HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Convention of Joint Owners of Ar
This convention is signed by all joint owners who commit to abide by this convention consciously.
Article 1 This convention is enacted in accordance with the relevant laws of the Hong Kong Special Administrative Region (HKSAR) to protect the lawful rights and interests of joint owners of artworks of HongKong Takung Assets and Equity of Artworks Exchange Co., Limited (hereinafter referred to as “the Exchange”) and to ensure that artwork investment activities are safe and orderly.
Article 2 Artwork holders who retain artwork units, offering agents who subscribe for artwork units and traders who purchase and hold the artwork units in accordance with the rules enacted by the Exchange shall be the joint owners of the artwork. Joint owners shall obtain the title of the artwork which corresponds to the artwork units they have purchased. All joint owners of an artwork shall share the ownership of the artwork in proportion to the artwork units they have purchased.
Article 3 Joint owners shall exercise their rights to the artwork and undertake corresponding obligations in accordance with the articles of this convention, and deal with their artwork units in accordance with the articles of this convention and the relevant rules of the Exchange.
Article 4 Following the acquisition of artwork units by the joint owners, the Exchange is automatically authorized to act on behalf of the joint owners to designate and change the transportation carrier or the depositary, and to sign, modify, cancel and terminate relevant documents such as the agreements for transportation or depositary, and to deliver, deposit and get back the artwork. Joint owners are entitled to claim restitution of the artwork corresponding to the artwork units they held. If joint owners holding the entire units of the underlying artwork reach a consensus to claim restitution of the artwork, they shall jointly submit an application to the Exchange and designate a representative to receive the artwork from the depositary who will be informed by the Exchange to make restitution. Joint owners of only part of the units are not entitled to claim restitution.
Article 5 Following the acquisition of artwork units by the joint owners, the Exchange is automatically authorized to act on behalf of the joint owners to designate and change the insurer, to have the artwork insured and to sign, modify, cancel and terminate relevant documents such as the insurance contract entered into with the insurer.
Article 6 Following the acquisition of artwork units by the joint owners, the Exchange is automatically authorized to act on behalf of the joint owners to decide whether to display the artwork (either regularly or not regularly), and to determine all relevant matters such as the time, venue, manner and duration of the display. Artworks shall normally be displayed for free and the joint owners shall not claim any right of income therefrom except for certain special circumstances in respect of which the Exchange has issued announcement and made relevant arrangements as to how to deal with the proceeds from display.
Article 7 Following the acquisition of artwork units by the joint owners, the Exchange is automatically authorized to act on behalf of the joint owners, when it is discovered that the artwork needs to be maintained and repaired, to decide whether to carry out special treatment such as maintenance and repair work on the artwork, to determine all relevant matters such as the time, venue, craftsman, method and cost of maintenance and repair work, and to sign relevant documents. The costs, risks and losses incurred by such maintenance and repair work shall be borne by the joint owners.
Article 8 On condition that joint owners irrevocably waive the right of first refusal on the artwork units, the trading in artwork units shall be conducted according to the principle of price priority and the principle of time priority in accordance with the rules of the Exchange.
Article 9 Joint owners are entitled to pledge their artwork units. Joint owners who pledge their artwork units are required to sign a written pledge contract with the pledgee and apply to the Exchange for registration of the pledge. The pledgee shall agree that when there is the occurrence of special circumstances according to the rules of the Exchange such as settlement upon expiry, the pledgee will unconditionally agree that the Exchange shall handle the situation in accordance with the rules of the Exchange. The Exchange shall approve the pledge registration if the above conditions are satisfied. The joint owners are not allowed to sell their pledged artwork units or claim any restitution during the term of pledge except with the prior approval from the pledgee.
Article 10 The joint owners whose artwork units are frozen according to the law are not allowed to sell the frozen units or claim any restitution of the artwork during the period when the artwork units are frozen except with the prior approval from the party that freezes the artwork units.
Article 11 Joint owners shall not claim the partitioning of the artwork, shall not claim discount, auction or sale of the artwork or partitioning of the money received without the consensus of all joint owners.
Article 12 Joint owners are entitled to sell their artwork units according to the trading rules of the Exchange, and the claim for restitution corresponding to the sold artwork units is accordingly transferred in lieu of actual delivery of the artwork, whereas the title owned by the joint owners is instantly eliminated.
Article 13 As titleholder of the artwork, the joint owners shall bear the risks of damage and loss of the artwork in proportion to the artwork units held. Joint owners are entitled to demand compensation from relevant person liable if the depositary organizations, insurance organizations or other third parties shall bear the responsibility for the damage and loss.
Article 14 Upon the expiry of the specified trading term for the artwork units and on condition that all joint owners agree to settlement by auction, the proceeds from successful settlement by auction, after deducting the auction fee, shall be distributed to the joint owners in proportion to their respective holding of artwork units prior to settlement; in case the settlement by auction is not successful, the artwork will continue to be traded on the Exchange until the next period as specified by the Exchange for settlement by auction.
Article 15 If all joint owners of the same artwork reach a consensus to change certain articles of this convention or the arrangement on transportation, depositary, insurance and display determined by the Exchange, they shall jointly lodge a written application to the Exchange and discuss details with the Exchange on how to handle the matters.
HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Market Entry Agreement of Trader
This Agreement is entered into by and between traders and HongKong Takung Assets and Equity of Artworks Exchange Co., Limited (hereinafter referred to as “the Exchange”).
Article 1 Traders’ declaration:
1. Traders shall not be prohibited or restricted from trading in accordance with the relevant laws and the trading rules of the Exchange. A trader shall be a natural person who is an adult aged 18 or above.
2. Every trader shall have one nationality only without dual or multiple nationalities. The nationality and identity certificate number provided to the Exchange by the trader for opening an account shall be the sole identification information.
3. Traders shall assume full legal responsibilities for the truthfulness, accuracy and completeness of all their documents and information made available to the Exchange, and shall guarantee the legitimacy of the source of their funds.
4. Traders have read and will voluntarily abide by the “HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Provisional Rules Governing the Trading in Artwork Units” , “HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Provisional Rules Governing the Offering and Listing of Artwork Units” , “HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Provisional Administrative Measures Governing the Registration and Clearing of Artwork Units” and “HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Convention of Joint Owners of Artworks” , and are fully aware of and voluntarily assume the investment risks associated with trading in artwork units. Traders accept the amendments made by the Exchange to the above documents, the contents of which shall be announced on the official website of the Exchange to inform traders.
6. Traders have agreed to abide by the laws regulating the artwork units trading market and the trading rules of the Exchange.
Traders shall exercise their own discretion in purchasing artwork units and assume the corresponding liability, understand and agree that the categories determined by the Exchange for artwork management do not represent any judgment on the investment value of artworks and trading preference.
7. Traders have agreed and authorized the registration and clearing institution specified by the Exchange to deal with the clearing and transfer of artwork units between their respective trading accounts and other accounts.
8. Traders have agreed and authorized the Exchange to keep the underlying artwork of their artwork units in custody, put them on display and have them insured.
9. Traders have carefully read and accurately understood all the provisions of this agreement, in particular, the disclaimer of the Exchange contained herein.
Article 2 Warning of Trading Risk
Traders are exposed to risk and may suffer losses arising from trading in artwork units. Traders have fully understood and voluntarily assume responsibility for the consequences arising therefrom. The risks include but are not limited to the following:
1. Macroeconomic risk: the price of artwork units may fluctuate as a result of changes in the macroeconomic situation of the world or in certain regions of countries and changes in the artwork market.
2. Legal and market risk: the price of artwork units may fluctuate as a result of changes in the laws and trading rules governing the artwork market as well as changes in various factors affecting the price of artwork units.
3. The risk of appraisal and evaluation: the letter of opinion on appraisal and evaluation of artworks is for reference only and may not necessarily guarantee the authenticity and quality of artworks, which may therefore result in significant discrepancy in the price of artworks.
4. The risk of damage and loss of artworks: artworks are exposed to the risk of damage and lost during the process of transportation, display custody or other process, which may result in devaluation of artworks, suspension of trading or delisting of artwork units.
5. The insurance risk of artworks: price fluctuations of artwork units in the trading process may lead to discrepancy between the total market value of artwork units and the insured amount under the insurance coverage.
6. Technical risk: deal matching, clearing and settlement, market information disclosure and funds transfers are realized by employing electronic communication technology and computer technology which may be exposed to attacks by hackers and computer virus. In addition, communication technology, computer technology and relevant software may have defects themselves.
7. Risks arising from force majeure: Force majeure such as earthquake, typhoon, fire, flood, war, pestilence and social unrest may lead to paralysis of the artwork units trading system; any unpredictable failure of system, equipment, communication or power beyond the control of the Exchange may lead to abnormal operation or even paralysis of the artwork units trading system; and any unpredictable failures of system, equipment, communication or power beyond the control of the clearing bank may also lead to abnormal operation or even paralysis of the funds transfer system. All these may result in unsuccessful execution in all or part of the traders’ trading orders or failure of immediate receipt of funds transferred.
8. Data transmission risk: As trading orders are transmitted via the internet, any breakdown, suspension or delay in transmission of trading orders due to interruption of internet service or other reasons may lead to unsuccessful execution in all or part of the trading orders or a delay in execution.
9. Account password leakage risk: Any possible password or account leakage or traders’ identities fraud due to for example virus intrusions or hacker attacks into the computers used by the traders may lead to unsuccessful placing of trading orders, malicious false orders, or failure, delay or error in orders.
10. Risk associated with traders’ software and hardware systems: Traders’ computer equipment and software systems may not be compatible with the provided network-based client terminal application program, which may lead to unsuccessful placing of trading orders, failure or delay in orders.
11. Risk associated with traders’ network failure: When a trader conducts trading in artwork units via the network-based client terminal application program, it may happen that the trader’s computer interface has shown successful placing of orders while such orders have not been received by the trading host server of the Exchange, resulting in a risk that the trader cannot purchase or sell the artwork units; likewise, it may also happen that the trader’s computer interface has shown unsuccessful execution and so the trader reissues his trading orders, such that the trading host server of the Exchange has received two consecutive trading orders and executions are completed as per such orders, thus posing a risk of repeated trading to the trader.
12. Other risks: Leakage of passwords, misoperation, improper investment decisions and other causes may result in losses to the trader; other party’s malicious action while a trader fails to promptly exit from the system after placing online orders and hotkey operations may result in losses; the failure of prompt exit after online trading may also expose the trader to hacker attacks and result in losses. All the abovementioned losses shall be borne by the trader at his own risk. When the traders are in the process of trading in artwork units, any profit guarantee or no-loss commitments given by others are groundless, and any such commitments will not reduce the risk exposure to losses.
Traders may suffer from loss of funds due to the abovementioned risks, or resulting in loss of funds due to data calculation errors or deemed invalidity of transactions caused by the abovementioned risks. In the course of trading, traders shall ensure that they have a relatively objective and rational understanding of the risk factors that they may be exposed to.
Article 3 Traders shall open a trading account with the Exchange before they start trading in artwork units in the market of the Exchange. When opening a trading account, traders shall fill in the account opening information in accordance with the requirements of the Exchange. The opening of any trading account by any employee of the Exchange or any of his relatives will not be accepted by the Exchange. Any legal consequence and legal liability arising from the traders’ provision of incorrect information or intended provision of false information shall be borne by such traders.
Article 4 Traders’ artwork units shall be credited to their respective trading accounts.
Article 5 When opening a trading account, a trader shall set his trading password on his own rather than by another party on his behalf. The trader shall also change his password on a non-periodic basis and increase the complexity of password to ensure the confidentiality and security of password. Passwords may be changed during normal trading hours.
Article 6 Traders may proceed with the relevant procedures regarding funds transfer once their trading accounts are opened.
Article 7 In the event that any of the non-compliance events stipulated in the trading rules of the Exchange occur or any trader is in violation of laws or regulations in his operation, the Exchange shall have the right to impose restrictions on such trader’s trading account in accordance with the “HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Provisional Rules Governing the Trading in Artwork Units”.
Article 8 The amount of each transfer-in of funds and the number of transfer-in of funds within a day to be made by traders are subject to the relevant agreements entered into between such traders and the clearing bank. The amount of each transfer-out of funds and the number of transfer-out of funds to be made by traders within a day are subject to the announcements made by the Exchange.
Article 9 According to the laws in Hong Kong, the Exchange may not pay any interest to traders.
Article 10 Where there is a change in a trader’s important information, the Exchange shall promptly be notified of such change, and the procedures related to registration of such change shall be handled as soon as possible.
Article 11 The Exchange may require a trader to make rectification within a specified period of time if any of the following circumstances occurs; if the trader fails or refuses to make rectification within the specified period, the Exchange shall have the right to impose restrictions on his trading, until his qualifications as a trader is revoked:
1. Where the Exchange has identified that there are material discrepancies between the information and documents provided by the trader, or the trader has provided false information or documents;
2. Where the Exchange has identified that any source of funding of the trader is illegal;
3. Where the trader has materially jeopardised the legal rights of the Exchange and has affected the order of normal operation of the Exchange and the normal order of the market.
Article 12 The Exchange strongly advises traders to keep their passwords as confidential. Actions that are processed using passwords like opening accounts, signing agreements and trading are deemed to be effective and to be taken out of the traders’ own will. Losses to traders arising from personal reasons such as the loss of passwords shall be borne by the traders themselves.
Article 13 Traders shall ensure that their trading accounts are operated and used by themselves, and all risks or losses arising from operation other than their own shall be borne by the traders themselves.
Article 14 Traders shall properly keep their trading accounts. If their trading accounts are being forged, altered or tampered due to the fault on the part of traders, losses thus incurred shall be borne by the traders themselves.
Article 15 If traders lose their trading accounts, they shall promptly report the loss to the Exchange. Losses incurred before the reporting of loss takes effect shall be borne by the traders themselves.
Article 16 Traders shall pay trading commissions and relevant expenses in accordance with the relevant regulations of the Exchange.
Article 17 Artwork display shall be organized by the offering agent or artwork holder. Once a trader’s trading order for artwork units is submitted, the trader will be deemed by the Exchange as having been fully aware of the actual situation of the artwork units and have agreed to the transaction thereof regardless of whether the artwork has been inspected on-site.
Article 18 Traders shall conscientiously enforce the relevant anti-money laundering regulations contained in international conventions or promulgated by the Hong Kong Special Administrative Region and ensure the truthfulness and validity of the identification data and account information as well as the legality of the source and nature of the transaction funds, so as to actively fulfill anti-money laundering obligations.
Article 19 Traders shall abide by anti-terrorism regulations promulgated by the United Nations and the Hong Kong Special Administrative Region to resolutely resist terrorism and any related terrorist activities.
Article 20 After the signing of this agreement, if any relevant laws are subsequently amended, the relevant terms and provisions herein shall be governed by the newly amended or revised legislation. The other unaffected terms and provisions of this agreement shall remain valid.
Article 21 If this agreement is to be amended or supplemented in accordance with laws and the provisions of the Exchange, traders shall be notified of such amendments or supplements by the Exchange in the form of announcements which shall be deemed as an integral part of this agreement and shall have the same legal effect as this agreement.
HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Agreement on the Use of Artwork
This agreement is entered into by and between traders and HongKong Takung Assets and Equity of Artworks Exchange Co., Limited Hong Kong Takung Assets and Equity of Artworks Exchange Co. Ltd. Hong Kong Takung Assets and Equity of Artworks Exchange Co. Ltd. Hong Kong Takung Assets and Equity of Artworks Exchange Co. Ltd. Hong Kong Takung Assets and Equity of Artworks Exchange Co. Ltd. (hereinafter referred to as “the Exchange”). This agreement shall have effect as a contract.
HongKong Takung’s artwork trading platform (hereinafter referred to as “Takung platform”) includes artwork unit trading (domain name: www.takungae.com), Takung online (domain name: www.takungonline.com.hk) and other sites, client terminals and possible subsequent opening of other sites/services without the need for repeated registration.
[Read carefully] Read carefully before you click “agree” in the registration process. You should read this agreement carefully and fully understand the contents of the provisions, especially the applicability of provisions and laws exempting or restricting liability and dispute resolution clause. Any questions on this agreement can be addressed to the customer service team of Takung platform for enquiry.
[Contracting] By filling in the information according to the instructions on the registration page, reading and agreeing to this agreement, and completing all the registration procedures, traders have fully read, understood, and accepted all the contents of this agreement and reached a consensus with the Exchange to become the traders of Takung platform.
I. Contents of the Agreement and Signature
1. This agreement includes the main text of the agreement and all types of rules the Exchange has issued or may issue in the future (hereinafter referred to as the “relevant rules”). All relevant rules are an inalienable part of this agreement, and have the same legal effect as the main text of the agreement. Unless otherwise specified, any exchanges and the related companies thereof specially authorized by such exchanges in respect of the services provided on Takung platform (hereinafter referred to as “the services”) are bound by this agreement.
2. Traders shall read the contents of the whole agreement carefully before using the services. If traders have any question about the agreement, they shall make enquiry to the Exchange. However, irrespective of whether traders have read the contents of this agreement carefully before using the services, traders shall be bound by this agreement provided that they use the services. Accordingly, the traders shall not claim the nullity of this agreement or request to revoke this agreement on the grounds of failure in reading the contents of this agreement or failure in receiving response from the Exchange on the enquiries made by the traders.
3. Traders agree to accept and abide by all the relevant rules of this agreement. If traders do not agree to this agreement or any of the relevant rules, traders shall immediately cease the registration/activation procedures or cease using the services.
4. The Exchange shall have the right to formulate and amend this agreement and / or any relevant rules from time to time as necessary and make announcements on the website publicly without informing traders individually. The amended agreement and relevant rules will take effect immediately following the publication thereof on the website. If traders do not agree to the relevant amendments, they shall immediately cease using the services. By continuing the use of the services, traders have accepted the amended agreement and relevant rules.
II. Registration and Account
1. Eligibility for Account Opening
Traders acknowledge that in the use of the services in the manner permitted by the Exchange, traders shall not be prohibited or restricted from trading in accordance with the relevant laws and the trading rules of the Exchange. Traders are natural persons whose age shall not be less than the legal age of majority in the jurisdiction they are located. If traders do not meet the foregoing primary eligibility requirements, traders and the guardians thereof shall be held responsible for all the consequences arising therefrom, and the Exchange shall have the right to cancel or permanently freeze the accounts of the traders, and make claims from the traders.
2. Account Description
[Access] By filling in the information according to the instructions on the registration page, reading and agreeing to this agreement and completing all the registration procedures, traders can get a trading account of Takung platform and become traders of Takung platform. The registration and clearing institution specified by Takung platform shall be responsible for the opening and management of trading accounts.
[Transfer] The trader’s account is associated with the trader’s personal information, it may not be transferred in any way, unless it is expressly provided by law or judicial decisions, or with the consent of Takung and in compliance with the procedures for the transfer of trader’s accounts provided by the rules of Takung platform, otherwise the trader shall be responsible for all liabilities arising therefrom.
3. Trader’s Information
a) In using the services, traders shall accurately and completely provide information to Takung platform according to the instructions on Takung platform, which includes but is not limited to the trader's name, identity card information, communication information, payment method, etc. Traders shall update their information from time to time to make it true, timely, complete and accurate. If there are reasonable grounds to suspect that the trader has provided false, untrue, outdated or incomplete information, the Exchange shall have the right to issue notices in respect of enquiries and/or request for rectification to the trader, and have the right to directly delete the corresponding information, suspend or terminate the services provided to traders in whole or in part. The Exchange shall not be liable therefor and the trader shall be responsible for any direct or indirect losses and adverse consequences arising therefrom.
b) Traders shall accurately fill in and timely update their email address, contact number, correspondence address and other contacts for effective communication between the Exchange or another trader and such trader. If communication with such trader through such contact methods is not possible, resulting in any losses or increase in fees arising from the use of the services by the trader, the trader shall be held fully and solely responsible. Traders understand and agree that they are obliged to maintain the validity of the contact methods they provide. Where a change or an update is required, traders shall do so in accordance with the requirements of the Exchange.
4. Account Security
Traders shall be individually responsible for the confidentiality of their account numbers and passwords, and be liable for all the activities (including but not limited to information disclosure, information release, clicking “agree” online or submitting any agreements of the relevant rules, renewing the agreement online or purchasing services, etc.) under such account numbers and passwords. Traders agree that: (a) if any unauthorized use of the trader's account number and password, or any breach of any confidentiality clauses between the traders and the Exchange is found, the trader shall immediately notify the Exchange; and (b) ensure that traders take the correct steps to leave the website/exit from the services at the end of each internet session. The Exchange cannot and will not be responsible for any losses arising from the non-compliance of this provision by the traders. Traders understand that reasonable time is required by the Exchange in respect of the request of the traders for action, the Exchange shall not be responsible for any consequences (including but not limited to any losses incurred by traders) that have been arisen before taking action.
5. Account Cancellation
Traders understand and agree that the Exchange shall have full discretion to terminate a trader’s account or the use of services for any reasons (including but not limited to the case that the Exchange considers that the trader has violated this agreement or any other relevant agreements or rules). Traders shall have the right to request the Exchange to cancel their accounts. Upon the review and approval by the Exchange, the Exchange will cancel the account of the trader, accordingly the contractual relationship between the trader and Takung platform on the basis of this agreement is terminated. After the cancellation of the trader’s account, the Exchange has no obligation to retain or disclose any information of the trader’s account to the trader, nor forward any information to the trader or any third party that the trader has not read or sent.
1. Through the services and other services provided by the Exchange and (or) other related companies, traders can trade artworks on Takung platform, participate in the activities organized by Takung platform, and use other information services and technical services.
Artworks that can be traded on Takung platform include but are not limited to various products, works or specific items related to culture and art, which are assessed and certified by the Exchange.
Traders understand and agree that the Exchange shall have the right to provide different services according to the scope of business, the services provided by the Exchange to traders at different regions may be different.
2. When a trader has a trading dispute with another trader in the process of trading on Takung platform, where the trader or either or both traders jointly apply to the Exchange for mediation, the Exchange shall have the right to make a decision on mediation based on unilateral judgment, traders understand and agree to accept the judgment and mediation decisions made by the Exchange.
3. Traders understand and agree that the Exchange shall have the right to provide the information and transaction records, and any other necessary information of the traders to any government departments (including judicial and administrative departments) upon request. If a trader is suspected of infringing on the intellectual property rights and other legitimate rights and interests of other parties, the Exchange shall have the right to provide the necessary identity information of the trader to the right holders after preliminary assessment of the existence of infringement.
4. Traders shall be solely responsible for the tax payable, as well as all fees for the hardware, software, services and other aspects arising from the use of services by traders.
IV. Guidelines for Use of Services
1. In the course of using the services of Takung platform, traders are committed to complying with the following provisions:
1) Comply with the provisions and requirements of all relevant laws, and do not violate this agreement and the relevant rules. Abide by the principle of good faith, do not violate public interest or public morality, do not commit unfair competition acts, do not harm the legitimate rights and interests of other parties.
2) Clearly understand that Takung platform is an international platform for trading of artworks, there may be different requirements and restrictions on the services and products provided by each website in light of the laws of different countries and regions promulgated from time to time, traders shall fully, timely understand and abide by the provisions of the relevant laws before trading on each website and in the course of trading. Otherwise, traders may be required to make certain adjustments and changes, or even be requested to cancel or terminate transactions, the risks and responsibilities will be solely borne by traders.
3) Conscientiously enforce the relevant anti-money laundering regulations contained in international conventions or promulgated by the Hong Kong Special Administrative Region; ensure the truthfulness and validity of identification data and account information as well as the legality of the source and nature of the transaction funds, so as to actively fulfill anti-money laundering obligations.
4) Abide by anti-terrorism regulations promulgated by the United Nations and the Hong Kong Special Administrative Region to resolutely resist terrorism and any related terrorist activities.
5) Do not release artwork or service information that is prohibited or restricted for sale by any laws, is suspected of infringing on the intellectual property rights or other legitimate rights and interests of other parties, is illegal or in violation of this agreement and the relevant rules as well as artwork or service information which the Exchange deems not suitable for sale on Takung platform.
6) Without the prior written consent of the Exchange, the information displayed on Takung platform shall not be reproduced or disseminated by any means for commercial purposes.
7) Do not interfere or attempt to interfere with the normal operation of Takung platform or any transactions or activities on Takung platform through any devices, software or routine procedures.
8) Where traders are suspected of causing harm to any third party, the traders shall individually bear all legal liabilities in their own capacity, and shall ensure that the Exchange and its related companies are waived from loss or increased costs arising therefrom. Where traders are suspected of violating the provisions of the relevant laws, this agreement or any relevant rules, and the Exchange suffers any loss, or is subject to any third-party claims, or is subject to the penalty of any government departments, the traders shall compensate the Exchange for the losses arising therefrom and (or) the fees incurred, including reasonable lawyer’s fees.
2. Traders fully understand and irrevocably grant the following rights to the Exchange and its related companies:
1) The right to make a unilateral determination on the nature of conduct of traders on Takung platform and whether a violation of this agreement and/or the relevant rules is constituted, and accordingly impose punishment or terminate the provision of services to traders without the consent of or prior notice to traders. Traders shall retain all the evidence of its own conduct and respond to the adverse consequences of failing to provide sufficient evidence.
2) The right to implement the closure of the corresponding trading orders and other operations in the event of malicious purchase which disturbs the normal trading order of the market.
3) The right to disclose on Takung platform the acts suspected to be unlawful or in breach of contract and the measures taken by the Exchange against traders. (the valid legal instruments of any administrative or judicial authority confirm the occurrence of illegal or tortious acts, or the Exchange, in its own judgment, considers that the acts of traders are suspected of violating the provisions of this Agreement and/or the relevant rules or the provisions of any applicable laws.)
4) The right to delete any information suspected to be unlawful or suspected of infringing the lawful rights of other parties or violating this agreement and/or the relevant rules, penalty shall be imposed in accordance with the relevant provisions.
5) The right to deal with all the transactions and possible trading disputes on Takung platform under the provisions of this agreement and the relevant rules. Traders agree to accept the judgment and mediation decision of the Exchange or the third party authorized by the Exchange or the third party mutually agreed by traders and the Exchange. The decision will be legally binding on traders.
6) Once a trader commits to the Exchange and (or) its related companies by any means, and the company concerned has confirmed that the trader violates the commitment, the Exchange shall have the right to take restrictive measures according to the commitment of the trader or in the manner specified in the agreement, including the suspension or termination of services to traders, and disclose the violation of the trader confirmed by the company concerned. Traders understand and agree that the Exchange is not required to verify the facts with the trader in respect of the confirmation, or otherwise obtain the consent of the trader, and the Exchange shall not be held liable to the trader for such restrictive measures or public disclosure.
7) Once a trader violates this agreement or any relevant rules, or other agreements signed with the Exchange or its related companies, the Exchange shall have the right to inform its related companies in any manner to request the adoption of restrictive measures against the trader, which include but are not limited to suspension or termination of the services provided in part or in whole, public disclosure of the violation of the trader in any websites under its operation or actual control.
8) For the data and information provided by traders, traders shall grant exclusive, global, permanent and free licensing rights (and the right for further authorization in various aspects) to the Exchange and its related companies. In addition, the Exchange and its related companies shall have the right, in whole or in part, to use, copy, revise, rewrite, translate, distribute, execute and display all information and data of traders (including but not limited to registration information, transaction data and all information displayed on the website) or produce derivative works thereof, and to include the aforesaid information in other works in any form, media or technology known at present or to be developed in the future.
9) To provide convenience to traders for the use of the services or the use of the services of other organizations (hereinafter referred to as “other services”), traders agree and authorize the Exchange to transmit the information provided or created in the process of account registration/activation and use of the services by traders to the relevant organizations that provide other services, or to obtain the information provided or created in the process of registration/activation by traders from other organizations that provide other services, or to obtain the information provided or created in the use of other services by traders. Traders agree not to pursue the liability of the Exchange or its related companies in this regard.
V. Scope of Liability and Limitation of Liability
1. As an international platform for trading of artworks, Takung platform may provide services and products on various websites with different requirements and restrictions in light of the laws of different countries and regions promulgated from time to time, traders shall fully, timely understand and abide by the provisions of the relevant laws before trading on each website and in the course of trading. All risks and liabilities arising from the restriction or cancellation of transactions due to the aforesaid reasons shall be borne by the traders themselves. For the losses caused to the Exchange arising therefrom, the Exchange shall have the right of recourse against traders.
2. Traders understand that the information on Takung platform is published by traders themselves, and there may be risks and defects. Takung platform only serves as a trading venue. The platform only serves as a venue for traders to obtain information on artworks or services, and to conduct negotiation and trading of artworks and/or services, but the Exchange is unable to control the quality, security or legality of the artworks involved in trading, the truthfulness or accuracy of business information, and the ability of the parties to the transactions in performing the obligations in trade agreements. Traders shall exercise caution and judgment in determining the authenticity, legality and validity of the relevant artworks and/or information and/or transactions, and to bear the liability and loss arising therefrom.
3. Unless otherwise specified by the law, the Exchange has no obligation to make prior examination of the information, artwork (service) information, transactions and other matters relating to the transactions of all traders. However, under the following circumstances, the Exchange shall have the right to have prior examination of the information, artwork (service) information, trading practices, and other related matters of the traders:
1) The Exchange has reasonable cause to believe that there may be material violation of law or violation of contract by a specific trader or in a specific transaction;
2) The Exchange has reasonable cause to believe that the acts of a trader on Takung platform are suspected to be unlawful or improper.
4. Traders understand and agree that the Exchange shall not be liable to any damages caused to traders in any of the following circumstances, including but not limited to losses of profits, goodwill, use of data or other intangible losses:
1) Use or failure to use services;
2) Use of the accounts of the traders or changes to the data of the traders by third parties without authorization;
3) Misunderstanding of the services by traders;
4) Any other losses related to the services not attributed to the Exchange.
VI. Termination of Agreement
1. Traders agree that the Exchange shall have the full right, on any grounds and without prior notice, to suspend or terminate the services provided to traders in part or in whole, to temporarily freeze or permanently freeze (cancel) the accounts of traders in respect of the access to Takung platform, and shall not be held liable to the traders or any third party in this regard.
2. Under the following circumstances, the Exchange shall have the right to terminate this agreement directly, and the right to permanently freeze (cancel) the accounts of traders in respect of the access to Takung platform:
1) After the Exchange terminates the provision of services to the trader, the trader is suspected of registering or using the service again directly or indirectly or in the name of another party;
2) The main contents of trader’s information provided by the trader is untrue, inaccurate, not timely or incomplete;
3) When there is a change to this agreement (including the relevant rules), the trader expressly states and informs the Exchange that he is unwilling to accept the amended agreement or relevant rules;
4) Other circumstances where the Exchange considers that services shall be terminated.
3. After the termination of the contractual relationship between a trader and the Exchange, the Exchange may claim rights against the trader according to this agreement in respect of any illegal acts or violation of this agreement and/or the relevant rules in the course of the use of services.
4. After the Exchange suspends or terminates the services provided to traders, the trading acts of traders before the suspension or termination of services shall be dealt with according to the following principles, traders shall be individually and fully responsible for any disputes, losses or increase in fees arising from the following treatment, and shall ensure that the Exchange and its related companies are waived from any loss or any fees arising therefrom;
1) Where a trader has uploaded an artwork to Takung platform before the suspension or termination of services but the artwork has not been traded, the Exchange shall have the right to remove the relevant artwork information at the time of suspension or termination of the services;
2) Where a trader has entered into a sales contract with other traders before the suspension or termination of the services, but the contract has not yet been executed, the Exchange shall have the right to remove the relevant information on the sales contract and the artwork traded thereunder;
3) Where a trader has entered into a sales contract with other traders and the contract is partially executed before the suspension or termination of the services, the Exchange may not delete the transaction, but shall have the right to notify the trading counterparty of the trader of the matter at the time of suspension or termination of the services.
Traders agree that, where traders violate this agreement or any other agreements, rules or documents relevant to the use of services, or where traders violate the legitimate rights of third parties in violation of the law, or where traders shall bear administrative or criminal liability as a result of violation of the law, the third party or the administrative and judicial organs make a claim against or impose punishment (including legal fees and other professional fees) on the Exchange and its subsidiaries, related companies, branches, directors, employees or agents, traders shall make compensation in full to the Exchange and its subsidiaries, related companies, branches, directors, employees or agents, and prevent them from suffering losses.
IX. Force Majeure
For reasons beyond the reasonable control of the Exchange, including but not limited to natural disasters, strikes or riots, material shortage or rationing, acts of war, government behaviors, breakdown of communication or other facilities or serious fatalities, resulting in the delay in or non-performance of the agreement, the Exchange shall not assume any liability towards traders.
X. Application of Law and Dispute Settlement
Any dispute, argument, disagreement or claim arising from or related to this agreement, including the existence, validity, interpretation, performance, violation or termination of this agreement, or any non-contractual disputes arising from or related to this agreement shall be referred to an institution under the management of the Hong Kong International Arbitration Centre for arbitration and, a final award shall be made in accordance with the "Hong Kong International Arbitration Centre Administered Arbitration Rules" prevailing at the time of filing for arbitration.
The laws applicable to arbitration shall be the laws of the Hong Kong. The place of arbitration shall be Hong Kong. The arbitration proceedings shall be conducted in English.
Traders and the Exchange shall have independent contractual relationship. This agreement is not intended to form or create any agency, partnership, joint venture, employment or authorization relationship. Traders agree that the Exchange shall have the right to transfer the rights and obligations in part or in whole under this Agreement due to business operations without the need for further notice to traders and obtaining the consent of traders. If any provisions hereof are rendered null and void or unenforceable, such provisions shall be revoked and the remaining provisions shall be complied with and enforced. Article headings are included simply for easy reference and do not define, limit, interpret or describe the scope or extent of the provisions in any manner. Where the Exchange does not take action against the violation of traders or other parties, it does not indicate that the Exchange withdraws the right of taking action against any subsequent or similar violation.