine your investment objectives, financial resources, and risk tolerance to determine whether borrowing against your assets held with Poloniex is appropriate for you. You acknowledge that futures trading with respect to digital assets is a highly speculative activity involving highly leveraged and rapidly fluctuating markets. You further understand and accept the significant risks associated with the use of Margin, collateral, and leverage and have determined that the use of Margin, collateral, and/or leverage is consistent with your investment objectives. Despite such risks, you acknowledge, understand, and agree that you are willing and able to assume the financial risks and other hazards of futures trading with respect to digital assets and agree that you will in no manner hold Poloniex responsible for Losses incurred by you under or in connection with this Agreement, the Futures Trading Rules, the User Agreement, or otherwise. 

 

10.2. In addition and without prejudice to any other right or remedy which Poloniex may have under this Agreement, the User Agreement, Applicable Laws, or otherwise, so long as Poloniex acts in good faith, it shall not be liable to you in any respect for any Loss suffered by you, including but not limited to 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, the Futures Trading Rules, and/or the User Agreement. Poloniex shall only be liable to you if Poloniex is proven to have been fraudulent or to have acted in wilful default.

 

10.3. Without prejudice to the generality of the foregoing, Poloniex shall not, in any event, be liable to you for any indirect or consequential Loss or for any anticipated profits or punitive damages.

 

11. Applicable Laws

11.1. Your relationship with Poloniex, the operation of your Futures Account, and the implementation of any transaction shall be subject at all times to the Applicable Laws. Poloniex may take or refrain from taking any action whatsoever, and you shall comply with, and shall do all that is required by Poloniex in order to procure or ensure compliance with Applicable Laws. You agree that Poloniex shall not be liable to you as a result of any action taken by Poloniex to comply with Applicable Laws.

 

12. Technology Disclaimer

12.1. For trading purposes, Poloniex may provide or make available for your access and use the Platform consisting of trading systems, platforms, and/or related software and technology ("Trading Systems") to enable, assist and/or facilitate you to place orders, enter into and/or settle transactions. These Trading Systems may be proprietary to Poloniex or may be licensed to Poloniex from a third-party licensor ("Third-Party Licensor") for your access and/or use. In addition to the terms of this Agreement, you agree and undertake to abide by any and all terms and conditions that Poloniex and/or such Third-Party Licensors may specify or prescribe as applicable to their provision and/or your access and/or use of such Trading Systems.

 

12.2. You acknowledge and agree that access and use of the Platform is provided on an “as is'' and “as available” basis and Poloniex makes no representation or warranty of any kind, express or implied, with respect to the functionality, operation, content or otherwise of the Platform and does not represent or warrant that the Platform or any part thereof is free from defect, failure or interruption or that they are fit for your purposes or any particular purpose and, without prejudice to the foregoing, Poloniex shall not in any event be liable for any system error, faults, or failure of the Platform whatsoever and howsoever arising or caused other than by fraud or wilful default of Poloniex. 

 

12.3. To the extent that you may use third party technology, web applications, application program interfaces, software, software codes, programs, protocols and/or other third party resources (the “Third Party Applications”), whether independently identified and selected, sourced or used by you, made available via Poloniex or otherwise, to provide connectivity to the Platform offered or made available by Poloniex to place Orders, enter into and/or settle Transactions, you acknowledge and accept that you are solely responsible for and will bear all risks that such Third Party Applications may not be compatible or function appropriately with the Platform.

 

12.4. Poloniex disclaims and excludes unless expressly prohibited by Applicable Laws, all terms and conditions and warranties implied by statute or common law in relation to the Platform including, but not limited to, merchantability, satisfactory quality, suitability, or fitness for any particular purpose. Technical difficulties may be encountered in connection with the Platform. Such difficulties may include, but not be limited to, malfunctions, failures, delays, hardware damages, or software erosion. Such difficulties may be the result of hardware, software, or communication link inadequacies or any other cause and may lead to possible economic and/or data loss. In the absence of fraud or wilful default, in no event will Poloniex, any of its related companies or affiliates, or any of their respective officials, employees, agents, representatives, or contractors be liable for any loss, cost, claim, demand, expense or damage including but not limited to loss of profit, loss of revenue, loss of opportunity, consequential, unforeseeable, special or indirect damages or expenses which arise directly or indirectly as a result of accessing or using the Platform, even if Poloniex has been advised of the possibility of the same arising or that the same were reasonably foreseeable.

 

12.5. You acknowledge that Poloniex may use or provide technology and/or electronic services, or make available technology and/or electronic services provided by third parties for your use in connection with the Futures Trading Services and any Order placed or Transaction made by you with Poloniex. Such technology and electronic services may include but are not limited to trading technology, web applications, application program interfaces, software, software codes, programs, protocols, and displays (collectively, the “Technology”) for trading, analyzing trades and markets, constructing automated trading systems, and/or assisting or facilitating the provision, availability or connectivity of Platform provided or made available by Poloniex to you for access or use. Poloniex provides the Technology "as is", without any warranties of merchantability, fitness for a particular purpose, or other express or implied warranties. You acknowledge and agree that none of Poloniex, any Third-Party Licensors, or any other third-party Technology providers shall be responsible for the operation or performance of any automated trading system developed with Technology or for any errors, malfunctions or breakdown of, or inability to access, any Technology or Platform or for any delays or interruptions in the transmission of orders due to breakdown, excessive call volume, or failure of transmission or communication equipment on the internet or otherwise, including but not limited to communications problems, computer software or hardware breakdowns, malfunctioning, and any and all problems or glitches associated with computer or any other technical causes.

 

12.6. You acknowledge that certain databases, programs, protocols, displays, and manuals that may form part of the Technology (the “Proprietary Information”) are proprietary and unique to Poloniex, Third-Party Licensors, or third-party Technology providers, as to which copyright, patent, or other proprietary rights may be held by Poloniex, such Third-Party Licensors, third-party Technology providers or third-parties from whom such Third-Party Licensors or third-party Technology providers have licensed or otherwise acquired such rights. You agree to take or cause to be taken any and all necessary precautions to maintain the confidentiality of such Proprietary Information, to comply with all copyright, trademark, trade secret, patent, and other laws necessary to protect all rights in the Proprietary Information as advised by Poloniex and agree not to remove, conceal or obliterate any copyright or other proprietary notice, which may include references to Poloniex, such Third-Party Licensors or such other third-parties’ ownership, as included in the Technology.

 

12.7. You acknowledge, accept, and agree that Poloniex, any Third-Party Licensors, or any other third-party Technology providers and their respective directors, officials, employees, agents, contractors, and/or subcontractors shall not be held liable for any Loss, damage, cost or expense (including the loss of data) suffered or incurred by you as a result arising out of or in connection with any errors, malfunctions, breakdowns, inability to access, faults, interruptions, or delays, provided however that this limitation does not apply to any loss, cost or damage suffered or incurred by you caused by fraud or wilful default of Poloniex in the performance of its duties imposed by this Agreement or Applicable Laws. Each of Poloniex, such Third-Party Licensors, and such third-party Technology providers make no warranties, conditions, guarantees, or representations as to the satisfactory quality, fitness for a particular purpose or other warranties, conditions, guarantees, or representations, whether express or implied, in law or in fact, oral or in writing, except as expressly stated in the terms of this Agreement. Under no circumstances shall Poloniex, such Third-Party Licensors, and/or such third-party Technology providers be liable for any loss, damage, cost, or expense of any nature whatsoever incurred or suffered by you of an indirect, incidental, special, or consequential nature (including but not limited to any economic loss or other loss of turnover, profits, business, or goodwill) arising from or in connection with the provision or availability of any Technology or Platform.

 

12.8. Without prejudice to the generality of the foregoing, you agree not to bring any legal action, whether in tort, contract, or otherwise, against Poloniex, any Third-Party Licensors, or any other third-party Technology providers alleging damages for the failure by Poloniex to perform or otherwise settle a Transaction entered by you using Technology.

 

13. Languages

This Agreement is written in English. For the convenience of users, this Agreement may be translated into different languages, which shall be used for reference purposes only. The English version shall prevail in case of any inconsistency among different languages.