Bitcoin Trading Australia

Terms and conditions

Terms and conditions

Welcome to Digital Surge

Digital Surge Pty Ltd ACN 620 473 109 (we, us, our) owns and operates digitalsurge.com.au and all of its sub-domains (the Site), the “Digital Surge” iOS and Android mobile applications (the App), and various third-party social media and messaging sites, channels, pages, groups, and forums (collectively, our Services).

Acceptance and Variation of Terms

Your permission to access and use our Services is conditional upon you agreeing to the terms and conditions set out below before using our Services (Terms). You must read these Terms and our Risk Disclosure Document carefully.

 

By either clicking an “accept” button, creating an account, or accessing or using any part of our Services, you accept, or are deemed to have accepted (as the case may be), all of these Terms, as varied, modified or amended by us from time to time and to have warranted that you have read, understood and accepted all of the risks set out in our Risk Disclosure Document.

 

You agree that these Terms are legally enforceable and binding in the same manner as any written negotiated contract bearing your signature or seal. If you do not agree with these Terms, you must not create an account and must not access or use any part of our Services.

 

We reserve the right to modify, permanently or temporarily disable, or discontinue any part of our Services and to alter, amend or withdraw any part of these Terms, the Privacy Policy, or any information or material appearing on our Services at any time, without further notice to you. Your continued use of our Services will be deemed to constitute acceptance of the Terms as altered or amended.

Acceptable Use

You agree that you are only authorised to use our Services for your own personal use and for the following activities:

 

  • accessing and using our Services; and
  • any other purpose which we make known to you.

 

Unless otherwise approved by us, you must not use our Services for any illegal purpose or activity, including but not limited to any act which causes, or may be likely to cause, physical harm to any person.

 

Your access and use of our Services are subject to these Terms and any other terms and conditions of use that appear on our Services (including third party terms of use, such as those adopted by social media websites and platforms or included in respect of promotions) and any click and accept end user licence terms, together with Privacy Policy terms and acceptable use standards.

Legal Status of Digital Assets

The legal status of cryptographic coins, tokens, and digital assets (hereafter Digital Assets) is not settled. We do not make any representation as to the legal status of any Digital Assets made available through the Service. It is your responsibility to undertake your own investigations and enquiries, and to satisfy yourself in that regard.

 

Digital Assets with certain characteristics may be legally prohibited in some countries or jurisdictions, or be subject to specific restrictions and limitations. It is your responsibility to determine if any limitations concerning specific Digital Assets are restricted in your jurisdiction.

No Financial Advice

You acknowledge and agree that we do not hold, or operate under, an Australian Financial Services Licence and are not offering or providing any financial advice or financial products or services of any kind.

All text, images, audio recordings, video recordings, and other information and content, including but not limited to, market or trading information, tools, indicators, and materials (Content) hosted or made available on or through our Services is provided:

 

  • for general information purposes only; and
  • without any regard whatsoever to the personal circumstances of any person.

 

Any user-created Content which is hosted or made available on or through our Services is provided for, and on behalf of, the relevant user who created or supplied such Content. ‍

 

No Content hosted or made available on or through our Services is, or is intended to constitute advice (financial or otherwise) regarding any Digital Assets or financial products or securities of any kind, or an offer, solicitation, recommendation, or invitation, to buy, sell or deal in any way with any of those things. ‍

 

All statements, representations, estimations, projections, or forecasts made in or through our Services by any person (whether relating to the present or the future) are expressions of opinion only, and do not necessarily represent our opinion or have our endorsement. ‍

 

Unless otherwise expressly stated by us, we, and any other person using our Services (whether as a user, administrator, moderator, or other user type), are not:

 

  • professional or qualified advisors (such as lawyers or accountants);
  • financial advisors or financial service providers;
  • financial services licence holders;
  • professional or qualified traders, investment managers, or fund managers;
  • brokers or agents;
  • securities advisors or practitioners; or
  • software developers, engineers, coders, or technical experts.

 

Before acting on, or relying upon, any Content hosted or made available on or through our Services, we strongly recommend that you:

 

  • undertake your own investigations and enquiries; and
  • seek independent legal, accounting, tax, financial, business, technical and other professional advice from an appropriately qualified professional advisor.

Risk

Digital Assets Generally

 

Purchasing, holding, or trading (Trading) in Digital Asset involves considerable risk and may result in you losing all of your money.

 

Purchasing, holding and selling Digital Assets involves the use of sophisticated computer hardware and software, the correct use of which requires a significant level of understanding of the underlying technologies and innovations. As such hardware and software is considered in its infancy, using it comes with considerable risks, including but not limited to:

 

  • user error;
  • hardware or software failure or malfunction; and
  • the risk of cyber crime, hacking, phishing or fraud.

 

Counterparty Risk

 

As part of our normal business operations, and to provide our users with the best prices for Digital Assets, we hold Digital Assets from time to time on other exchanges. This means we are exposed to counterparty risk in respect of those exchanges. In the event that one of those exchanges suspends withdrawals, fails or becomes insolvent (Counterparty Failure) we may suffer a loss of Digital Assets and the procedure under “Deposits and Withdrawals” below will apply, which may include an adjustment to the balance of your account in the event of loss of Digital Assets. You may protect yourself from Counterparty Failure risk by withdrawing your Digital Assets to an offline or “cold storage” wallet or other Digital Asset storage system where you are in absolute control of the Digital Assets.

Ongoing Technological Development

Many Digital Assets remain under development by their promotors, have not been implemented or deployed, and are not in real-world use.

 

The information published publicly or otherwise made available by the promotors of many Digital Assets is of a technical nature and requires a high level of knowledge and understanding of distributed ledger technology, software development, traditional banking systems, investment scheme regulation, securities regulation, and various other laws and regulations.

 

The matters, technologies and innovations published publicly or otherwise made available by the promotors of many Digital Assets:

 

  • may not have been subject to any evaluation or verification by independent qualified professionals (such as legal, financial, taxation, information technology, or engineering professionals);
  • may require regulatory or other approvals or consents from governmental and non-governmental bodies and privately held entities to be lawfully used or implemented; and
  • may be subject to agreements, licensing, and other arrangements with unknown third parties, the terms of which are not publicly disclosed.

Trading, Etc.

Our Services may include trading tools, indicators, materials, and configurations (Trading Tools) which you may access and use. The factors, variables and circumstances which are accounted for by the Trading Tools are limited to the variables, inputs and specifications of each Trading Tool (as applicable).

 

There are many factors, variables and circumstances which may affect, positively or negatively, the result of any Trading activity, or the use of any Trading Tool, including but not limited to:

 

  • market conditions and sentiment, including market volatility (price fluctuations) and liquidity (the availability of buyers and sellers in the market);
  • correct technical implementation of Trading Tools (including, but not limited to, mathematically, conceptually, and strategically);
  • changes in laws and regulations applying Digital Assets;
  • other macro-economic factors; and
  • bad actors, such as market manipulators, insider traders scams and “rug pulls” or “pump-and-dump” syndicates.

Acknowledgements

By using our Services, or any Trading Tool, you acknowledge and agree that:

 

  • we do not set the price of any Digital Assets which are tradeable using our Services, but seek to locate competitive prices for Digital Assets;
  • in order to secure those prices, we must hold Digital Assets on other exchanges from time to time. See above under “Counterparty Risk” for more information;
  • the prices or rates of exchange for Digital Assets available on our Services may differ significantly from the prices or rates of exchange available on other exchanges or exchange services;
  • we do not represent, warrant or guarantee that you will generate any kind of financial return of any kind over any time period;
  • we do not use any Digital Assets allocated to customer trading accounts for on-lending or for payment of any of our business expenses or uses;
  • we do not warrant or guarantee that any Trading Tool is suitable for the purpose for which it is intended, or for any other purpose whatsoever; and
  • you risk losing all of your money or the value of your Digital Assets, for which you will be solely responsible.

Australian Residents Only

Our Services are only available to residents of Australia. All information and Content hosted or made available on or through our Services is not intended for any person who is not an Australian resident. Notwithstanding, we reserve the right, in our sole absolute discretion, to permit any non-Australian resident to access or use our Services.

Consent for Identity Verification Using the DVS

Digital Surge is required to collect and verify your identification information under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). All personal information collected by us will be handled by us in accordance with the Australian Privacy Act 1988 (Cth) and our Privacy Policy.

 

By providing your personal information to us  (including without limitation your identifying documentation such as photo identification, government issued passport, national identity card, or driver licence) you expressly consent to us collecting, using, and disclosing your personal information for the purpose of verifying your identity through the secure, online identity verification system established under the Identity Verification Services Act 2023 (Cth) known as the Document Verification Service (DVS).

 

The DVS enables us to verify that the information presented on identity documents matches the official records held by the relevant issuing authority, by checking whether the biographic information on your identity document matches the original record through an information match request to the relevant official record holder. The information match request and our access to and use of the DVS for this purpose may involve the use of third-party systems and services. The information match result we receive in response to an information match request will simply be “yes” or “no”.

 

If you do not consent to such use of your personal information, we may not be able to provide our services to you.

 

For more details about the operation and management of the DVS Hub, visit https://www.idmatch.gov.au.

 

If at any time you have a complaint against us regarding our Privacy Policy, including a breach of the Privacy Act, we invite you to contact us by submitting a support request on our website. All complaints made will be dealt with in confidence. We endeavour to respond within 30 days of receipt of a complaint with a resolution or proposed resolution of the issue raised.

 

You may also make a complaint to the Office of the Australian Information Commissioner (OAIC) about the handling of your personal information. Information on making a privacy complaint can be found on the OAIC Website.

No Minors

Our Services are designed for use only by people who are 18 years of age or older. Persons under 18 years of age must only use our Services with the consent of their parent or legal guardian. We may, in our discretion, request you to provide evidence of such consent, if applicable.

App

Installation of the App

 

Your download and installation of the App is subject to the Apple App Store terms and conditions (for iOS devices) and Google Play Store terms and conditions (for Android devices). While we endeavour to ensure that the App supports all modern mobile phone devices, we do not warrant or guarantee that the App will be bug free, or perform as expected, on all devices.

 

Licence to Use and Access the App

 

In exchange for you agreeing to and accepting these Terms (or being deemed to do so), we grant you a personal, non-exclusive, non-assignable licence to use and access the App (with no right to sublicense).

No Warranty

Subject to law, we make no representations and give no warranties or guarantees to you that the App is suitable for any particular use or purpose.

Account Creation

In order to access and use our Services, you must:

 

  • create an account on our Site; and
  • be over the age of 16; and
  • verify your account by following our know-your-customer (KYC) and anti-money laundering (AML) procedures and providing such information and documents which we reasonably require.

 

We may use, or require you to use, a third party service provider to verify your identity, in which case, you acknowledge and agree as follows:

 

  • the account verification process is subject to the terms of service and other requirements of the third party service provider;
  • in order to verify your identity, we, or the third party service provider, may disclose and securely transmit your personal information to:
    • government authorities;
    • credit agencies;
    • politically exposed person database service providers, or other watchlist service providers; and/or
    • other third party data or identity verification service providers.

 

You consent to us collecting and disclosing your personal information for the above purposes.
We may, at any time, require you to undertake further KYC or AML procedures, and provide further information and documents, in order to maintain your account verification.

Acknowledgements

When creating an account, you acknowledge and agree that:

 

  • you will not provide any false personal information and will keep your personal information accurate and up to date;
  • you will only create more than one account per person (that is you may have an account for a company or trustee separate to a personal account);
  • you will only create one account;
  • you will not allow anyone else to access your account;
  • you will not create a new account if your account is disabled;
  • we may alter any part of your user account if we receive a legitimate complaint, or otherwise form the view (in our sole discretion) that it is inappropriate or offensive; and
  • if you create an account using your user credentials from a third party site (such as Facebook or Google), your use of such credentials is subject to that third party site’s terms of use and privacy policy, and you consent to us collecting such user credentials for the purpose of creating your account; and
  • we have the right to suspend or terminate your access to our Services, at any time, in our sole discretion, without prior notice to you.

Account Deletion, Suspension and Termination

You may request deletion of your account at any time either by using the in-built deletion facility on the Site or the App (if any), or by contacting us by email at contact@digitalsurge.com.au.

 

We reserve the right to suspend your account/s on our Services at any time and for any reason, including but not limited to:

 

  • in the event of unexpected market volatility;
  • in the event of an exchange with whom re hold Digital Assets with as part of our business suspending withdrawals or entering insolvency;
  • if you were a customer as at 8 December 2022, your account is inactive for a period of six (6) months or more after February 2028;
  • otherwise your account is inactive for a period of six (6) months or more;
  • if you breach these Terms, or any other relevant third party terms and conditions, or we suspect that you have breached them; or
  • if you engage in any illegal, offensive, defamatory, or obscene conduct or behaviour.

Deposits and Withdrawals

We are not obliged to accept deposits from any person, and reserve the right not to deal with any person, for any reason.

 

‍All deposits and withdrawals of fiat currency and Digital Assets must be undertaken strictly in accordance with our specifications and requirements from time to time. You acknowledge and agree that, if you fail to comply with our specifications and requirements, we are not responsible for any Loss suffered by you as a result.

 

Your ability to deposit or withdraw fiat currency or Digital Assets may be regulated under Australian law, such as Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). You acknowledge and agree that we may, in our sole absolute discretion, do all acts and things which are necessary or desirable to comply with the law, including but not limited to:

 

  • blocking, cancelling, or reversing transactions made using our Services;
  • freezing accounts, or preventing access to account funds by you, or any other person;
  • notifying the authorities and complying with their requests and requirements.

 

You agree that we may determine, in our sole absolute discretion, the systems, methods, processes and procedures, by which we receive, hold, or disburse fiat currency or Digital Assets, including but not limited to:

 

  • for fiat currency, whether funds are segregated or pooled; and
  • for Digital Assets, if, when and how hot or cold wallets are used or accessed and the amounts of Digital Assets we hold on other exchanges.

 

You agree, authorise, direct and consent to us holding to your account all fiat currency and Digital Assets you send or transfer to us. You further acknowledge and agree that:

 

  • we hold the legal title to all fiat currency and Digital Assets which we hold to your account;
  • none of your account balances are segregated on a per account basis;
  • in order for us to offer competitive pricing for Digital Assets, we hold certain amounts of Digital Assets on other exchanges;
  • in the event of Counterparty Failure we will endeavour to:
    • cover part of the loss from the Digital Surge Assurance Fund; and
    • seek urgent funding from lenders and stakeholders for any amount above that; and
    • if such funding is not sufficient, we will apportion the loss across all customer accounts proportionally.

while the above process occurs, all withdrawals will be suspended.

 

Digital Surge Assurance Fund means an amount of monies which we set from time to time to be used in the event of a Counterparty Failure, which we set in our sole discretion and which may vary from time to time and which we may publicise from time to time. You waive any right or claim and forever release us from any liability in respect of any losses you suffer as a result of Counterparty Failure including arising from any adjustment of account balances arising from such failure.

 

You waive any right to any interest paid by our financial institution on any fiat currency held by us to your account. We are entitled to retain all such interest, if any.

 

Despite any other provision of these Terms, you acknowledge and agree that we may, in our sole absolute discretion, take any action which we consider necessary or desirable to protect or secure the fiat currency or Digital Assets which we hold to the account of our users, or otherwise which we believe may be in the interests of our users and other stakeholders, noting that we do not hold ourselves out to be a custodian or trustee and that we do not have any fiduciary duty to users or other stakeholders.

Exchange Services

The core service we provide to our users is the matching of offers to buy or sell Digital Assets made by users with opposing offers made by other users, in order to facilitate the exchange of:

 

  • fiat currency for Digital Assets;
  • Digital Assets for fiat currency; or
  • Digital Assets for other Digital Assets.

 

You acknowledge and agree that our facilitation of such exchange transactions is undertaken where necessary as agent on your behalf, and not as principal on our own behalf.

 

You agree, authorise, direct and consent to us doing the following:

 

  • communicating any offer submitted by you through our Services to buy or sell Digital Assets (Offer) to other users of our Services;
  • matching your Offers with opposing Offers of other users (Counterparties);
  • settling any resulting transactions within a reasonable time by doing one or both of the following things (as determined by us in our discretion):
    • transferring fiat currency or Digital Assets held to your account to the relevant Counterparties; and/or
    • applying a debit against your account, and applying a corresponding credit against the relevant Counterparties’ account/s, for fiat currency or Digital Assets, after deducting any fees due and owing by you (refer to the section below relating to Fees).

 

All Offers, once submitted, are irrevocable and may only be cancelled if we provide the ability to do so on our Services.

 

Although we will generally match opposing Offers in the order in which we receive them, we do not guarantee that this will occur. For example, large Offers may, due to insufficient demand, be matched over time.

 

We may, in our absolute discretion, regulate:

 

  • the number and type of Offers that you may submit at any one time;
  • your ability to amend or cancel Offers once submitted; and
  • the parameters within which Offers may be submitted, such as price increments.

 

We reserve the right to cancel any Offer submitted by you, in whole or in part, where we consider, in our sole absolute discretion, that the Offer:

 

  • has been submitted by you in breach of these Terms;
  • has the effect, or may be likely to have:
    • the effect, of unfairly manipulating any market; or
    • an adverse impact on our Services, or our reputation or goodwill, or
  • where an unexpected situation has arisen, such as the failure of a counterparty

Fees

For a complete list of our fees, please refer to our Fee Schedule. ‍

 

All fees are, unless otherwise expressly stated by us:

 

  • for fees described in fiat currency, in Australian dollars ($AUD);
  • for fees described in Digital Assets, in those applicable Digital Assets; and
  • inclusive of goods and services tax and other value-added tax.

Payments and Transfers Generally

Where fiat currency payments or transfers are handled by a third party payment processor, they are subject to that third party payment processor’s terms and conditions. We accept no responsibility or liability in relation to payments processed by third party payment processors. Any issues which you experience in making payments to us may be raised with us, However, we reserve the right to require you to liaise with the third party payment processor directly.

 

All Digital Asset payments or transfers are made by you at your own risk and expense. We accept no responsibility or liability in relation to:

 

  • any delayed or failed payment due to congestion on any blockchain network;
  • any failed or mistaken payments due to human error, such as entering the incorrect recipient wallet address; or
  • any fluctuations in the market price of any Digital Asset used to pay our fees.

Liquidity Providers

We may, in our sole absolute discretion, engage one or more third party contractors (not being Australian residents) to provide market making or liquidity services. These may include contractors who are related entities to us.

Refunds and Chargebacks

To the greatest extent permitted by law, subject to anything in these Terms to the contrary, all fees and other monies payable by you to us are non-refundable immediately upon payment by you. To the extent that we are liable under the law for any defect or issue, our liability is limited to the amount paid by you.

 

We may, in our discretion, offer partial or full refunds where we consider appropriate to do so.

 

If you initiate a transfer recall with your financial institution, or a chargeback on your credit or debit card, or take any similar action, you must pay us an aministration fee of AUD $30.00 on demand. You acknowledge, agree and consent to us setting off any such fees against any monies which we may owe to you from time to time.

Affiliate Program

We may offer an affiliate program, which is subject to our Affiliate Agreement Standard Terms and to our Fee Schedule. You acknowledge and agree that we may vary our Affiliate Agreement Standard Terms at any time without prior notice to you. Your continued use of our Services will constitute an automatic acceptance of any such variation made by us.

Promotions and Discounts

We may offer promotions and discounts from time to time. All promotions and discounts are offered subject to these Terms and any other terms and conditions we specify.

Security

You must ensure that all login IDs and passwords required to access our Services are kept secure and confidential. We offer multi-factor authentication to help secure your access to our Services, such as by requiring you to input one-time-use codes, which we encourage you to use to secure your account.

 

You must immediately notify us of any unauthorised use of your login IDs or passwords or any other breach of security.

 

Where there is unauthorised access or a breach of security, we will take appropriate steps to rectify the unauthorised use or breach of security, including by, without limitation, cancelling and resetting the relevant login IDs and passwords, and you must take all other actions that we reasonably deem necessary or desirable to maintain or enhance the security of our computing systems and networks and your access to our Services.

 

We will use all reasonable endeavours to ensure that we provide a secure environment for any data stored or hosted on our systems, including by encrypting your data. You acknowledge however that no information which is available on the Internet is completely secure and you agree that we will not be liable for any damage, loss, cost, liability, expense, injury or death of any kind and however arising including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable (Loss) suffered by you or any third party should our security measures (or those of any of our service providers) be overcome or breached.

 

We maintain appropriate technical and operational measures, internal controls, and data security routines intended to protect your data against accidental loss or change, unauthorised disclosure or access, or unlawful destruction. We are not responsible for the security of any data stored on any personal computer, laptop, mobile or other device owned or controlled by you.

No Interference

You agree that you will not:

 

  • use our Services in any way that could damage our reputation or goodwill;
  • permit any person to access and use our Services other than in accordance with these Terms;
  • disable, tamper with or otherwise attempt to circumvent any billing mechanism that meters the use of our Services by you or any other person;
  • except to the extent that any applicable laws(including but not limited to copyright laws) prevent us from restraining you from doing so:
    • reproduce, make error corrections to or other wise modify or adapt our Services or create any derivative works based upon our Services; or
    • decompile, disassemble or otherwise reverse engineer our Services or permit or facilitate any third party to do so;
    • when accessing and using our Services:
    • attempt to undermine the security or integrity of our computing systems or networks or, where our Services are hosted or operated by a third party, the third party’s computing systems and networks;
    • use, or misuse, our Services in any way which may impair its functionality, or the functionality of any other system used to deliver our Services, or impair the ability of any third party to lawfully use our Services;
    • attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which our Services are hosted or stored;
    • transmit, or input into our Services any information, data, files or other material that may damage any other person’s computing devices or software, may be offensive, or which is in violation of any law (including material protected by copyright or trade secrets which you do not have the right to use);
    • attempt to modify, copy, adapt, reproduce,disassemble, decompile or reverse engineer any computer programs used to deliver or operate our Services, except as is strictly necessary to use either of them for normal operation;
    • remove or modify any program markings or any notice of proprietary rights, including those of any third party;
    • use any automated processes or means to access our Services, other than by means of our official application programming interfaces (APIs);
    • use any software or manual repetition that will or is likely to interfere with our Services; or
    • attempt to cause stress or detriment to the proper working of our Services, such as by:
      • acting in any way likely to cause an unreasonable strain to the infrastructure of our Services;
      • reloading or refreshing transaction pages more than once every 5 seconds; or requesting any page of the Site or the App more than 1000 times in aggregate in any 24-hour period.

Availability

We will use our best endeavours to ensure that our Services are accessible on a continuous basis, 24 hours a day, seven days a week. However, we may, without notice, suspend all or part of any access to our Services, including to make transfers or withdrawals, immediately, including where:

 

  • there is a malfunction or breakdown of any of our equipment or if we are required to undertake the repair, maintenance or service of any part of our Services;
  • it is reasonably required to reduce or prevent fraud or interference with our Services;
  • we are required to comply with an order,instruction or request of a government authority, or other such competent body; or
  • there has been any suspension of trading or withdrawals with an exchange that we store Digital Assets with; or
  • we are otherwise prevented from making our Services available by circumstances outside our reasonable control.

 

You acknowledge and agree that access to our Services is reliant upon various factors outside our control, including, without limitation, you meeting the minimum technical requirements of our Services, your Internet service provider or telecommunications provider, the speed and bandwidth of your Internet connection, the equipment or devices which you use to access and use our Services, our hosting and web server (to the extent that we engage third party contractors) and other factors which may impact upon the delivery of our Services to you via the Internet.

 

While we will use all reasonable endeavours to ensure that you have continuous access to our Services, we will not be liable to you or any other person for any Loss to property or persons caused by such factors.

 

We reserve the right to restrict of remove access to our Services for the purpose of undertaking maintenance and updating of our Services.

 

We do not warrant that any part of our Services is or will be completely error free or free of defects. Certain parts of our Services may be made available on an “alpha” or “beta” basis for testing purposes prior to full release and may be withdrawn or removed at any time by us without notice to you. We may not identify which parts of our Services are released on such an “alpha” or “beta” basis. We are not responsible for any Loss to property or persons incurred as a result of the use by any person of any parts of our Services which are released on an “alpha” or “beta” basis.

Copyright

Except as expressly stated by us, the information and Content contained within our Services (including its coding, wording, design, graphics and logos) are owned by us or our affiliates and are protected by Australian and international copyright and trademark laws (as applicable).

 

You may only retain copies of information if obtained incidentally to your viewing and kept for your own personal reference.

Intellectual Property

You acknowledge and agree that we or our affiliates own all rights, title and interest, including intellectual property rights and moral rights (IP Rights) in our Services, and any Content hosted or made available on or through our Services (including content produced or provided by other users), and that nothing in these Terms has the effect of, or should be construed as having the effect of passing ownership of any such IP Rights, or those of any third party, to you or any other person whatsoever.

 

You further acknowledge and agree that we at all times retain ownership of all IP Rights created by or for us (whether or not related to our Services and whether created before or after the commencement of our agreement with you under these Terms) and, to the extent that any such IPRights vest in you (by operation of law or otherwise), you hereby irrevocably assign, transfer and dispose of all such IP Rights to us with effect immediately upon such rights arising or vesting in you (as the case may be). To the extent that such assignment, transfer or disposal is not possible under the law, you irrevocably grant us a royalty-free, perpetual, worldwide licence to use, reproduce, modify, redevelop, sublicense, exploit and commercialise all such IP Rights as we see fit.

 

You must not knowingly do any act or thing in relation to data which would infringe any third party’s IP Rights. You are solely responsible for obtaining any consent, approval, authority or licence from the holders of any IP Rights required to enable you to deal with any relevant data or to do any act or thing in relation to those IP Rights.

Privacy

These Terms are subject to our Privacy Policy which is incorporated by reference. By using our Services, you consent to us collecting your personal information. Please read our Privacy Policy so that you are aware of how we collect and use personal information.

 

If, as a result of these Terms, a person (other than us) collects, or is able to access, any personal information about identifiable individuals, then that person must:

 

  • comply with all relevant and applicable privacy laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information, as if they were regulated by these laws;
  • comply with any applicable privacy code or policy which has been adopted by the person who collected the personal information as if it were bound by that code or policy;
  • take all reasonable measures to ensure that such personal information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to it; and co-operate with the other person in the resolution of any complaint under, or relating to, any of the laws, codes or policies referred to in paragraphs (a) and (b) above.

Third Party Sites and Content

Our Services may contain links to third party websites outside our control (Third Party Sites). Our Services may also make available to you Content hosted by Third Party Sites (Third Party Content). We take no responsibility for content contained in any Third Party Sites, or any Third Party Content made available by us to you. We do not endorse any aspect of any Third Party Sites or Third Party Content. We provide links to Third Party Sites, or access to Third Party Content, for convenience only. You access and use all Third Party Sites and Third Party Content entirely at your own risk.

 

If you choose to purchase goods or services from a third party, including from a Third Party Site accessed from or through our Services, you are entering a separate agreement with that third party, and expressly agree that we are not a party to any such transaction.

Continued Development

You consent to us soliciting comments, information, requests, data, ideas, enhancement requests, recommendations, description of processes, or other information concerning our Services from you or any person (Feedback). We own all IP Rights in any Feedback and may use such Feedback for purposes related to our Services or the carrying out of services by us generally in our business activities without further approval or acknowledgement, and you hereby assign to us all IP Rights in any such Feedback.

Off-Site Conduct

It is a breach of these Terms for you to engage in an activity using information and Content obtained from our Services to contact, abuse, advertise, sell to, harass or harm any other person.

Consequences for Violation

If you breach these Terms in any way, you agree that we may in our sole discretion and without notice to you:

 

  • take any legal action we may have available against you;
  • block your use of our Services;
  • suspend, deactivate, or delete your account/s on our Services; and/or
  • disclose information about you and your use of the Site or the App for investigation by any enforcement body for your unlawful activity.

 

You agree that monetary damages may not be sufficient where your actions cause damage to us, whether by tarnishing our goodwill, causing a loss to sales or increasing our expenses and in such a case you consent to us obtaining injunctive or other equitable relief against you as a consequence of your violation.

DISCLAIMER

OUR SERVICES ARE DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS, SUBJECT TO ALL LATENT AND PATENT DEFECTS (IF ANY). IN THIS CONTEXT, WE DO NOT WARRANT THAT OUR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

 

WHILST ALL DUE CARE HAS BEEN TAKEN IN PROVIDING OUR SERVICES, TO THE GREATEST EXTENT PERMITTED BY LAW:

 

  • WE MAKE NO REPRESENTATIONS, AND WE DO NOT GIVE ANY WARRANTIES OR MAKE ANY GUARANTEES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO FINANCIAL INVESTMENT PURPOSES, WHETHER OR NOT SUCH USE OR PURPOSE IS DESCRIBED BY YOU TO US OR OUR REPRESENTATIVES PRIOR TO THESE TERMS TAKING EFFECT; AND
  • ANY CONDITION, GUARANTEE, OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED INTO THESE TERMS AND CONDITIONS IS EXCLUDED.

 

ALL DUE CARE IS TAKEN IN ENSURING THAT OUR SERVICES ARE FREE OF ANY VIRUS, WORM, TROJAN HORSE AND/OR MALWARE, HOWEVER WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICE WHICH ARISES IN CONNECTION WITH YOUR USE OF OUR SERVICES OR ANY THIRD PARTY SITE.

 

WE UNDERTAKE TO TAKE ALL DUE CARE WITH ANY INFORMATION WHICH YOU MAY PROVIDE WHEN ACCESSING OUR SERVICES AND TO PRESERVE SUCH INFORMATION IN A SECURE MANNER IN ACCORDANCE WITH OUR PRIVACY POLICY. WE, HOWEVER, DO NOT WARRANT AND CANNOT ENSURE THE SECURITY OF ANY INFORMATION WHICH YOU MAY PROVIDE AND INFORMATION YOU TRANSMIT TO OUR SERVICES IS ENTIRELY AT YOUR OWN RISK.

 

WE PROVIDE NO WARRANTY AS TO THE ACCURACY OR CURRENCY OF THE ACCOUNT INFORMATION OR OTHER INFORMATION OR DATA UPLOADED TO OUR SERVICES BY ANY OTHER PERSON.

 

OUR SERVICES MAY DYNAMICALLY SOURCE CONTENT (SUCH AS PRICE, VOLUME, DEPTH AND OTHER MARKET DATA) FROM THIRD PARTY SITES AND SERVICES USING APPLICATION PROGRAMMING INTERFACES (APIS) AND OTHER TECHNOLOGIES. WE GIVE NO WARRANTIES AND MAKE NO GUARANTEES AS TO THE ACCURACY OR CURRENCY OF ANY SUCH DATA, THE RESPONSIBILITY FOR WHICH AT ALL TIMES REMAINS WITH THE RELEVANT THIRD PARTY SITES AND SERVICES.

 

FROM TIME TO TIME, WE MAY HOST THIRD PARTY CONTENT ON OUR SERVICES SUCH AS ADVERTISEMENTS AND ENDORSEMENTS. RESPONSIBILITY FOR THE CONTENT OF SUCH MATERIAL RESTS WITH THOSE THIRD PARTIES AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN SUCH MATERIAL OR ANY DAMAGE CAUSED EITHER DIRECTLY OR INDIRECTLY BY THEM.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE GREATEST EXTENT PERMITTED BY LAW:

 

  • YOU ACCESS AND USE OUR SERVICES, AND ANY SYSTEM OPERATED BY US (INCLUDING BUT NOT LIMITED TO STORAGE AND HOSTING SYSTEMS) AT YOUR OWN RISK AND EXPENSE; AND
  • YOU ARE SOLELY LIABLE FOR YOUR OWN ACTS, OMISSIONS AND NEGLIGENCE.

 

YOU ACKNOWLEDGE AND AGREE THAT, TO THE GREATEST EXTENT PERMITTED BY LAW, WE ARE NOT LIABLE FOR ANY LOSS (AS THAT TERM IS DEFINED IN THESE TERMS) TO PROPERTY OR PERSONS AS A RESULT OF, WHETHER DIRECTLY OR INDIRECTLY:

 

  • ANY WILFUL ACT, OMISSION OR NEGLECT BY YOU, OR ANY OTHER PERSON;
  • THE USE, NON-USE OR MISUSE OF OUR SERVICES BY YOU, OR ANY OTHER PERSON;
  • OUR SERVICES FAILING, MALFUNCTIONING, OR NOT FUNCTIONING AS YOU EXPECT;
  • YOUR RELIANCE, OR THE RELIANCE BY ANY OTHER PERSON, ON:
    • ANY CONTENT HOSTED OR MADE AVAILABLE THROUGH OUR SERVICES;
    • ANY INVESTMENT, BUSINESS, ACCOUNTING, TAX, OR FINANCIAL ADVICE OR SERVICE PROVIDED BY ANY PERSON IN CONTRAVENTION OF THESE TERMS;
  • ANY LOSS OF FIAT CURRENCY OR DIGITAL ASSETS RESULTING FROM MALICIOUS ATTACKS AGAINST US OR OUR AFFILIATES, INCLUDING BUT NOT LIMITED TO, CYBER ATTACKS, HACKING, AND FRAUD;
  • ANY INFRINGEMENT OF ANY THIRD PARTY’S IP RIGHTS BY YOU, OR ANY OTHER PERSON; AND
  • ANY BREACH OF THESE TERMS BY YOU, OR ANY OTHER PERSON.

 

TO THE GREATEST EXTENT PERMITTED BY LAW, IN NO CIRCUMSTANCES WILL OUR LIABILITY EXCEED THE TOTAL OF ALL FUNDS HELD BY US TO YOUR ACCOUNT IMMEDIATELY BEFORE THE EVENT OR EVENTS GIVING RISE TO THE RELEVANT CLAIM, LESS ANY FEES WHICH MAY BE DUE IN RELATION TO SUCH FUNDS.

INDEMNITY AND RELEASE

INDEMNITY

 

TO THE GREATEST EXTENT PERMITTED BY LAW, YOU WILL AT ALL TIMES INDEMNIFY AND KEEP INDEMNIFIED US AND OUR RESPECTIVE OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL LOSS (AS THAT TERM IS DEFINED IN THESE TERMS) (INCLUDING LEGAL COSTS AND EXPENSES ON A SOLICITOR AND OWN CLIENT BASIS) INCURRED BY ANY OF THOSE INDEMNIFIED OR RELEASED (AS THE CASE MAY BE) ARISING FROM ANY ACTION, CLAIM, DEMAND, SUIT, OR PROCEEDING MADE OR BROUGHT BY ANY PERSON AGAINST ANY OF THOSE INDEMNIFIED OR RELEASED (AS THE CASE MAY BE) WHERE SUCH LOSS AROSE OUT OF, IN CONNECTION WITH, OR IN RESPECT OF:

 

  • ANY WILFUL ACT, OMISSION OR NEGLECT BY YOU;
  • YOUR USE, NON-USE OR MISUSE OF OUR SERVICES;
  • YOUR RELIANCE ON:
    • ANY CONTENT HOSTED OR MADE AVAILABLE THROUGH OUR SERVICES;
    • ANY INVESTMENT, BUSINESS, ACCOUNTING, TAX, OR FINANCIAL ADVICE OR SERVICE PROVIDED BY ANY PERSON IN CONTRAVENTION OF THESE TERMS; AND
  • ANY LIABILITY FOR ANY TAX, DUTY, IMPOSITION, FEE OR CHARGE INCURRED BY US AS A RESULT OF YOUR USE OF OUR SERVICES;
  • ANY INFRINGEMENT OF ANY THIRD PARTY’S IP RIGHTS BY YOU; AND
  • ANY BREACH OF THESE TERMS BY YOU.

 

RELEASE

 

YOU RELEASE US AND OUR RESPECTIVE OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES FROM ALL LIABILITY IN RELATION TO THE FOLLOWING MATTERS:

 

  • ANY WILFUL ACT, OMISSION OR NEGLECT BY YOU, OR ANY OTHER PERSON;
  • THE USE, NON-USE OR MISUSE OF OUR SERVICES BY YOU, OR ANY OTHER PERSON;
  • OUR SERVICES FAILING, MALFUNCTIONING, OR NOT FUNCTIONING AS YOU EXPECT;
  • YOUR RELIANCE, OR THE RELIANCE BY ANY OTHER PERSON, ON:
    • ANY CONTENT HOSTED OR MADE AVAILABLE THROUGH OUR SERVICES;
    • ANY INVESTMENT, BUSINESS, ACCOUNTING, TAX, OR FINANCIAL ADVICE OR SERVICE PROVIDED BY ANY PERSON IN CONTRAVENTION OF THESE TERMS; AND
  • ANY LOSS OF FIAT CURRENCY OR DIGITAL ASSETS RESULTING FROM MALICIOUS ATTACKS AGAINST US OR OUR AFFILIATES OR COUNTERPARTIES WITH WHOM WE HOLD DIGITAL ASSETS, INCLUDING BUT NOT LIMITED TO, CYBER ATTACKS, HACKING, AND FRAUD;
  • ANY FAILURE OF AN EXCHANGE WITH WHOM WE HOLD DIGITAL ASSETS AS PART OF OUR BUSINESS OPERATIONS;
  • ANY INFRINGEMENT OF ANY THIRD PARTY’S IP RIGHTS BY YOU, OR ANY OTHER PERSON; AND
  • ANY BREACH OF THESE TERMS BY YOU, OR ANY OTHER PERSON.

Reporting

If you encounter any content on our Services that you find offensive and which you believe breach these Terms, please report the content to us by e-mailing contact@digitalsurge.com.au. So that we can efficiently deal with your report, please ensure that your report:

 

  • states the reason for your concern/s; and
  • clearly identifies the content by providing:
    • a description of it; and
    • a link to the specific page, post or content (if applicable).

Confidentiality

You agree to keep confidential all Content hosted or made available on or through our Services (including Content generated by other users). If you receive or encounter any information which a reasonable person would consider to be confidential in nature, you agree to contact us immediately at contact@digitalsurge.com.au

Notices and Notifications

We may send or issue notices to you from time to time:

 

  • through the user interface on our Services; and/or
  • by email.

 

You consent to receiving notices by the above means. We take no responsibility for any failure of delivery of any notice or notification to you for any reason whatsoever.

General

Disputes

 

Except as permitted by law, in the event of a dispute between you and us, or between you and any other person using our Services, you must:

 

  • notify us of the dispute by emailing us at contact@digitalsurge.com.au;
  • provide us with full and complete details of the dispute;
  • providing such supporting information or documents as we reasonably request; and
  • act reasonably and in good faith with the other parties to the dispute in order to resolve the dispute amicably without formal legal action.

 

Entire Agreement

 

These Terms contain the entire agreement between the parties about its subject matter. Any previous representation, understanding, arrangement, agreement, or warranty relating to that subject matter is superseded by these Terms.

 

Jurisdiction

 

This Agreement is governed by the laws of the State of Queensland, Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland.

 

Severability

 

Any provision of these Terms that is illegal, void or unenforceable will be read down or severed so as to preserve the remainder of these Terms which will continue in full force and effect.

 

Waiver

 

‍A failure or delay in the exercise or enforcement of any right, power or remedy available by law or under these Terms by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement of that or any other right, power or remedy. All waivers must be expressly given in writing to be effective and binding. No waiver of a breach of any provision of these Terms will operate as a waiver of another breach of that provision or of a breach of any other provision of these Terms.

 

Rules of Interpretation

 

Unless the context otherwise requires, any terms defined in bold text have the meaning allocated to them wherever they appear in these Terms.

 

The following rules also apply to the interpretation of these Terms, except where the context otherwise requires:

 

  • the singular includes the plural and vice versa;
  • words of any gender include all genders;
  • alternate grammatical forms of a defined term have a corresponding meaning;
  • a reference to a clause, paragraph, schedule, annexure, or appendix is a reference to a clause or paragraph of, and a schedule, annexure, or appendix to these Terms;
  • a reference to a document includes the document as novated, varied, or substituted from time to time;
  • a reference to a person includes a natural person, partnership, body corporate, association, joint venture, and governmental body, authority, agency or other entity;
  • a reference to a party is a reference to a party to these Terms and includes the party’s executors, administrators, successors, permitted substitutes (including by novation) and permitted assigns;
  • a reference to two or more persons is to any of them together and each of them individually;
  • a reference to legislation or regulations includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them;
  • “including” and similar expressions do not limit the generality of any provision of these Terms;
  • a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it; and
  • a reference to $, AUD$, dollar or $ is to Australian currency;
  • headings and table of contents are for ease of reference only and do not affect interpretation.