FTX.US User Margin Trading Agreement
This is an agreement between you, West Realm Shires Finance Inc, (“Lender”) and West Realm Shires Services Inc. d/b/a ftx.us (“Agent”, Lender and Agent, together “FTX US”) for the provision of short-term loans from Lender to you (“Agreement”). Subject to the terms and conditions below, this Agreement permits you to borrow fiat money from Lender to purchase bitcoin or other similar virtual currencies approve by Lender and Agent (“Digital Assets”) and/or borrow Digital Assets from Lender to sell for fiat money or other Digital Assets (such activities known as trading on margin) through your account on Agent’s trading platform (“FTX US Account”) found at www.ftx.us or through FTX US APIs, or for other purposes. This Agreement supplements the terms of the FTX US User Agreement that otherwise governs your use of the services provided by the Agent (collectively, the “FTX Agreements”).
To purchase or sell Digital Assets on margin, your Margin Account (as defined below) must be funded by a specified amount (described in more detail in Sections 1 and 3 below) of U.S. Dollars (“USD”) or Digital Assets approved by Lender to qualify as collateral (“Collateral Asset(s)”). Assets approved by Lender to be eligible as Collateral Assets are subject to change and are listed in your Margin Account. If the value of your Collateral Assets falls below the required maintenance level (the “Maintenance Margin Requirement”), which can be due to a decrease in the value of your Collateral Assets, an increase in the value of the Digital Assets that must be repaid pursuant to a Margin Loan (as defined below), the removal of your Collateral Assets from your Margin Account, margin requirement changes, or the determination that a Digital Asset is no longer eligible as a Collateral Asset, we may liquidate your Collateral Assets, any other assets in your Margin Account (“Non-Collateral Assets”) or in any other accounts maintained by Agent or its affiliates, as needed and in the manner we choose, without contacting you first.
1. MARGIN LOANS
1.1 Requests to Borrow.
Subject to the terms and conditions set forth in this Agreement:
1.1.1 Agent agrees to establish for your benefit and in your name a platform to receive borrowed funds and Digital Assets from Lender for the purposes specified in Section 1.3.1 of this Agreement through your FTX US Account (“Margin Account”).
1.1.2 Subject to the terms of this Agreement, Lender agrees to lend to you, and you may borrow from and repay to Lender from time to time during the term of this Agreement, USD and Digital Assets in an aggregate USD value up to the lesser of the Available Amount and the Authorized Amount (each such loan, a “Margin Loan”). The repayment obligation of a Margin Loan of Digital Assets shall, at any time, be equal to the then current Market Value (as defined below) of the lent Digital Assets plus any Applicable Forked Assets received as a result of the Borrower holding the lent Digital Assets. A Margin Loan is initiated when you place an order with Agent to buy or sell a Digital Asset for USD for credit to the Margin Account where such order is in an amount that exceeds the USD or relevant Digital Asset balance of such account at the time such order is entered (“Borrow Overdraft Order”). The amount of a Borrow Overdraft Order that exceeds the USD or relevant Digital Asset balance of the Margin Account shall constitute a Margin Loan. Notwithstanding the foregoing, no Borrow Overdraft Order may be entered unless the Net Collateral Equity remaining in the Margin Account is sufficient to satisfy the Initial Margin Percentage for such order. The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) “Applicable Forked Asset” means a Digital Asset that results from a permanent divergence in the blockchain of another Digital Asset (for example, when a non-upgraded node cannot validate blocks created by upgraded nodes that follow newer consensus rules).
(b) “Authorized Amount” is the maximum amount in USD that you may borrow from Lender under the Agreement, subject to satisfaction of the Maintenance Margin Requirements and the other terms and conditions in this Agreement. Your Authorized Amount shall be reflected in your Margin Account and is subject to change from time to time immediately and without notice.
(c) “Available Amount” is equal to the Net Collateral Equity in your Margin Account multiplied by ((1/Initial Margin Percentage) - 1).
(d) “Initial Margin Percentage” is the minimum Net Collateral Equity required to remain in the Margin Account as a percentage of the total assets in the Margin Account after the issuance of any new Margin Loan to support the creation of any such new Margin Loan, net of any transaction fees charged by Agent. Your Initial Margin Percentage shall be reflected in your Margin Account and is subject to change from time to time immediately and without notice.
(e) “Net Collateral Equity” means the value of all Collateral Assets in your Margin Account less the debt owed on Margin Loans and all fees, commissions, charges due and payable to Lender and Agent.
1.1.3 A Margin Loan initiated pursuant to Section 1.1.2 may not be in amount that would cause the amount of all Margin Loans outstanding (“Outstanding Margin Loan Amount”) to exceed the Authorized Amount.
1.1.4 No Obligation to Lend. Notwithstanding anything herein, Lender is under no obligation to make any Margin Loans to you and may decline a request to initiate a Margin Loan in its sole discretion.
1.1.5 Each separate Margin Loan extended under this Agreement is, subject to Section 8, due and payable on or before the 30th day after the Margin Loan is made (the “Loan Period”). You can pay off your loan at any time during the Loan Period by adding Collateral Assets to your Margin Account, closing your positions, or by instructing FTX US to sell your Collateral Assets on your behalf and use the proceeds of the sale to repay the loan.
1.1.6 By requesting a Margin Loan, you are instructing FTX US, after the end of the Loan Period, to open a new loan for you in the same dollar amount and subject to the same terms as the preceding loan, and to use the full amount of the loan funds to repurchase your positions at the then current exchange rate, subject to transaction fees and the terms of this Agreement.
1.1.7 FTX US allows you to freely transact in or withdraw your assets purchased on margin at any time, subject to your Net Collateral Equity remaining above the Initial Margin Percentage. At the end of each Loan Period, your account records will reflect the sale of Collateral Assets and related exchange fees (as applicable) and repayment of the loan. You may disable margin trading at any time during the Loan Period.
1.2 Purpose of Borrowing.
1.2.1 You and Lender agree that you may use the proceeds of any Margin Loan extended hereunder for the purpose of purchasing or selling Digital Assets through Agent’s trading platform, for credit to the Margin Account, or for any other purpose. Lender may, in its sole discretion, limit assets that may be purchased or sold in the Margin Account based on factors including market health, liquidity, and volatility.
1.2.2 You may only withdraw Collateral Assets (whether USD or Digital Assets) from your Margin Account if the Collateral Assets remaining in the Margin Account following such withdrawal satisfies the Initial Margin Percentage for the Outstanding Margin Loan Amount.
1.3 Conditions Precedent.
The fulfillment of a request to Lender to make a Margin Loan in response to a Borrow Overdraft Order is subject to the satisfaction, immediately before the funding of such Margin Loan, of the following conditions precedent:
1.3.1 All of your representations and warranties contained in Section 6 of this Agreement and the User Agreement are true and correct in all material respects;
1.3.2 No Event of Default (as defined below) under this Agreement or the User Agreement has occurred and is continuing; and
1.3.3 Unless otherwise agreed by the parties hereto, (i) the Outstanding Margin Loan Amount after the funding of the Borrow Overdraft Order would not exceed the lesser of the Authorized Amount and the Available Amount, and (ii) the Net Collateral Equity percentage in the Margin Account is equal or greater than the Initial Margin Percentage.
2. TERMS OF PAYMENT
2.1 Repayment of Margin Loans. You must repay any Margin Loans by either (a) selling, or instructing Agent to sell, some or all of the Digital Assets in your Margin Account for USD (or purchasing additional Digital Assets for USD, as applicable), or (b) transferring USD or Digital Assets, as applicable, into the Margin Account. To the extent permitted by applicable law, Lender, in its sole discretion, may apply Digital Assets or the USD proceeds from the sale of any Digital Assets in your Margin Account, whether such Digital Assets are considered Collateral Assets as defined in this Agreement or not, first to the payment of any interest then due, then to any outstanding fees, commissions, charges or other expenses then due to Lender or Agent, and then to the payment of any principal amount outstanding on the Margin Loans. You agree that only after all outstanding Margin Loans are repaid would the purchase or sale of a Digital Asset or incoming transfer of USD or Digital Assets result in a positive balance of USD or Digital Assets in the Margin Account.
You understand and agree that Collateral, and Non-Collateral, as applicable, may be forfeited to Lender under the terms and conditions set forth in this Agreement.
3.1 Margin Account Operation.
3.1.1 You agree to maintain at all times during the Term of this Agreement, for credit to a designated Margin Account, but subject to rights and privileges identified in this Agreement in favor of Lender, Collateral Assets greater or equal to the Maintenance Margin Requirement.
(a) “Maintenance Margin Requirement” means the USD amount equal to the (Outstanding Loan Amount) / (1 - Maintenance Margin Percentage).
(b) “Maintenance Margin Percentage” is the minimum Net Collateral Equity as a percentage of the Margin Account’s Collateral Assets that must be held in the Margin Account, to avoid Default. Your Maintenance Margin Percentage shall be reflected in your Margin Account and is subject to change from time to time immediately and without notice.
3.1.2 Eligible Collateral Assets and Haircuts. Collateral Assets include only USD and certain Digital Assets, as determined by Lender in its sole reasonable discretion. For purposes of determining your Net Collateral Equity, certain Collateral Assets may be valued on a discounted basis, which is known as a “haircut.” FTX US will not apply such a discount to USD, and certain dollar backed stablecoins that FTX US may elect to treat as USD for this purpose. Other Digital Assets may be subject to a haircut, such amount to be determined in Lender’s sole reasonable discretion. Your Margin Account shall reflect which assets are Collateral Assets and any applicable haircuts.
3.1.3 Mark-to-Market Valuation. Lender shall calculate Market Value on a continuous basis based on the prevailing value of each Digital Asset on one or more Digital Asset exchanges, including those operated by Agent. Lender has the discretion to select Digital Asset exchanges for purposes of calculating Market Value that Lender, in its reasonable judgment, believes offer a fair representation of the value of a Digital Asset.
3.2 Maintenance of Margin; No Margin Calls.
3.2.1 Upon notice from Lender, you shall (a) deliver, or instruct Agent to deliver, additional Collateral Assets to the Margin Account (i) to satisfy the Maintenance Margin Percentage as required by Lender in this Agreement and (ii) secure your performance of any obligations due to Lender hereunder.
3.2.2 Notwithstanding Section 3.2.1, you agree that you will maintain the Maintenance Margin Requirements. In the event that your Collateral Assets fail to meet the Maintenance Margin Requirement, Lender has the sole discretion to liquidate any open positions in any Collateral Assets and Non-Collateral assets in your FTX US which, in its reasonable opinion, will result in the Net Collateral Equity in the Margin Account as a percentage of the value of the remaining Collateral Assets in your Margin Account equaling or exceeding the Initial Margin Percentage.
3.2.3 Lender is not required to provide notice or margin calls before liquidating Collateral Assets and Non-Collateral Assets in the FTX US Account. Lender will establish systems reasonably designed to send you notice if the value of your Net Collateral Equity in the Margin Account falls to the margin call threshold specified in your Margin Account. To avoid Lender’s liquidation of your Collateral Assets as set forth in Section 3.3.2 above, you acknowledge and agree that it is your sole responsibility to maintain the value of the Collateral Assets in the Margin Account to equal or exceed the Maintenance Margin Requirement at all times.
3.3 Security Interest and Control Agreement.
3.3.1 In order to secure and to provide for the repayment of any Margin Loans, you hereby assign, pledge, transfer and grant to Lender, as secured party, a continuing first priority perfected security interest in, and a lien upon, all of your right, title and interest in, to and under, whether now owned, or hereafter acquired, the Margin Account and any and all other accounts maintained by Agent or its affiliates, including as Digital Assets that constitute Collateral Assets and Non-Collateral Assets, all deposits of fiat currency of any specie credited thereto, and investment property or proceeds consisting of, arising from, or relating to the foregoing.
3.3.2 Control. You hereby authorize Agent., as securities intermediary with respect to the Margin Account, and Agent agrees, to comply with all instructions from Lender, as secured party, with respect to the Margin Account as contemplated herein without further consent or direction from you or any other party. For the avoidance of doubt any Collateral Assets credited to the Margin Account are held by Agent, as securities intermediary with respect to the Margin Account, for you pursuant to the provisions of the User Agreement, subject to the provisions of this Agreement. You acknowledge and agree that the Collateral Assets are intended to be treated as Financial Assets within the meaning of Delaware UCC § 8-102(9) and that Lender, through the agreement of Agent to comply with all of Lender’s instructions to Agent, is perfecting its security interest in the Collateral Assets by control within the meaning of Delaware UCC § 9-314.
3.3.3 No Dispositions from the Margin Account without Consent of Lender. You hereby agree that you shall not, so long as Lender has a security interest in the Margin Account, direct Agent to transfer any Digital Asset or other property from the Margin Account without the written consent of Lender unless, after giving effect to such transfer, the Net Collateral Equity percentage in the Margin Account as a percentage of the mark-to-market value of Collateral Assets in the Margin Account exceeds the Initial Margin Percentage. Agent shall not permit any transfer of Digital Assets or USD that would violate this obligation.
3.3.4 Termination of Security Interest. Under the termination of this Agreement and satisfaction all of your obligations to Lender under the Agreement, all security interest in and to your Margin Account and any and all other accounts maintained by Agent or its affiliates shall be terminated.
3.3.5 You acknowledge that in order to provide the services described herein, Agent, as securities intermediary with respect to the Margin Account, must disclose to Lender statements and other information with respect to the Margin Account. Lender shall use any such information it receives from Agent solely in connection with the provision of services under this Agreement.
4. INTEREST CHARGES DISCLOSURE STATEMENT
Interest charged on any Margin Loan shall be at the applicable interest rate(s) specified in your Margin Account (the “Interest Rate”). If at any time and for any reason whatsoever, the interest rate payable on any Margin Loan made under this Agreement exceeds the maximum rate of interest permitted to be charged by Lender to you under applicable law, the parties hereto agree that such interest rate will be reduced automatically to the maximum rate of interest permitted to be charged under applicable law.
4.2 Method of Interest Computation.
Interest shall be assessed and charged hourly for every day during which any Margin Loan is outstanding. The amount of daily interest will be determined based on the following:
4.2.1 Lender will calculate for each one-hour period the maximum drawn on margin during such hour period exceeding $0.00 (“Maximum Hourly Balance”).
4.2.2 The amount of interest for each hour (“Hourly Interest Amount”) will be the product of (a) the Maximum Hourly Balance, multiplied by (b) the Interest Rate as stated herein divided by (c) the hours in a 365-day year (8,760).
4.3 Credit Against the Margin Account; Compounding.
4.3.1 Agent shall endeavor to deduct from the Margin Account and credit to the Lender the total Hourly Interest Amount to the extent that there is sufficient USD credited to the Margin Account or, if there is not sufficient USD in the Account, will be treated as a Margin Loan and added to the Outstanding Margin Loan Amount.
4.3.2 To the extent treated as a Margin Loan, Hourly Interest Amount will be added to the principal amount of the Margin Loan and interest will be compounded hourly.
5. AGREEMENT TERM
5.1 This Agreement shall be effective (“Effective Date”) as of the later of (a) the date this Agreement is executed.
5.2 You may notify Lender at least 30 days prior to any scheduled termination of this Agreement to request a renewal or extension hereof. Lender may, in its sole discretion, extend the term of this Agreement by written notice (a) confirming that the term of this Agreement is extended, and (b) the date of termination, which date shall not be more than 90 days after the date of the previously scheduled termination, and (c) any amendments that may be required by Lender as a condition to such an extension. You will be deemed to have accepted any such extension by initiating a Borrow Overdraft Order after the date of the previously scheduled termination.
5.3 Lender or Agent may terminate this Agreement (a) with notice of 3 days or (b) immediately, if Lender or Agent, in its sole discretion, deems it reasonably required to do so based upon applicable law or actions taken by U.S. federal or state governmental authorities or law enforcement. Upon notice of termination under this provision, all Margin Loans and outstanding interest payments shall become due within 10 days or such greater time as Lender identifies. You may continue requesting new Margin Loans in the interim time period. Lender, however, is under no obligation to grant any such new Margin Loans.
6. REPRESENTATIONS AND WARRANTIES
You represent and warrant to Lender that:
6.1 Authorization; Execution and Delivery, Etc.
6.1.1 This Agreement has been duly executed and delivered by you, and constitutes the your legal, valid and binding obligations enforceable against you in accordance with this Agreement’s terms.
6.2 Non-contravention. Neither the execution and delivery by you of this Agreement nor the consummation of the transactions herein or therein contemplated, nor compliance with the terms, conditions and provisions hereof or thereof by you will conflict with (i) any Applicable Law, (ii) any contractual restriction binding on or affecting you or any of your assets, or (iii) any order, writ, judgment, award, injunction or decree binding on or affecting you or any of your assets.
6.3 Financial Statements; Other Information is Complete.
6.3.1 Your legal name as set forth above is true and correct.
6.3.2 All information heretofore furnished by you to the Lender, Agent, or any other affiliate of either for purposes of or in connection with this Agreement or any transaction contemplated hereby or thereby is true and accurate in all material respects on the date as of which such information is stated or certified, and such information does not contain, when taken as a whole, on such date, any material misrepresentation or any omission to state therein, in light of the circumstances in which they were made, matters necessary to make the statements made therein not misleading in any material respect.
6.3.3 Any information provided to Lender, Agent, or their affiliates for purposes of onboarding and due diligence regarding your financial condition and your location is true and correct in all material respects.
6.4 Understanding; Swaps Determination.
6.4.1 Understanding. You understand and accept the significant risks associated with the use of margin and that the use of margin is consistent with your investment objectives.
6.4.2 Swaps Determination. You, Lender, and Agent hereby acknowledge and agree that each Margin Loan is intended not to constitute a “swap” under the Commodity Exchange Act or a “security-based swap” under the Securities Exchange Act of 1934 or regulations of the U.S. Commodity Futures Trading Commission or U.S. Securities and Exchange Commission.
6.4.3 Eligibility. You meet the eligibility and sophistication requirements set forth by FTX US in its discretion from time to time.
You agree that, so long as this Agreement is in effect or any amount payable hereunder remains unpaid:
7.1 Liens. Other than those in favor of Agent or its affiliates, you will not create, assume, incur or suffer to exist any lien on any of the Collateral Assets except liens of Lender created or permitted by or pursuant to this Agreement.
8. 8. DEFAULT
8.1 Default. If any one or more of the following events (each, an “Event of Default”) shall occur and be continuing:
8.1.1 Your Collateral Assets in the Margin Account falls below the USD value that would satisfy the Maintenance Margin Requirement.
8.1.2 Any representation or warranty made by you herein or by you in connection with this Agreement or the FTX US Agreement was incorrect in any material respect when made.
8.1.3 You violate our trading rules or otherwise engage in behavior which, in our sole discretion, reasonably compromises the integrity of our margin trading platform including, but not limited to, frequent Events of Default, disregard for margin calls or other notifications from Lender or Agent, etc.
8.1.4 You fail to make any payment of interest or principal when due.
8.1.5 You become bankrupt, insolvent or subject to any voluntary or involuntary bankruptcy, reorganization, insolvency or similar proceeding.
8.1.6 Lender’s security interest under the Agreement is not or ceases to be a first priority perfected security interest (subject to liens permitted by Section 7.5) in the Collateral Assets, Margin Account, or other accounts maintained by Agent or its affiliates.
8.1.7 A credible allegation of fraud, misconduct, embezzlement, money laundering, insider trading, market manipulation abuse or other material illegality, breach of regulation or impropriety is made against you, that in the good faith and commercially reasonable business judgment of Lender or Agent could reasonably result in reputational harm to Agent or Lender, or compromise the integrity of the markets maintained by Agent.
8.2.1 On the occurrence and during the continuance of an Event of Default under Section 8.1.6, the Margin Loans shall be immediately due and payable (together with accrued and unpaid interest thereon and any fees and costs of collection).
8.2.2 At any time after the occurrence and during the continuance of an Event of Default, Lender may, upon notification to you:
(a) In the case of any Event of Default other than under Section 8.1.6, cancel, terminate, accelerate, liquidate or close-out any or all transactions and agreements hereunder between you and Lender
(b) At such times and manner as Lender may reasonably determine based on, but not limited to, market conditions and portfolio health, sell or otherwise transfer any Digital Assets or other property which Lender or its affiliates may hold for you or which has been pledged to Lender or its affiliates by you and apply the proceeds to the discharge of your obligations, set-off, net and recoup any obligations to you against any obligations to Lender or its affiliates, and
(c) Exercise all rights and remedies of a secured creditor in respect of all assets in which Lender or its affiliates has a security interest under the Uniform Commercial Code (“UCC”) (whether or not the UCC is otherwise applicable in the relevant jurisdiction), cover any open positions of yours (by buying, selling, or borrowing Digital Assets or USD or otherwise) and take such other actions as Lender reasonably deems appropriate. You shall remain liable for any deficiency and shall promptly reimburse Lender for any loss or expense incurred thereby, including losses sustained by reason of an inability to borrow any Digital Assets or other property sold for your Account. You agree to promptly notify Lender upon the occurrence of an Event of Default, but the failure to provide such notice shall not prejudice Lender’s right to determine that an Event of Default has occurred.
8.2.3 The parties hereto agree that the prices of Digital Assets are (a) volatile and thus may decline speedily in value, and (b) Digital Assets are of a type customarily sold on a recognized market. Accordingly, the parties hereto agree that it would not be necessary under Section 9-611(b) of the UCC to give notice of any proposed disposition of Collateral Assets or Non-Collateral Assets consisting of Digital Assets.
8.2.4 Liquidations and Cure of Default. Notwithstanding the foregoing provisions, Default under Section 8.1.1 will be considered cured if Lender is able to liquidate in a reasonable period of time a sufficient amount of Collateral Assets to restore its Margin Account in accordance with the Initial Margin Percentage so that the Net Collateral Equity in the Margin Account is equal to or greater than the Initial Margin Percentage.
8.2.5 Liability for Costs of Collection. To the extent permitted by applicable, you will be responsible for the reasonable costs and expenses of collection of any unpaid deficiency in your Margin Account including, but not limited to, attorney’s fees incurred and payable or paid by you.
9.1 Conflicts with Other Agreements; Merger and No Other Writings. In the event of a conflict between any provision of this Agreement and the User Agreement between you and Agent, this Agreement shall prevail. The FTX US Agreements, each as amended from time to time pursuant to the terms of the FTX US Agreements, constitute the complete and entire statement of all conditions and representations with regard to the subject matter of the FTX US Agreements and supersede all prior writing or understandings whether written or oral.
9.2 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Delaware without regard to Delaware’s conflict, or choice, of laws principles.
9.3 Choice of Forum. Each party agrees that any dispute, claim or controversy arising out of or relating to this Agreement or use of the margin account (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. Each party hereto agrees that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and each other party are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
9.4 Exceptions. As limited exceptions to Section 9.3 above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
9.5 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won't seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. Even if a party prevails in an arbitration each party will remain responsible for its attorneys' fees and costs and won't seek to recover them.
9.6 Injunctive and Declaratory Relief. Except as provided in Section 9.4(ii) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that a party prevails on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
9.7 Class Action Waiver. YOU AND EACH OTHER PARTY AGREES THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of Sections 9.3 through 9.6 shall be null and void.
Counterparts. This Agreement may be executed in facsimile counterparts, each of which will be deemed an original instrument and all of which together will constitute one and the same agreement.