These OTC Terms of Service (“OTC Terms”) are effective as of 23 August 2023 (“Effective Date”)
Please read these OTC Terms carefully before proceeding to utilise VALR’s over-the-counter (“OTC”) trading services (“OTC Services”).
1.1. The VALR website https://www.valr.com, the VALR Platform and the OTC Services are made available, and are owned, by VALR (Pty) Ltd t/a VALR (registration number 2018/211274/07) (hereinafter referred to as "VALR", "we", “our" or "us"). Any reference to "VALR", "we", "our" or "us" shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
1.2. The Website shall include any and all associated mobile applications as offered or downloadable from the requisite application stores, together with any Application Programming Interface/s (“API”).
1.3. These OTC Terms are an addendum to, and are incorporated within, VALR’s general Terms of Service found at:
https://support.valr.com/hc/en-us/articles/360019021931-Terms-of-Service (“VALR’s Terms of Service”) as amended from time to time.
1.4. In the event of any inconsistencies between these OTC Terms and VALR’s Terms of Service, VALR’s Terms of Service shall prevail.
1.5. These OTC Terms, including any document incorporated by reference herein, apply to any Account Holder utilising the OTC Services.
1.6. Accessing and/or use of the OTC Services after the Effective Date will signify that the Account Holder has read, understands, accepts, and agrees to be bound, and is bound, by these OTC Terms in such Account Holder’s individual capacity and/or for and on behalf of any entity for whom the Account Holder utilises the Platform (if permitted). Further, the Account Holder represents and warrants that it has the authority to do so and that in the case of an Account Holder being a natural person, the Account Holder is a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
1.7. The acceptance of these OTC Terms by the Account Holder is a prerequisite for the use of the OTC Services.
1.8. VALR may, at its sole discretion, change, modify or update any of these OTC Terms at any time. It is and remains the Account Holder’s responsibility to check these OTC Terms and ensure that it is satisfied with such changes.
2.1. The below-mentioned definitions apply to these OTC Terms. Capitalised terms not defined herein shall bear the meaning contained in VALR’s Terms of Service:
2.1.1. “Account Holder” shall mean the person and/or entity holding a VALR Account on the Platform;
2.1.2. “Business Day” shall mean any day other than a Saturday, Sunday or official public holiday within the Republic of South Africa;
2.1.3. “Party” or “Parties” shall mean the Account Holder and/or VALR as the context requires;
2.1.4. “Platform” shall mean the online Platform on which the OTC Services are rendered; and
2.1.5. “VALR Account” shall mean the VALR Account with the corresponding profile, opened on the Platform by an Account Holder utilising the OTC Services as offered by VALR.
2.2. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she, they or it, are taken as interchangeable and therefore as referring to the same.
3. RELATIONSHIP BETWEEN VALR AND THE ACCOUNT HOLDER
3.1. VALR does not purport to be an Account Holder’s broker, intermediary, agent, or advisor and has no fiduciary relationship or obligation to an Account Holder in connection with any transactions or other decisions or activities effected by an Account Holder by using the OTC Services. No communication or information provided to an Account Holder by VALR is intended as, or shall be considered or construed as, advice or an intermediary service. VALR does not make any warranty about the suitability of any cryptocurrency, crypto token or crypto asset for trading or ownership by any Account Holder.
3.2. VALR does not act on behalf of the Account Holder in any form and VALR only provides access to the OTC Services. These OTC Terms shall not in any way constitute a partnership or joint venture between the Parties or constitute either Party an agent of the other and VALR does not exercise any discretionary authority for or on behalf of the Account Holder.
3.3. The Account Holder shall be solely responsible for all decisions made in using the OTC Services.
4. DESCRIPTION AND ATTAINABILITY OF OTC SERVICES
4.1. We, through an application by an Account Holder, provide certain Account Holders who meet certain pre-defined criteria (at VALR’s sole discretion) with access to VALR’s OTC Services, which includes, inter alia, facilitating the trading of Fiat and crypto trading pairs, as well as other services relating to same on an OTC basis.
4.2. The Account Holder hereby acknowledges and agrees that trading through VALR’s OTC Service will be anonymous and that VALR has various processes and procedures designed to prevent any disclosures of identity.
4.3. The Account Holder hereby acknowledges and agrees that:
4.3.1. Upon the acceptance of a quote, the Account Holder provides VALR with an irrevocable right to settle the requested OTC trade through its Website;
4.3.2. VALR shall settle the trade by delivering the relevant Crypto and/or Fiat to the relevant counter parties’ VALR Accounts, unless VALR explicitly agrees in writing and in its sole and absolute discretion to settle into a wallet address that is not a VALR Account. In the event that a trade is settled into a non-VALR Account, the Account Holder hereby agrees and acknowledges that VALR shall not held liable for any loss or damages arising from the provision of inaccurate or incorrect account details or wallet addresses and the Account Holder assumes full responsibility for providing accurate information as required herein. The Account Holder shall not withdraw, attempt to withdraw, transfer, attempt to transfer or alienate any Crypto and/or Fiat held on its VALR Account, which is required to satisfy the Account Holder’s obligation in relation to the OTC Services. Once a trade has been settled, it is in full and final settlement and the Account Holder’s Fiat or Crypto cannot be returned;
4.3.3. Subject to clause 4.3.4. below, OTC trades are to be pre-funded by the Account Holder and therefore the Account Holder must immediately deposit and/or hold in his/her VALR Account, the full amount of relevant Crypto and/or Fiat once the OTC trade has been accepted and before the trade is executed;
4.3.4. An Account Holder may request that settlement of an OTC trade takes place on a delayed settlement basis. In this regard, upon VALR's written consent, in its sole and absolute discretion, the Account Holder may settle their trade obligation on a delayed basis of up to 1 (one) Business Day, or such later date as VALR may agree in writing in its sole and absolute discretion;
4.3.5. In the event that the Account Holder fails to pre-fund their VALR Account in accordance with clause 4.3.2 above and a shortfall exists (“Shortfall Amount”) or VALR has agreed to one or more counterparties trading on a delayed settlement basis as per clause 4.3.4 above ("Delayed Settlement Amount"), VALR may, in its sole and absolute discretion, settle the relevant counterparty’s’ VALR Account, on behalf of the Account Holder, and in satisfaction of the counterparty’s rights in relation to the OTC Services (“Intermediary Payment”);
4.3.6. In the event that VALR settles the counterparty on behalf of the Account Holder as per clause 4.3.5 above, the Account Holder shall have an obligation to settle VALR and shall immediately (or within a timeframe specified by VALR) deposit the Shortfall Amount or the Delayed Settlement Amount to settle this obligation. The Account Holder grants VALR an irrevocable right, in addition to the rights afforded to VALR under these OTC Terms, VALR’s Terms of Service and the applicable law, to, without prior notice to the Account Holder (any such notice being waived by the Account Holder to the fullest extent permitted by law), to:
22.214.171.124. deduct and utilise any Crypto or Fiat within the Account Holder’s VALR Account to settle his/her obligation to VALR; and/or
126.96.36.199. retain any Crypto or Fiat that was to be used in settlement to the Account Holder in terms of the OTC Services until such time as the Account Holder has paid the Shortfall Amount or the Delayed Settlement Amount;
4.3.7. In the event that the Account Holder fails to deposit the Shortfall Amount or the Delayed Settlement Amount, or fails to do so at the time and date as determined by VALR, the Account Holder waives any right, title and interest in and to the Crypto / Fiat being retained under and in terms of clause 188.8.131.52 above in the amount of the Shortfall Amount or the Delayed Settlement Amount and VALR shall have the right to retain any such Shortfall Amount or the Delayed Settlement Amount as compensation for the Intermediary Payment; and
4.3.8. VALR has the right to refuse to book a trade in terms of the OTC Services for any reason and in its sole discretion.
5. ACCOUNT HOLDER’S OBLIGATIONS IN RELATION TO OTC SERVICES
5.1. In utilizing the OTC Services:
5.1.1. The Account Holder shall comply with these OTC Terms, VALR’s Terms of Service and any additional terms, policies, procedures or conditions imposed by VALR in relation to the OTC Services and the use of VALR’s Platform and Website;
5.1.2. The Account Holder shall pay any and all fees, costs and charges (“Fees”) relating to the OTC Services, if applicable, in a timely manner, including any applicable transaction fees;
5.1.3. The Account Holder shall comply with, and remain solely responsible for compliance with, any and all applicable laws within South Africa (including exchange control regulations and any tax reporting requirements imposed on the Account Holder) in utilizing VALR’s Platform as well as the OTC Services;
5.1.4. The Account Holder shall not use the OTC Services to contravene any applicable laws or regulations, or for any illegal or fraudulent purposes; and
5.1.5. It shall provide VALR with any information and documentation reasonably requested by VALR in writing, in relation to the utilization of the OTC Services.
6. CANCELLATION OF OTC SERVICES AND DEFAULT
6.1. VALR may, in its absolute and sole discretion, immediately discontinue or cancel the whole or any portion of the OTC Services being provided to an Account Holder, WITH NO LIABILITY TO AN ACCOUNT HOLDER OR ANY THIRD PARTY.
6.2. In addition to the circumstances outlined in clause 20 of VALR’s Terms of Service, VALR reserves the right to restrict, suspend or terminate an Account Holder’s Account as well as terminate any of the Account Holder’s quotes, positions or pending transactions in the event or suspicion of one or more of the occurrences below:
6.2.1. If the Account Holder commits a breach of these OTC Terms; and/or
6.2.2. If it is or becomes unlawful for the Account Holder to perform any of the obligations or undertakings under this Agreement.
6.3. In the event that the Account Holder fails to affect the settlement of an OTC trade in accordance with these OTC Terms, through inter alia, a failure to transfer the Crypto and/or Fiat prior to the trade being executed whether on pre-settled or delayed settlement terms, the Account Holder shall be in default (“Default”) and will additionally be subject to the circumstances outlined in clause 20 of VALR’s Terms of Service. In the event of Default, the Account Holder provides VALR with an irrevocable right, in addition to the rights afforded to VALR under these OTC Terms, VALR’s Terms of Service and the applicable law, to utilise any Crypto or Fiat within his/her VALR Account to settle an OTC trade with the relevant counterparty as per clause 4.3 above and VALR shall be entitled to recover from the Account Holder the full amount of any such settled amounts in accordance with clause 4.3 above and claim interest at a rate of the Prime Interest Rate set by the Reserve Bank of South Africa as well as claim any loss, costs or damages from the Account Holder and further SHALL NOT BE LIABLE FOR ANY LOSS CAUSED AS A RESULT OF THE EXERCISE OF THIS RIGHT.
7. INDEMNITY, WARRANTIES & LIMITATION OF LIABILITY
7.1. THE ACCOUNT HOLDER HEREBY INDEMNIFIES VALR TO THE FULL EXTENT PERMITTED BY THE LAW AGAINST ANY AND ALL ACTIONS, DEMANDS, CLAIMS, SUITS, PROCEEDINGS AND ALL LEGAL COSTS OR OTHER EXPENSES ARISING OUT OF: (I) THE ACCOUNT HOLDER’S USE OF THE OTC SERVICES; (II) ANY BREACH OF THESE OTC TERMS; (III) OR OUT OF ANY CLAIM BY A THIRD PARTY BASED ON ANY FACTS WHICH IF SUBSTANTIATED WOULD CONSTITUTE SUCH A BREACH OR A BREACH OF ANY OTHER RELEVANT LEGAL OR CONTRACTUAL DUTY.
7.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE OTC TERMS, VALR SHALL NOT BE LIABLE TO THE ACCOUNT HOLDER FOR ANY CLAIM FOR LOSS, DAMAGE, INJURY, COSTS, EXPENSES, FINES, PUNITIVE DAMAGES OR OTHERWISE, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL FOR ANY CAUSE OTHER THAN THROUGH VALR’S WILFUL MISCONDUCT OR GROSS NEGLIGENCE.
7.3. NOTHING IN THESE OTC TERMS IS INTENDED TO CREATE ANY ENFORCEMENT RIGHTS BY THIRD PARTIES.
7.4. THE ACCOUNT HOLDER HEREBY ACKNOWLEDGES AND AGREES THAT WHEN UTILIZING THE OTC SERVICES, THEY WILL BE TRANSACTING FOR THEIR OWN ACCOUNT AND ON AN ARMS-LENGTH BASIS.
7.5 WITHOUT LIMITING THE FOREGOING, VALR IS NOT LIABLE TO AN ACCOUNT HOLDER FOR:
7.5.1. THE LACK OF ANY FINANCIAL PROFIT MADE BY ACCOUNT HOLDER THROUGH THE USE OF THE OTC SERVICES; AND
7.5.2. ANY SITUATION WHERE AN ACCOUNT HOLDER’S MOBILE DEVICE, LOGIN DETAILS AND/OR PASSWORD IS STOLEN AND ANOTHER PERSON SUBSEQUENTLY MAKES USE OF THE OTC SERVICES WITHOUT THE ACCOUNT HOLDER’S CONSENT
8.1. In addition to the risk disclosures, assumption of risks & release of VALR from liability contained in clause 25 of the Terms of Service as well as VALR's risk disclosures document found here: https://support.valr.com/hc/en-us/articles/9451988673308-Risk-Disclosures, the Account Holder hereby agrees that:
8.1.1 Cryptocurrency trading is by its nature recognised as being high risk, which may result in capital loss being suffered by the Account Holder. The Account Holder in making use of the OTC Services confirms that they recognise these risks and accept that they bear the onus to consider the objectives, financial situation, needs and investment experience;
8.1.2. The Account Holder, by making use of the OTC Services confirms that it has the required knowledge, experience, understanding, professional advice and information to make its own evaluation of the merits and risks of any Crypto or trade, or alternatively access to the required knowledge relating to cryptocurrency to do so;
8.1.3. The Account Holder further acknowledges that they have ascertained the full nature and possible outcome of each transaction. At no time shall VALR provide advice or make recommendations to the Account Holder in respect of the provision of the OTC Services; and
8.1.4. The OTC Services will be performed in prevailing market environments, which are outside of VALR’s control and in a constant state of flux. As such, the Account Holder recognises and understands that VALR cannot control or guarantee the outcome of a transaction and VALR IS NOT LIABLE FOR ANY LOSS AS A DIRECT OR INDIRECT RESULT OF MARKET FLUCTUATION.
9.1. The Account Holder hereby agrees that, except as otherwise provided in these OTC Terms, all provisions of VALR’s Terms of Service are hereby incorporated into this OTC Agreement by reference, including but not limited to, warranties, limitations of liability, disclaimers, indemnities, unacceptable use or conduct, compliance with laws of country of residence, copyright violations, intellectual property, confidentiality, domicilium, risk disclosures, governing law and jurisdiction, disputes, severability, assignment and force majeure.
9.2. The Account Holder hereby agrees that these OTC Terms, including their incorporation of VALR’s Terms of Service by reference, sets forth the entire agreement and understanding between the parties relating to the subject matter herein and supersedes all prior agreements, whether orally or in writing, solely to the extent as they relate to the subject matter of these OTC Terms.