TERMS & CONDITIONS:
Date of Last Update: January 20, 2021
1. Acceptance of Terms
1.1. Welcome to TheXchange.
1.3. The Terms constitute a legally binding agreement between you and TheXchange Pte. Ltd., which is a private company limited by shares, which is incorporated under the laws of Singapore. For further information on TheXchange Pte. Ltd, and its operating subsidiaries, please see the Company Details page on TheXchange website. For the pruposes of these Terms, any reference to “we” “us” “our” “TheXchange” and/or any similar terms shall be construed as reference to TheXchange Pte. Ltd.
1.4. By registering for and opening an account with TheXchange, you unconditionally accept these Terms and agree to be bound by and act in accordance with them. You also accept and agree that you are solely responsible for understanding and complying with all laws, rules, regulations and requirements of the jurisdiction in which you live that may be applicable to your use of TheXchange website and/or your account(s) with TheXchange, including but not limited to, those related to export or import activity, taxes or foreign currency transactions. Depending on your country of residence, you may not be able to use all the functions of TheXchange.
1.5. TheXchange reserves the right, in its sole discretion, to amend and/or replace any of, or the whole of, the Terms. Such amendments shall supersede and replace any previous Terms and shall be made available on the TheXchange website. Each time a user accesses the Website and/or uses their account with TheXchange, or its services, the user shall be deemed to have consented, by such access and/or use, to the Terms, as amended and/or replaced by TheXchange from time to time. If you are not satisfied with the amended Terms, you should refrain from using TheXchange
1.6. We will however give you prior notice where we have collected personal information from you and the purpose for which we collected that information, is affected by the intended amendment.
1.7. If there is anything in these Terms that you do not understand then please contact us as soon as possible.
1.8. By opening an account with TheXchange, you accept and agree that TheXchange may, without further notice and in its sole discretion, terminate, suspend or restrict the account of any customer who uses, or who we reasonably suspect may be using, the TheXchange or any TheXchange Account in a manner that is inconsistent with the letter or spirit of these Terms.
2. Content of TheXchange
2.1. TheXchange reserves the right to make improvements, to change or to discontinue, without notice, any aspect or feature of the Website and any information or content on the Website.
2.2. TheXchange reserves the right to change and amend the products, prices and rates quoted on this Website from time to time without notice.
2.3. TheXchange may use the services of third parties to provide information on the Website. TheXchange has no control over this information and makes no representations or warranties of any nature as to its accuracy, appropriateness or correctness. The user agrees that such information is provided “as is” and that TheXchange and its online partners shall not be liable for any losses or damages that may arise from the user’s reliance on it, howsoever these may arise.
2.4. TheXchange makes no representations or warranties, whether express or implied, as to the accuracy, completeness or reliability of any information, data and/or content on the Website, including without limitation:
2.4.1. TheXchange does not warrant that the Website or information or downloads shall be error-free or that they shall meet any particular criteria of performance or quality. TheXchange expressly disclaims all implied warranties, including without limitation, warranties of merchantability, fit-ness for a particular purpose, non-infringement, compatibility, security and accuracy;
2.4.2. whilst TheXchange has taken reasonable measures to ensure the integrity of the Website and its contents, no warranty, whether express or implied, is given that any files, downloads or applications available via this Website are free of viruses, or any other data or code which has the ability to corrupt, damage or affect the operation of the user’s system; and
2.4.3. TheXchange disclaims any responsibility for the verification of any claims. Information published on this Website may be done so in the format in which TheXchange receives it and statements from external parties are accepted as fact.
3. Linked third party websites and third party content
3.1. TheXchange may provide links to third party websites on the Website. These links are provided to the user for convenience purposes only and TheXchange does not endorse, nor does the inclusion of any link imply TheXchange’s endorsement of, such websites, their owners, licensees or administrators or such websites’ content or security practices and operations.
3.2. While TheXchange tries to provide links only to reputable websites or online partners, TheXchange cannot accept responsibility or liability for the information provided on other websites. Linked websites or pages are not under, nor subject to, the control of TheXchange. TheXchange is not responsible for and gives no warranties or makes any representations in respect of the privacy policies or practices of linked or any third party or advertised websites on the Website.
3.3. You agree that TheXchange shall not be held liable, directly or indirectly, in any way for the content, the use or inability to use or access any linked website or any link(s) contained in a linked website, nor for any loss or damage of any sort incurred as a result of any dealings with, or as the result of the presence of such third party linked websites on the Website. Any dealings that you may have with any linked websites, including advertisers, found on the Website, are solely between you and the third party website.
4. User Verification
4.1. Identification and verification procedures (also known as ‘Know Your Customer’ or ‘KYC’) are required for all Transactions on TheXchange. All existing and new Users of TheXchange must pass the verification procedure. TheXchange reserves the right to limit the Platform functionality to the Users who have not passed verification. If the User refuses to provide required documents and information under KYC, TheXchange reserves the right to immediately terminate the Services provision to the User.
4.2. The User undertakes to provide TheXchange with correct and relevant documents and personal information contained therein. In case the User provides counterfeit documents and false personal information, such behaviour will be interpreted as a fraudulent activity.
4.3. The User hereby authorises TheXchange to, directly or indirectly (through third parties), make any inquiries as we consider it necessary to check the relevance and accuracy of the information provided for verification purposes. Personal Data transferred will be limited to strictly the necessary and with security measures in use to protect the data.
5. Usage restrictions
The user hereby agrees that it shall not itself, nor through a third party:
5.1. copy (other than for backup, archival or disaster recovery purposes), reproduce, translate, adapt, vary, modify, lease, licence, sub-licence, encumber or in any other way deal with any part of the Website for any reason and in any manner, unless it is consistent with the intent and purpose of these Terms;
5.2. decompile, disassemble or reverse engineer any portion of the Website;
5.3. write and/or develop any derivative of the Website or any other software program based on the Website;
5.4. modify or enhance the Website. In the event of a user effecting any modifications or enhancements to the Website in breach of this clause, such modifications and enhancements shall be the property of TheXchange;
5.5. without TheXchange's prior written consent, provide, disclose, divulge or make available to or permit the use of or give access to the Website by persons other than the user;
5.6. remove any identification, trademark, copyright or other notices from the Website;
5.7. post or transmit, by means of reviews, comments, suggestions, ideas, questions or other information through the Website, any content which is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, ob-scene, sexually-explicit, profane or hateful, or racially, ethnically or otherwise objectionable content of any kind; and/or
5.8. notwithstanding anything contained to the contrary in these Terms, use the Website for any purpose other than personal, non-commercial and information purposes.
6.1. In order to ensure the security and reliable operation of the services to all TheXchange's users, TheXchange hereby reserves the right to take whatever action it may deem necessary to preserve the security, integrity and reliability of its network and back-office applications.
6.2. You may not utilise the Website in any manner which may compromise the security of TheXchange's networks or tamper with the Website in any manner whatsoever, which shall include without limitation, gaining or attempting to gain unauthorised access to the Website, or delivering or attempting to deliver any unauthorised, damaging or malicious code to the Website, all of which is expressly prohibited. Any person or entity which does so, or attempts to do so, shall be held criminally liable. Further, should TheXchange suffer any damage or loss, civil damages shall be claimed by TheXchange against the user.
7. Intellectual property rights
7.1. For the purpose of this clause, the following words shall have the following meanings ascribed to them:
7.2. "Intellectual property rights" means all and any of the rights in and to intellectual property of any nature whatsoever owned and/or controlled directly or under licence by TheXchange, now or in the future, including without limitation, TheXchange's rights, title and interest in and to all technology, source code/s, trade secrets, logos, systems, methods, trademarks, trade names, styles, insignia, designs, patents and copyright, and all similar proprietary rights which may subsist in any part of the world, whether globally registered or not.
7.3. All copyright and other intellectual property rights in all content, trademarks, software, data, material, including logos, databases, text, graphics, icons, hyperlinks, confidential information, designs, agreements, and multimedia works, published on or via the Website ("proprietary material"), are the property of, or are licensed to, TheXchange and as such are protected from infringement by local and international legislation and treaties.
7.4. By submitting reviews, comments and/or any other content (other than your personal information) to TheXchange for posting on the Website, you automatically grant TheXchange and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable right and licence to use, reproduce, publish, translate, sub-license, copy and distribute such content in whole or in part worldwide, and to incorporate it in other works in any form, media, or technology now known or hereinafter developed, for the full term of any copyright that may exist in such content. Subject to this licence, you retain any and all rights that may exist in such content.
7.5. All rights not expressly granted are reserved and no right, title or interest in any proprietary material or information contained in this Website is granted to you.
7.6. Except with TheXchange's express written permission, no proprietary material from this Website may be copied or retransmitted.
7.7. Irrespective of the existence of copyright, the user acknowledges that TheXchange is the proprietor of all material on the Website (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that the user has no right, title or interest in any such material.
7.8. TheXchange authorises you only to view, copy, temporarily download to a local drive and to print the content of this Website, or any part thereof, provided that such content is used for personal purposes and for information purposes only, and such content is used for non-commercial purposes.
8. Risk, limitation of liability and indemnity
8.1. The user's use of this website and the information contained on the website is entirely at the user's own risk and the user assumes full responsibility and risk of loss resulting from the use thereof.
8.2. The transmission of information via the internet, including without limitation e-mail, is susceptible to monitoring and interception. The user bears all risk of transmitting information in this manner. Under no circumstances shall TheXchange be liable for any loss, harm, or damage suffered by the user as a result thereof. TheXchange reserves the right to request independent verification of any information transmitted via e-mail and the user consents to such verification should TheXchange deem it necessary.
8.3. To the extent permissible by law:
8.3.1. Neither TheXchange, its affiliates, shareholders, agents, consultants or employees shall be liable for any damages whatsoever, including without limitation any direct, indirect, special, incidental, consequential or punitive damages, howsoever arising (whether in an action arising out of contract, statute, delict or otherwise) related to the use of, or the inability to access or use the content of the website or any functionality thereof, or the information contained on the website, or of any linked website, even if TheXchange knows or should reasonably have known or is expressly advised thereof.
8.3.2. The liability of TheXchange for faulty execution of the website as well as all damages suffered by the user, whether direct or indirect, as a result of the malfunctioning of the website shall be limited to TheXchange rectifying the malfunction, within a reasonable time and free of charge, provided that TheXchange is notified immediately of the damage or faulty execution of the website. This liability shall fall away and be expressly excluded if the user attempts to correct or allows third parties to correct or attempt to correct the website without the prior written approval of TheXchange. However in no event shall TheXchange be liable to the user for loss of profits or for special, incidental, consequential or punitive losses or damages arising out of or in connection with the website or its use or the delivery, installation, servicing, performance or use of it in combination with other computer software.
8.3.3. You hereby unconditionally and irrevocably indemnify service provider and agree to hold TheXchange free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by TheXchange or instituted against TheXchange as a direct or indirect result of:
220.127.116.11. your use of the website;
18.104.22.168. software, programs and support services supplied by, obtained by or modified by you or any third party without the consent or knowledge of TheXchange;
22.214.171.124. your failure to comply with any of the terms or any other requirements which TheXchange may impose from time to time;
126.96.36.199. the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software; or
188.8.131.52. any unavailability of, or interruption in, the service which is beyond the control of TheXchange.
8.4. TheXchange makes no warranty or representation as to the availability, accuracy or completeness of the content of the website. You expressly waive and renounce all your rights of whatever nature that you may have against TheXchange for any LOSS suffered by you, as a result of information supplied by TheXchange being incorrect, incomplete or inaccurate.
9.1. By subscribing as a user, you agree that you shall hold in the strictest confidence and not disclose to any third party information acquired in connection with any aspect of the products and/or services offered by TheXchange. You shall notify TheXchange should you discover any loss or unauthorised disclosure of the information.
9.2. Any information or material sent to TheXchange will be deemed not to be confidential, unless otherwise agreed in writing by the user and TheXchange.
10. Breach or cancellation by TheXchange
10.1. TheXchange is entitled without notice, in addition to any other remedy available to it at law or under these Terms, including obtaining an interdict, to cancel these Terms, limit or deny such user use of the Website and services, or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to TheXchange's right to claim damages, should any user:
10.1.1. breach any of these Terms;
10.1.2. in the sole discretion of TheXchange, use the Website in an unauthorised manner; or
10.1.3. infringe any statute, regulation, ordinance or law.
10.2 Breach of these Terms entitles TheXchange to take legal action without prior notice to the user and the user agrees to reimburse the costs associated with such legal action to TheXchange on an attorney and own client scale.11. Compliance with lawsYou shall comply with all applicable laws, statues, ordinances and regulations pertaining to your use of and access to this Website.
11. Compliance with laws
You shall comply with all applicable laws, statues, ordinances and regulations pertaining to your use of and access to this Website.
Except as explicitly stated otherwise, any notices shall be given by email to [email protected] or to the e-mail address you have provided to TheXchange (in your case), or such other address that has been specified. Notice shall be deemed given 48 (forty eight) hours after an email is sent, unless the sending party is notified that the email address is invalid. Alternatively, TheXchange may give you notice by registered mail, postage prepaid and return receipt requested, to the address which you have provided to TheXchange. In such case, notice shall be deemed given 7 (seven) days after the date of mailing. You acknowledge that all agreements, notices or other communication required to be given in terms of the law or these Terms may be given via electronic means and that such communications shall be "in writing". Notwithstanding anything to the contrary, a written notice or communication actually received by a party shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at its chosen address(es) for that purpose.
13. General clauses
13.1. These Terms shall be governed in all respects by the laws of Switzerland as such laws are applied to agreements entered into and to be performed globally.
13.2. This Website is controlled, operated and administered by. TheXchange makes no representation that the content of the Website is appropriate or available for use outside of Singapore. Access to the Website from territories or countries where the content of the Website is illegal is prohibited. Users may not use this Website in violation of Singapore export laws and regulations. If the user accesses this Website from locations outside of Singapore, that user is responsible for compliance with all local laws.
13.3. TheXchange does not guarantee continuous, uninterrupted or secure access to our services, as operation of our Website may be interfered with as a result of a number of factors which are outside of our control
.13.4. If any provision of these Terms is held to be illegal, invalid or unenforceable for any reason, such provision shall be struck out from these Terms and the remaining provisions shall be enforced to the full extent of the law.
13.5. TheXchange's failure to act with respect to a breach by you or others does not constitute a waiver of our right to act with respect to subsequent or similar breaches.
13.6. You shall not be entitled to cede your rights or assign your rights or delegate your obligations in terms of these Terms to any third party without the prior written consent of TheXchange.
13.7. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
13.8. The head notes to the paragraphs to these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
13.9. Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include females and words importing persons shall include partnerships and corporate and unincorporated entities.
13.10. These Terms set forth the entire understanding and agreement between TheXchange and you with respect to the subject matter hereof.
14. Contact Us
If you have any questions or feedback about this Agreement, please contact us at Email: [email protected]
Date of Last Update: January 20, 2021
• How we collect personal data
• Third-party cookies
• Declining cookies
• How we use your personal data
• How we share personal data
• Security of your personal data
• International company
• Additional matters relating to personal data
How we collect personal data
When we open and operate an account for you, provide you with our products and services, or communicate with you, we may collect your personal data. We do this in various ways, including:
• when you provide it to us such as when you sign up for a TheXchange account, use our products and services, or take part in customer surveys, competitions and promotions;
• when you communicate with us by email, chat, telephone or any other means, we collect the communication and any data provided in it;
• when you use TheXchange platform we collect information on your transactions and other use of your account;
• when we obtain information from third parties such as identity verification services, credit reference agencies, and regulatory and enforcement agencies.
Cookies are small data files that we or companies we work with may place on your computer or other devices when you visit our website. They allow us to remember your actions or preferences over time.
• track site usage and browsing behaviour;
• allow you to sign in to your account and navigate through the platform;
• tailor our website’s functionality to you personally by letting us remember your preferences;
• improve how our platform performs;
• allow third parties to provide services to our platform;
• monitor the effectiveness of our promotions and advertising; and
• mitigate risk, enhance security and help prevent fraud.
We use both session and persistent cookies. Session cookies are deleted when you close down your browser, while persistent cookies remain on your device until they expire or you delete them. Persistent cookies allow us to remember things about you when you visit our website again.
We may use authorised third-party providers to help us with various aspects of our business, such as website operations, services, applications, advertising, support tools and to serve you relevant content.
These service providers may place cookies on your device (third-party cookies) or make use of similar tracking technologies such as web beacons. No personally identifiable information is stored in third-party cookies. The information reported to us is aggregated and anonymous. We use this information to understand, for example, the effectiveness of our advertising and marketing. Web beacons are small graphic images (also known as “pixel tags” or “clear GIFs”) which may be used to collect and store information about visits to our website (such as which pages you viewed and how long you spent on the website) and communication efficiency (such as the email delivery and open rates). Where necessary, the information gathered by web beacons may be tied to your personal data strictly for the purposes set out herein.
Overall, cookies help us provide you with a better platform, by enabling us to monitor which pages you find useful and which you do not. A cookie in no way gives us access to your computer or any information about you, other than the data you choose to share with us.
How we use your personal data
We use personal data for one or more of the following purposes:
• to verify your identity in accordance with Know Your Customer (KYC), Anti-Money Laundering (AML) and sanctions screening requirements;
• to manage and maintain your account with us;
• to prevent fraudulent or unauthorised use of our products and services;
• to better manage our business and your relationship with us;
• to improve our products and services, and to develop new products and services;
• to notify you about benefits and changes to the features of our products and services;
• to provide you with personalised advertising and marketing;
• to respond to your enquiries and to resolve disputes.
Where necessary to protect our legal rights and interest, or the interests of others, we also use personal data in relation to legal claims, compliance, audit, risk management and regulatory functions. We may also use personal data in connection with the acquisition, merger or sale of a business.
How we share personal data
We share personal data with:
• any person that works for us or for one of our group companies;
• any entity that forms part of the TheXchange group of companies, including where relevant the TheXchange operating entity in the country or region in which you live;
• financial and other institutions we partner with to provide our products and services;
• companies and organisations that provide services to us, including in relation to technical infrastructure, marketing and analytics, and web and app development;
• companies and organisations that assist us with identity verification, background screening, due diligence and processing or otherwise fulfilling transactions that you have requested;
• our professional advisers, consultants and other similar services.
We will otherwise treat your personal data as private and confidential and will not share it with other parties except:
• where you have given permission;
• where we may transfer rights and obligations pursuant to our agreement with you.
Security of your personal data
TheXchange places great importance on ensuring the security of your personal data. We regularly review and implement up-to-date technical and organisational security measures when processing your personal data. Employees of TheXchange are trained to handle personal data securely and with the utmost respect, failing which they may be subject to disciplinary action.
The personal data we collect may be transferred to, stored and processed outside of the jurisdiction in which you reside, and the laws of those countries may differ from the laws applicable in your own country. For example, data collected in the European Economic Area (EEA) may be transferred to, stored and processed at a destination(s) outside of the EEA. Any processing of such data will be undertaken by our staff, or the staff of our third-party service providers, whose roles will include verifying your identity, processing payment details, and providing customer support.
Additional matters relating to personal data
Retention of personal data
Incomplete personal data
Where indicated (for example in application forms or account opening forms), it is obligatory to provide your personal data to us to enable us to process your application for our products or services. Should you decline to provide such personal data, we may not be able to process your application/request or provide you with our products or services.
Your right to access, update, or remove your personal data
Most of the data TheXchange collects, and the ways in which we use it, are necessary for us to provide and improve the services we provide to you, or to comply with our obligations. In certain situations, we give you the ability to choose how we use your data.
Depending on the country in which you live, you may have certain rights under data protection law, including the right to object to the processing of your personal data or to request that we:
• provide you with a copy of your personal data (including in a format that can be shared with a new provider); or
• correct, delete, or restrict the processing of your personal data.
Please submit an enquiry if you would like to exercise any of the above rights. These rights are limited in some situations, such as where we are legally required to process your data, and may limit your ability to use our products and services.
We will notify you and the relevant supervisory authority as soon as we become aware of any data breach that is likely to result in a risk to your rights and freedoms.
Credit and debit card data
We do not store your full credit and debit card data. This data is securely transferred and stored off-site by an authorised payment vendor in compliance with Payment Card Industry Data Security Standards (PCI DSS). This information is not accessible to TheXchange or TheXchange’s employees or any agent acting for or on behalf of TheXchange.
Contacting TheXchange in relation to personal data
TheXchange Pte. Ltd (herein “TheXchange”), is a company duly incorporated in terms of the laws of Singapore under registration number 201819952N and with physical address Marina Bay, Financial Towers, 10 Marina Blvd, Tower 2, Singapore and email address: [email protected]
TheXchange is willing to disclose certain confidential information as defined below to you (herein “Recipient”) subject to you unconditionally and irrevocably giving the confidentiality undertaking set out in this document. If you do not agree to give this undertaking or are not able to do so for any reason, you are not authorised to access the confidential information and any such access is unlawful.
1.1. In this Undertaking, the following terms (as capitalised), shall have the meanings assigned below:
1.1.1. “Affiliate” means any entity or person directly or indirectly controlled by a Party or in control of a Party or otherwise affiliated or associated with a Party.
1.1.2. “Business Day” means any day which is not a Saturday, Sunday or official public holiday in Switzerland.
1.1.3. “Confidential Information” means the confidential or proprietary information of TheXchange and its Affiliates, including:
184.108.40.206. the terms of this Undertaking and any disputes arising from this Undertaking;
220.127.116.11. the Intellectual Property of TheXchange and its Affiliates and licensors;
18.104.22.168. the virtual identity commercialisation platform, technology, monetisation model and marketplace under development by TheXchange, inclusive of the concepts known as SportXchange, EsportsXchange, CelebrityXchange / CelebXchange, ActorXchange, MusicianXchange / MusicXchange, PoliticianXchange, BusinessXchange, ArtistXchange, ArtXchange, VirtualStaX Cards, as well as the Global Popularity Index;
22.214.171.124. any current or future opportunities or challenges revealed by TheXchange and its Affiliates to the Recipient pertaining to the Disclosing Purpose or otherwise, as well as any current or future opportunities or challenges derived thereof;
126.96.36.199. the details of any customer, supplier, vendor, service provider, developer or other relationship of TheXchange and its Affiliates, specifically including the identity of these parties and the terms of any arrangement with them; and
188.8.131.52. other matters which relate to the business of TheXchange which information is not readily available in the ordinary course of business to a current or potential competitor of TheXchange and its Affiliates.
1.1.4. “Disclosing Purpose” means discussion regarding the possible entering into of a commercial relationship and/or transaction between the Parties.
1.1.5. “Intellectual Property” means all intellectual property and proprietary rights of TheXchange, inclusive of the following:
184.108.40.206. all current and future intellectual property and proprietary rights, howsoever arising in any jurisdiction worldwide, whether registered or not, discovered solely or in collaboration with others, irrespective of stage of development, including (without limitation) the following rights and rights similar thereto: patents, industrial designs, design rights, topography rights, registered and unregistered trade marks, service marks, goodwill, copyright, domain names, defensive names, know-how, trade secrets, confidential information, plant breeders’ rights, performer’s rights and in respect of all of the aforegoing, any applications (or entitlement to make application) for the protection or registration of the aforesaid rights and all renewals and extensions thereof throughout the world (to the extent possible);
220.127.116.11. all current and future embodiments of the aforegoing rights, physical or otherwise, including (without limitation) inventions, discoveries, analyses, models, moulds, tooling, topographies, trade names, business names, trade dress, logos, emblems, get-ups, works, records, schematics, formulas, test, manuals, documentation, layouts, content, compilations, images, processes, methods, customer lists, supplier lists, business and marketing information, specifications, software, systems, software code (source and object), configurations, information in databases and database schemas; and
18.104.22.168. adaptations, improvements and derivatives of any of the aforegoing.
1.1.6. “Parties” means the parties to this Undertaking as set out in the preamble above and “Party” refers to any one of them as the context may indicate.
1.1.7. “Representative” means a director, officer, employee or professional advisor.
1.1.8. “Secondary Receiver” means an Affiliate or Representative.
1.1.9. “Signature Date” means the date of signature by the last Party in time to do so.
1.1.10. “Undertaking” means the undertaking embodied in this document and its annexes.
2.1. This Undertaking will commence on the Signature Date and continue indefinitely thereafter.
2.2. The obligations of the Recipient as set out in this Undertaking shall apply irrespective of whether the Confidential Information was obtained by the Recipient before or after the Signature Date.
3. General obligations of confidentiality
3.1. The Recipient undertakes to procure the confidentiality of any Confidential Information that it may become privy to and not to disclose or allow the disclosure of any Confidential Information to any third party.
3.2. The Recipient’s use of any Confidential Information shall be strictly limited to the Disclosing Purpose and for no other reason. The Recipient shall not directly or indirectly use any Confidential Information for any other purpose, nor assist or allow any third party to do so.
3.3. The Recipient shall not make any copies of any Confidential Information, in whole or in part, except if and to the extent strictly necessary for the Disclosing Purpose.
3.4. All records made available by TheXchange to the Recipient pursuant to this Undertaking will remain the property of TheXchange and the Recipient will upon termination of this Undertaking, or upon written request by TheXchange, return all such records without delay.
3.5. The obligations of confidentiality provided for earlier in this clause 3 shall not apply to Confidential Information:
3.5.1. the Recipient is obliged by law to disclose to a competent authority in compliance with a binding order of a court of competent jurisdiction, or to otherwise comply with any law or regulation in force at such time and the Recipient undertakes in such case further to:
22.214.171.124. inform TheXchange of such disclosure with as much notice as is legally permissible;
126.96.36.199. disclose only the portion of Confidential Information that it is legally required to disclose;
188.8.131.52. use reasonable endeavours to protect the confidentiality of such information to the widest extent lawfully possible in the circumstances; and
184.108.40.206. co-operate with TheXchange in preventing and/or limiting such disclosure if called upon to do so.
4. Information security
4.1. In the event that the Recipient becomes aware or suspects that the confidentiality of any Confidential Information has or may be compromised in any way or that a breach of this Undertaking may have occurred or is likely to occur, the Recipient undertakes to immediately inform TheXchange thereof and to take all reasonable steps to remedy and mitigate the effects thereof.
4.2. The Recipient shall continuously:
4.2.1. identify all reasonably foreseeable internal and external risks to Confidential Information in its possession or under its control;
4.2.2. establish and maintain appropriate safeguards against the risks identified;
4.2.3. regularly verify that the safeguards are effectively implemented;
4.2.4. ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards; and
4.2.5. in complying with its obligations under this heading, have due regard to and implement information security best practices and procedures.
5. Reservation of rights
5.1. All right, title and interest in and to the Confidential Information shall remain reserved to TheXchange and the disclosure thereof shall grant no right in respect thereof to the Recipient or its Affiliates.
5.2. The entering into of this Undertaking and the disclosure of Confidential Information shall not in itself oblige TheXchange to enter into any other undertaking or agreement with the Recipient.
6. No warranty
6.1. Any Confidential Information which may be disclosed by or on behalf of TheXchange is disclosed as is, without any warranty or representation.
7.1. The Recipient agrees that in relation to any potential business or investment opportunity of any nature whatsoever, (1) disclosed by or on behalf of TheXchange to the Recipient, (2) derived from the Confidential Information or (3) developed with reliance thereon, that the Recipient will not:
7.1.1. either directly or indirectly, whether alone or with others, negotiate or participate in any transaction, or series of transactions, of any nature, which circumvents TheXchange; and
7.1.2. in any way whatsoever circumvent or attempt to circumvent TheXchange by directly or indirectly dealing with any party, the identity of which would fall within the ambit of Confidential Information.
8.1. TheXchange and/or its nominated auditor shall at its cost have the right to audit the compliance of the Recipient with the terms of this Undertaking (herein "Compliance Audit") and the Recipient shall procure that TheXchange shall similarly be entitled to audit the compliance of Secondary Receivers.
8.2. In the event that results of the Compliance Audit reveals a breach of the provisions of this Undertaking, then without prejudice and in addition to the rights and remedies of TheXchange, the Recipient shall be liable for the payment of the actual cost of the audit that revealed the breach to the Undertaking immediately on written demand.
9. Proof of compliance
9.1. For purposes of this clause, "Deponent" means:
9.1.1. in the case that the Recipient is a natural person, the Recipient; or
9.1.2. otherwise, the Recipient's chief executive officer(s).
9.2. Upon request in writing at any time during the continuance in force of this Undertaking and in any event upon termination thereof for any reason, the Recipient shall procure that the Deponent deposes to an affidavit confirming due and proper compliance of the Recipient with its obligations under this Undertaking, as personally investigated and certified by the Deponent.
10. Breach and indemnity
10.1. If the Recipient:
10.1.1. breaches any provision of this Undertaking and remains in breach for 2 (Two) Business Days after written notice to rectify that breach; or
10.1.2. breaches a term or warranty set out in this Undertaking that is not capable of remedy; or
10.1.3. repudiates this Undertaking by acting in a manner that evidences the intent not to be bound to this Undertaking,
then TheXchange shall be entitled without prejudice to any other rights or remedies which TheXchange may have in law or otherwise (including the right to claim damages) to sue for the immediate specific performance and/or urgent interdictory/injunctive relief in view of any obligations under this Undertaking or to cancel this Undertaking, which cancellation shall take effect on the giving of the notice of cancellation.
10.2. The Recipient agrees to indemnify TheXchange and its Affiliates on demand from any adverse consequences (including, without limitation, claims, costs, damages, losses and injuries) arising from the breach of this Undertaking by the Recipient and that of Secondary Receivers.
11. Dispute resolution
11.1. Any dispute, controversy or claim arising out of, or in relation to this Undertaking, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which a written notice of arbitration is submitted in accordance with the aforesaid rules.
11.2. The number of arbitrators shall be one.
11.3. The seat of the arbitration shall be Zug.
11.4. The arbitral proceedings shall be conducted in English.
12. Notices and address for service
12.1. Each Party hereby chooses as its address for service and receipt of notices (i.e. domicilia citandi et executandi) for purposes under this Undertaking, whether in respect of judiciary process or otherwise, that Party's nominated physical address or email address (herein each a "Notice Address") set out in this document or provided as part of the signature process. Accordingly, insofar as this Undertaking may prescribe notice periods for the giving of notices, such notice periods shall be complied with upon the giving of notices in compliance with the terms of this clause 12.
12.2. Any notice served on a Notice Address before 17h00 in the recipient's time zone shall:
12.2.1. if delivered by hand, be deemed to have been received on the day of delivery; or
12.2.2. if sent by email, be deemed to have been received on the date when it is capable of retrieval by the recipient.
12.3. A Party may by notice in writing to the other change its Notice Address, provided that in respect of its physical address, such address must not be a forwarding address. The change of Notice Address shall become effective 7 (seven) Business Days from the giving of such notice.
12.4. In the event of delivery of a notice to a Notice Address later than 17h00 in the recipient's time zone, then delivery shall be deemed to have taken place on the next day.
12.5. A delivery or read receipt generated by a sender's email application (not server) shall constitute face value (i.e. prima facie) proof of the message being capable of retrieval by the recipient.
12.6. The provisions of this clause 12 do not preclude a serving Party from otherwise proving that a notice was in fact duly received by a receiving Party.
13.1. Definitions in this Undertaking shall bear the same meanings in any annexes to this Undertaking, unless and to the extent that such annexes contain conflicting definitions, in which case the latter will apply in such annexes.
13.2. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definitions clause, effect shall be given to it as if it were a substantive provision in the body of this Undertaking.
13.3. Any reference to a statute or other regulatory enactment is to the provisions thereof as at the Signature Date and as amended or re-enacted from time to time.
13.4. When any number of days is prescribed in this Undertaking, it shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the following Business Day.
13.5. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
13.6. The rule of interpretation that a contract shall be interpreted against the Party responsible for the drafting and preparation thereof (the contra proferentem rule) shall not apply.
13.7. Unless the context shows otherwise, a clause which includes a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it (i.e. the application of the eiusdem generis rule of interpretation is excluded).
13.8. The termination or expiry of this Undertaking shall not affect those provisions which expressly provide that they will continue to operate after such termination or expiry, or those provisions which of necessity must continue to have effect after such termination or expiry, even where those clauses do not expressly provide for this. Without limiting the general import of the aforegoing, the following clauses shall expressly survive termination of this Undertaking for any reason: clause 2 to 15 inclusive.
13.9. In the event that any right or remedy is expressly stated to be available to any of the Parties in particular circumstances, such right or remedy shall be available without prejudice to or limitation of any other right or remedy that may be available to that Party in such circumstances, unless the contrary is expressly stated.
14.1. No assignment. The Recipient shall not be entitled to transfer any right or obligation arising from this Undertaking (including transfer by way of cession, assignment, delegation, sale, merger, operation of law or otherwise), without the prior written consent of TheXchange. TheXchange shall be entitled to transfer this Undertaking to an Affiliate on written notice to the Recipient.
14.2. Applicable law. This Undertaking shall be governed by and construed and interpreted in accordance with the laws of Switzerland. Unless and to the extent expressly agreed otherwise in this Undertaking, the Parties agree that the Swiss courts shall have exclusive jurisdiction to hear any disputes that may arise from this Undertaking.
14.3. Independent advice. Each of the Parties acknowledges that it has been free to secure independent legal advice and that it has either taken such independent legal advice or dispensed with the necessity of doing so at its own risk.
14.4. Binding on successors-in-title. This Undertaking shall be binding on and enforceable against any successor-in-title or other legal representatives of the Parties as fully and effectually as if they had signed this Undertaking in the first instance.
14.5. Independent contractors. The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors. This Undertaking shall accordingly not create a partnership or joint venture, nor constitute any Party as the other's agent, partner, employee or representative.
14.6. No representation. No Party shall be entitled to represent the other Party, unless and only to the extent expressly provided otherwise in this Undertaking.
14.7. Third-party rights. Unless expressly otherwise agreed herein, this Undertaking is not intended to be for the benefit of (and shall not be enforceable by) any person other than the Parties.
14.8. Whole agreement. This Undertaking constitutes the whole agreement between the Parties as to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties or the like not recorded herein.
14.9. Variation. No change, waiver or cancellation of this Undertaking or any right or obligation arising from it shall be of any force and effect unless it is reduced to writing and that document is signed by each of the Parties.
14.10. Relaxation. No failure or delay on the part of any Party to enforce its rights shall in any circumstances be construed as a consent, election, limitation or waiver of rights by such Party.
14.11. Severability. Save as otherwise provided for or as a result of a breach of the terms of this Undertaking, should any provision of this Undertaking become unenforceable in any jurisdiction due to invalidity, illegality or unlawfulness, any Party may on notice to the other require the Parties to forthwith negotiate with one another in good faith to agree on a commercially equivalent and legally compliant alternative provision that removes such offending provision in that jurisdiction, failing the conclusion of such Undertaking in writing within 10 (ten) Business Days from being called upon to do so, then TheXchange may elect in writing to declare the offending provision severed from the Undertaking, in which case the offending provision shall be severed and the remainder of the Undertaking shall remain binding on the Parties.
14.12. Cost of legal services. Each Party will pay its own costs and expenses incurred by it in connection with the negotiation, drafting, re-drafting, entering into and implementation of legally binding documents. Should any Party instruct attorneys to take any steps to enforce any rights in terms of this Undertaking arising from a breach thereof, then the breaching Party shall be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.
14.13. Authority to sign. The person signing this Undertaking on behalf of any one of the Parties warrants and represents as a separate, personal obligation that he/she has the authority to do so and that his/her signature was applied using either an original, handwritten signature or legally compliant and binding electronic signature. The signature of witnesses is not a precondition to the validity of this Undertaking.
14.14. Signature in separate counterparts. This Undertaking may be executed in separate counterparts which, together, shall constitute one and the same Undertaking as at the Signature Date.
15. Contracting by electronic signature
15.1. This Undertaking may optionally be entered into by way of electronic signature, provided that an electronic signature shall only be valid if signature took place in accordance with the provisions of this clause 15.
15.2. Each person electronically signing this Undertaking on behalf of a Party (herein "Signatory") shall be deemed to be the duly authorised signatory of that Party for purposes of entering into this Undertaking and their electronic signature shall be deemed the equivalent of a wet ink signature, provided such signature was authenticated by at least two-factor authentication.
15.3. As a personal and several obligation, the Signatory undertakes that if this Undertaking or any part thereof is declared invalid, unenforceable or otherwise not binding on the Parties due to this Undertaking having been signed by an electronic signature that is compliant with the other provisions of this clause 15, then notwithstanding anything to the contrary, the Signatory agrees to promptly execute a confirmatory copy of this Undertaking by way of wet ink signature. The effective date of such confirmatory copy shall be the same as that of the original electronically signed text. Should any Signatory fail to promptly comply with this obligation, it hereby irrevocably and in rem suam (i.e. having a material and vested interest in the matter) authorises any other Party hereto to sign the Undertaking on its behalf as its duly authorised agent.