LAST UPDATED: MAY 2023
1 Glossary
1.1 The definitions used in this KRAYON Agreement and rules about how to interpret it are set out in Clause 28 (Glossary).
2 Services
2.1 KRAYON shall, in accordance with this KRAYON Agreement, subject to Customer’s compliance with the terms and conditions of this Agreement (including payment obligations) grants to Customer a revocable, non-exclusive, non-sublicensable, non-transferable, terminable license, during the Term of this Agreement, to access and use the Services for, in accordance with the terms any relevant Order Form.
2.2 KRAYON may change the content and interfaces of the Services to keep the Services up to date with market requirements. Where such a change will impact how the Customer uses the Services, KRAYON will inform the Customer of the details of the change and/or publish details in the Guidance Documentation. The Customer shall be responsible for its own costs with respect to these changes.
3 Additional Service Providers
3.1 In order to use the Additional Services, the Customer must:
3.1.1 satisfy any acceptance criteria and checks required by KRAYON and/or an Additional Service Provider from time to time (Customer Acceptance Checks); and
3.1.2 if required by the relevant Additional Service Provider, enter into a direct agreement with the relevant Additional Service Provider.
3.2 The Customer will not be able to use the Additional Services unless the Customer:
3.2.1 satisfies the Customer Acceptance Checks;
3.2.2 has a valid agreement with the relevant Additional Service Provider,
3.3 KRAYON is not party to any agreement between the Customer and any Additional Service Provider and has no liability in connection with any such agreements.
3.4 The Customer shall comply with any relevant Additional Service Provider Terms
4 License Restrictions
4.1 Customer will not, nor will it authorize or assist others to:
4.1.1 circumvent, disable or otherwise interfere with security related features of the Services or features that enforce limitations on use of the Services;
4.1.2 disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Services or otherwise discern the source code of the Services except and solely to the extent permitted under applicable law notwithstanding this restriction;
4.1.3 use the Services in any way or to provide services to third parties not in accordance with this KRAYON Agreement;
4.1.4 distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Services or any of Customer’s rights therein;
4.1.5 violate or abuse password protections governing access to the Services;
4.1.6 interfere or attempt to interfere with the integrity or proper working of the Services;
4.1.7 use the Services in any unlawful manner or in breach of this KRAYON Agreement;
4.1.8 use KRAYON’s name, logo or trademarks without prior written consent;
4.1.9 delete, remove, obscure or in any manner alter the copyright, trademark, and other KRAYON or any other third parties’ intellectual proprietary rights notices appearing on or in the Services or any component thereof;
4.1.10 use the Services in order to conduct any comparisons, competitive analysis, penetration testing, vulnerability assessment, aimed identified security vulnerability, or other benchmarking activities, either alone or in connection with any other services or hardware without the prior written consent of the KRAYON; and
4.1.11 use the Services other than as permitted herein.
5 Customer Obligations
5.1 The Customer shall:
5.1.1 comply with the Guidance Documentation, Acceptable Use Policy and any other instructions, guidance, procedures and/or requirements given by KRAYON from time to time in accordance with any timescales specified by KRAYON;
5.1.2 not make the Services available to any third party or use the Services on behalf of a third party other than in accordance with this KRAYON Agreement; and
5.1.3 prevent unauthorized access to or use of the Services and notify KRAYON promptly of any such unauthorized access or use.
5.2 The Customer assumes full liability and responsibility for the acts and omissions of its Permitted Users and will take all reasonable steps to ensure that no unauthorised persons shall have access to any of the Services and, with respect to named or specified Permitted Users, maintain an up-to-date list of all such users and make such list available for inspection at KRAYON’s reasonable request.
6 Compliance
6.1 Each party shall at all times comply with all Applicable Law in relation to the performance of its obligations and the exercise of its rights under this KRAYON Agreement.
6.2 KRAYON and/or any Additional Service Provider may be required or may consider it prudent to take Compliance Steps in relation to the provision of any of the Services. KRAYON shall not be liable for any loss suffered by the Customer as a result of KRAYON or any Additional Service Provider taking any Compliance Steps.
7 Information about the Customer
7.1 Upon request by KRAYON, the Customer shall provide KRAYON with financial, ownership and other information about the Customer and its business as reasonably requested to assist with the ongoing satisfaction of the Customer Acceptance Checks and to comply with Applicable Law.
7.2 The Customer must notify KRAYON immediately if there is a change in the information supplied to KRAYON (including information supplied in the relevant Order Form) about circumstances affecting the Customer or its business, giving full details of the change. This includes any actual or impending Insolvency Event, Change of Control of the Customer or a sale or other disposal of all or any material part of the Customer’s assets.
8 Fees and Payment
8.1 As consideration for the provision of the Services under this KRAYON Agreement, the Customer shall pay the Fees, as set forth in the relevant Order Form.
8.2 Unless otherwise specified in the relevant Order Form, all Fees shall be due and payable by the Customer within thirty (30) days of receipt of an invoice, and Licensee shall affect payment of all Fees by wire transfer or credit card.
8.3 All Fees payable hereunder shall not be subject to any set-off or deduction. All Fees are exclusive of any applicable taxes, duties and similar governmental charges, and, except with respect to income taxes of KRAYON, the Customer is responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with this KRAYON Agreement. The Customer agrees to hold harmless KRAYON from all claims and liability arising from the Customer’s failure to report or pay such taxes, duties or other governmental charges.
8.4 Where any sums due under this KRAYON Agreement are not paid in full by the due date then KRAYON may charge interest at eight percent (8%) above the base rate of the Bank of England from time to time in force. Interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgement.
8.5 KRAYON reserves the right to change the Additional Service Provider Fees at any time. Notwithstanding the foregoing, KRAYON shall use commercially reasonable efforts to provide the Customer with prior notice of any such change.
9 Warranties
9.1 Each party warrants that:
9.1.1 it is duly organised and validly existing under the laws of the jurisdiction of its incorporation and has been in continuous existence since establishment;
9.1.2 it has the right, power, capacity and authority, and all necessary licences, permits and consents (including those required by Applicable Law) and has taken all actions necessary, to execute, deliver and exercise its rights, and perform its obligations, under this KRAYON Agreement;
9.1.3 it shall co-operate with the other in all matters relating to the Services; and
9.1.4 it shall perform its obligations under this KRAYON Agreement in accordance with Applicable Law.
9.2 The Customer warrants that:
9.2.1 all information provided to KRAYON pursuant to this KRAYON Agreement, including in the relevant Order Form, is true, accurate and complete and will remain true, accurate and complete for the Term; and
9.2.2 it has entered into all necessary agreements with Additional Service Providers in order to receive the Services.
9.3 KRAYON warrants that it will perform the Services with reasonable care and skill.
9.4 Other than set out above, the Services are provided on an "as is" and "as available" basis, with no further promises made by KRAYON around availability of the Services. Specifically, KRAYON does not give any implied warranties of title, merchantability, fitness for a particular purpose and/or non-infringement. KRAYON does not make any promises that access to the Services, or any of the materials contained therein, will be continuous, uninterrupted, timely, or error-free. Any materials, information, view, opinion, projection or estimate presented via the Services is made available by KRAYON for informational purposes only, and is subject to change without notice. The Customer must make its own assessment of the relevance, timeliness, accuracy, adequacy, commercial value, completeness and reliability of the materials, information, view opinion, projection or estimate provided through the Services. Accordingly, no warranty whatsoever is given by KRAYON and no liability whatsoever is accepted by KRAYON for any loss arising whether directly or indirectly as a result of the Customer acting on any materials, information, view, opinion, projection or estimate provided in or made available through the Services.
9.5 The Services are not intended to provide specific investment, tax or legal advice or to make any recommendations about the suitability of any investments or products for any particular investor. The Customer should seek your own independent financial, legal, regulatory, tax or other advice before making any investment in Digital Currencies.
9.6 Except for the express statements set forth in the KRAYON Agreement, the Customer hereby acknowledged and agreed that it has not relied upon any other statement or understanding, whether written or oral, with respect to its use and access of the Services.
9.7 The Customer acknowledges that there are risks associated with using the Services. The Customer agrees and understands that its access to and use of the Services is at the Customer’s own risk. The following risks are by no means an exhaustive list of risks.
9.7.1 Technical Risk. While the Services has been extensively tested, there are technical and related risks that are beyond KRAYON’s reasonable control, including risk that the underlying protocols of supported networks undergo material changes to their operating rules, risk of failure of hardware, software and internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within the Account. KRAYON will not be responsible or liable to the Customer for any such related losses and takes no responsibility for use of the Services that involves user error such as forgotten passwords, incorrectly construed transactions, or mistyped wallet addresses; server failure or data loss; corrupt files; unauthorized access; or any unauthorized third-party activities, including without limitation the use or introduction of computer viruses, or other malware, phishing, spoofing or other means of attack against the Customer or the Services. The Customer further accepts and acknowledges that KRAYON will not be responsible for any communication failures, disruptions, errors, distortions or delays the Customer may experience when using the Services, regardless of the cause.
9.7.2 Risk of Reliance on Third Parties. The Services may rely, in whole or partly, on third-party software and the continued development and support of third parties. There is no assurance or guarantee that those third parties will maintain their support of their software, which might have a material adverse effect on the Services beyond KRAYON’s reasonable control.
9.7.3 Regulatory Risk. While every effort has been taken to ensure that the Services are compliant with Applicable Laws, the approach of regulatory agencies with regard to applying regulation to the Services across various jurisdictions may be subject to change at short notice and/or may not always be foreseeable. It is difficult to predict, in particular, how or whether legislatures or regulatory agencies may make or implement changes to law and regulation affecting Digital Currencies, including in connection with the Services. Regulatory actions could impact KRAYON in various ways, and thus the Services may not be available to customers in certain jurisdictions. KRAYON may, at its sole discretion, choose to suspend or terminate Service wherever it feels that regulatory action may be taken that would adversely affect the provision of the Services or otherwise impact the regulatory status of the underlying Digital Currencies.
9.7.4 Financial Risk. As with any asset, the value of Digital Currencies can increase or decrease and there can be a substantial risk that the Customer loses money buying, selling, holding, or investing in Digital Currencies. The risk of loss in trading Digital Currencies may be substantial and losses may occur over a short period of time. The price and liquidity of Digital Currencies have been subject to large fluctuations in the past and may be subject to large fluctuations in the future. The Customer should, therefore, carefully consider whether such use is suitable for the Customer in light of its circumstances and financial resources. The Customer agrees and understands that it is solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for itself, and that KRAYON does not give advice or recommendations regarding Digital Currencies or anything else, including the suitability and appropriateness of, and investment strategies for, these Digital Currencies. The nature of Digital Currencies may lead to an increased risk of fraud or cyber attack, and may mean that technological difficulties experienced by KRAYON may prevent the access to or use of the Customer’s Digital Currencies.
9.7.5 Taxation Risk. It is possible that the Customer’s intended treatment of the Services may be challenged by tax authorities. The Customer must seek its own tax advice in connection with the Services provided by KRAYON, which may result in adverse tax consequences to the Customer, including, without limitation, withholding taxes, transfer taxes, value-added taxes, goods and services tax, income taxes and similar taxes, levies, duties or other charges and tax reporting requirements. The Customer agrees and understands that KRAYON does not provide legal, tax, or investment advice, and to the extent the Customer deems necessary, it will consult with qualified professionals in its own jurisdiction prior to using the Services.
10. Insurance
10.1 The Customer is solely responsible for maintaining insurance policies for its Digital Currency and/or its products, services and operations.
11 Indemnities
11.1 Save to the extent caused by negligence or fraud by KRAYON, the Customer shall indemnify and keep KRAYON indemnified on demand against all loss, liability and cost (including each loss, liability and cost incurred as a result of defending or settling a claim alleging such a liability) arising as a result of:
11.1.1 use of the Services by any person who is not authorised to use the Services;
11.1.2 any claim brought against KRAYON by any third party (including an Additional Services Provider) in connection with the Customer’ use of the Services;
11.1.3 any breach of the Additional Service Provider Terms;
11.1.4 any breach of Clause 5 (Customer Obligations);
11.1.5 any breach of Clause 17 (Confidentiality);
11.1.6 any breach of Clause 18 (Personal Data); and
11.1.7 any misuse of the KRAYON Intellectual Property Rights.
12 Access and Availability
12.1 Access to the Services may become degraded or unavailable during times of significant volatility or volume. This could result in limitations on access to an Account or the Services and may also lead to support response time delays.
12.1.1 although KRAYON strives to provide the Customer with excellent service, KRAYON does not guarantee that the Services will be available without interruption or that the Customer’s Account will be accessible; and
12.1.2 please note that KRAYON’s customer support response times may be delayed, including during times of significant volatility or volume, especially for non-trust and safety issues.
12.2 Under no circumstances shall KRAYON be liable for any alleged damages arising from service interruptions, delays in processing transactions, or lack of timely response from KRAYON customer support.
13 Liability
13.1 If the Customer has a dispute with one or more users of the Services (other than KRAYON), the Customer agrees that neither KRAYON nor its Affiliates or Additional Service Providers, nor any of KRAYON’s respective officers, directors, agents, joint venturers, employees and representatives, will be liable for any claims, demands and damages (actual and consequential, direct or indirect) of any kind or nature arising out of or in any way connected with such disputes.
13.2 The Customer acknowledges that using Digital Currencies and blockchain-based solutions, networks and protocols may involve serious risks. It is the Customer’s duty to learn about all these risks. For example, the value of Digital Currencies can change rapidly, increase or decrease unexpectedly, and potentially even fall to zero. Even if KRAYON alerts the Customer to some of the risks involved with Digital Currencies, their protocols and networks, KRAYON has no responsibility to alert the Customer of all these risks. KRAYON has no control over, and makes no representations regarding the value of Digital Currencies, or the security of their networks or protocols. KRAYON does not own or control the underlying software protocols which govern the operation of Digital Currencies. Digital Currency protocols are subject to changes in protocol rules (referred to as “forks”), and that such forks may materially affect the value, function, or name of the Digital Currencies. The Customer acknowledges and agrees:
13.2.1 that KRAYON is not responsible for operation of the underlying digital asset protocols and that KRAYON makes no guarantee of their functionality, security, or availability; and
13.2.2 if a fork occurs, KRAYON may temporarily suspend the Services relating to the Digital Currency affected, and KRAYON may configure or reconfigure its services or decide not to support the forked protocol entirely, but allow the Customer to transfer the affected Digital Currency.
13.3 KRAYON cannot warrant and do not warrant that the content available via the Services is accurate, complete, reliable, current, or error-free. KRAYON reserves the right to make changes in or to the Services and/or the content therein, or any part thereof without the requirement of giving the Customer any notice prior to or after making such changes to the Services and/or the content therein.
13.4 Nothing in this KRAYON Agreement limits or excludes any party’s liability for fraud, fraudulent misrepresentation, death or personal injury arising from such party’s negligence or any other liability which may not be limited or excluded by Applicable Law.
13.5 Except as expressly stated otherwise in this KRAYON Agreement and subject to Clause 13.4, all warranties and representations whether explicit or implied by statute, common law or otherwise are excluded.
13.6 Subject to Clause 13.4, neither party is liable to the other for any of the following (whether direct or indirect):
13.6.1 loss of profit;
13.6.2 diminution in value;
13.6.3 loss of or corruption to data;
13.6.4 loss of business;
13.6.5 loss of opportunity; or
13.6.6 harm to reputation or loss of goodwill.
13.7 Subject to Clause 13.4, KRAYON is not liable for any loss arising:
13.7.1 from loss of any Digital Currency;
13.7.2 from any Force Majeure Event;
13.7.3 from the Customer’s use of any Additional Services;
13.7.4 as a result of KRAYON or any Additional Service Provider taking Compliance Steps; and
13.7.5 from any act or omission where KRAYON reasonably believes that act or omission is necessary to prevent a crime or comply with Applicable Law or the requirements of an Additional Service Provider.
13.8 Subject to Clause 13.4, KRAYON's maximum total liability under or in connection with this KRAYON Agreement in each Quarter in respect of all claims in the relevant Quarter shall be the greater of:
13.8.1 the amount of Fees paid by the Customer to KRAYON in that Quarter; or
13.8.2 one thousand pounds (£1,000).
14 Term, Termination and suspension
14.1 This KRAYON Agreement begins on the Start Date and continues until either party ends it in accordance with the provisions of this Clause 14.
14.2 The Customer may terminate this KRAYON Agreement at any time by providing no less than one (1) months’ written notice to KRAYON.
14.3 KRAYON may terminate this KRAYON Agreement in whole or in part, suspend, restrict, or terminate the Customer’s access to any or all of the Services and/or deactivate or cancel the Customer’s Account (as defined in the Account Schedule) for any reason by providing the Customer with at least one (1) month's written notice. The Customer acknowledges that KRAYON’s decision to take certain actions, including limiting access to, suspending, or closing the Customer’s Account, may be based on confidential criteria that are essential for the purposes of KRAYON’s risk management and security protocols. The Customer agrees that KRAYON is under no obligation to disclose the details of its risk management and security procedures to the Customer.
14.4 KRAYON may suspend or terminate this KRAYON Agreement in whole or in part with immediate effect by notifying the Customer if:
14.4.1 the Customer commits a material breach of any of the terms of this KRAYON Agreement which breach is irremediable or (if such a breach is remediable) the Customer fails to remedy that breach within one (1) month of the Customer being notified in writing to do so;
14.4.2 the Customer fails to pay the Fees when due;
14.4.3 the Customer suffers an Insolvency Event;
14.4.4 the Customer fails to satisfy the Customer Acceptance Checks;
14.4.5 the Customer fails to comply with the provisions of Clause 7 (Information about the Customer);
14.4.6 the Customer breaches any of the warranties given in Clause 9 (Warranties);
14.4.7 KRAYON reasonably believes it is not able to continue providing the Services due to security concerns;
14.4.8 KRAYON deems it necessary to do so in order to comply with Applicable Law or the requirements of an Additional Service Provider (including, but not limited to instances where KRAYON or an Additional Service Provider suspects fraud or any criminal activity);
14.4.9 KRAYON is no longer able to offer the Services, wholly or partly;
14.4.10 there is a significant change or KRAYON suspects a significant change is impending in relation to the nature, level, scope or control of the Customer’s business or its financial position;
14.4.11 the Customer’s activities are or are likely to have an adverse impact on the business, commercial arrangements, reputation and/or goodwill of KRAYON and/or any Additional Service Provider;
14.4.12 the Customer’s agreement with an Additional Service Provider is suspended or terminated; and
14.4.13 a Force Majeure Event continues for a period of at least ten (10) Business Days.
14.5 If this KRAYON Agreement is terminated:
14.5.1 the Customer must stop using the Services;
14.5.2 any licences granted by a party pursuant to this KRAYON Agreement shall terminate;
14.5.3 the Customer must return, destroy or permanently erase any Confidential Information provided to KRAYON. The Customer must confirm in writing to KRAYON that this has been done using the contact information referred to in Clause 19.2 but may retain a copy of any Confidential Information required to do so by Applicable Law; and
14.5.4 the termination will not affect any provision of this KRAYON Agreement that is intended to come into force or continue in force following termination.
15 Intellectual Property
15.1 Each party's Intellectual Property Rights are the property of that party or its licensors and all rights in it are expressly reserved. Except as expressly provided otherwise, nothing in this KRAYON Agreement shall operate to transfer any Intellectual Property Rights from one party to the other.
15.2 KRAYON grants the Customer a non-exclusive, revocable, non-transferable, non-sublicensable, royalty free licence to use the KRAYON Intellectual Property Rights for the purpose of using and obtaining the benefit of the Services for the Term. The Customer may only use the KRAYON Intellectual Property Rights in the manner and form set out in this KRAYON Agreement (including the Guidance Documentation and Acceptable Use Policy).
15.3 Customer hereby agrees that KRAYON can use Customer’s company logo royalty-free and free-of-charge for marketing and advertising purposes, such as, but not limited to: placement on the KRAYON Site, broadcasting through KRAYON’s newsletters, advertisements, testimonials.
16 Support and Feedback
16.1 KRAYON may, at its sole discretion, provide Support Services.
16.2 If KRAYON receives any feedback (e.g., questions, comments, suggestions or the like) regarding the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to KRAYON and that such shall be considered KRAYON’s Confidential Information and the Customer hereby irrevocably and unconditionally transfers and assigns to KRAYON all Intellectual Property Rights it has in such Feedback and waives any and all moral rights that the Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by KRAYON at its sole discretion, and that KRAYON in no way shall be obliged to make use of any kind of the Feedback or part thereof.
16.3 KRAYON may use data derived from the Customer’s use of the Services to improve and/or develop its products and/or services for the benefit of its business and/or the generality of its customers.
17 Confidentiality
17.1 Any Confidential Information disclosed by one party to the other party in the performance of this KRAYON Agreement will be treated by the recipient as confidential and, subject to Clauses 17.2 to 16.4 below, the recipient shall not:
17.1.1 use the Confidential Information for any purpose other than the performance of this KRAYON Agreement; nor
17.1.2 communicate or disclose (whether in writing or orally or in any other manner) the Confidential Information to any third party without the prior written consent of the disclosing party except as necessary for the performance of this KRAYON Agreement.
17.2 Notwithstanding Clause 17.1 above, the receiving party may disclose Confidential Information to its Related Parties, but only:
17.2.1 to those Related Parties who strictly need to know the Confidential Information for the purpose of performing the receiving party's obligations under this KRAYON Agreement except that, subject to KRAYON complying with the remainder of this Clause 17.2, KRAYON may share Confidential Information with its Affiliates in the ordinary course of business; and
17.2.2 where the Related Party is made aware prior to the disclosure of any part of the Confidential Information that that information is confidential and where the receiving party ensures that the Related Party owes a duty of confidence on materially the same provisions as contained in this KRAYON Agreement,
and the receiving party shall at all times remain liable for any actions and/or omissions of any of its Related Parties in relation to any Confidential Information.
17.3 The provisions of Clauses 17.1 and 17.2 of above shall not apply to any Confidential Information which:
17.3.1 is publicly available at the time of its disclosure or becomes publicly available (other than as a result of disclosure by the receiving party or any of its Related Parties contrary to the provisions of this KRAYON Agreement);
17.3.2 was lawfully in the possession of the receiving party or any of its Related Parties (as can be demonstrated by its written records or other reasonable evidence) free of any restriction as to its use or disclosure prior to receipt from the disclosing party;
17.3.3 was developed by or for the receiving party or its Related Parties at any time independently of the information disclosed to it by the disclosing party (as can be demonstrated by its written records or other reasonable evidence);
17.3.4 following disclosure by the disclosing party, becomes available to the receiving party or any of its Related Parties (as can be demonstrated by its written records or other reasonable evidence) from a source other than the disclosing party (or any of its Related Parties), which source is not bound by any obligation of confidentiality or non-use owed, directly or indirectly, to the disclosing party (or any of its Related Parties) in relation to such information; or
17.3.5 the receiving party is required to disclose by law or governmental regulation or by any competent court, body, stock exchange or regulator, provided that the receiving party shall (to the extent permitted by Applicable Law) notify the disclosing party of the Confidential Information to be disclosed and the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure must be made.
17.4 The provisions of Clauses 17.1 and 17.2 above shall not apply to KRAYON in relation to the Confidential Information of the Customer in certain circumstances and KRAYON may disclose and/or use the Confidential Information relating to the Customer:
17.4.1 to any Additional Service Provider if required by KRAYON's arrangements with the Additional Service Provider; and
17.4.2 for its legitimate business purposes, including product development, assessment, testing and analysis.
17.5 Each party undertakes in relation to the other party's Confidential Information:
17.5.1 not to copy, reproduce or reduce to writing any part thereof except as may be reasonably necessary for performance of this KRAYON Agreement; and
17.5.2 to ensure proper and secure storage of all Confidential Information to a reasonable standard and to apply at least the same security measures and degree of care as those which the receiving party applies to its own confidential information.
18 Data Protection
18.1 KRAYON and the Customer shall agree the scope, nature and purpose of processing by KRAYON, the duration of the processing and the types of Personal Data and categories of Data Subject (as defined in the Data Protection Laws) by separately executing a Data Processing Agreement.
19 Notices
20 Force Majeure
21 Transfers
22 Third party rights
23 Non-Waiver
If either party waives any of its rights under this KRAYON Agreement, it does not mean that it will waive that right in the future.
24 Severability
If any clause in this KRAYON Agreement is held to be unlawful or unenforceable, it will be severed to the extent that it is held to be unlawful or unenforceable from the remaining clauses (which shall continue in full effect).
25 Changes
KRAYON may change the terms and conditions of this KRAYON Agreement (including the Fees) at any time by notifying the Customer. If the Customer does not agree with any such changes then it may terminate this KRAYON Agreement at any time before the proposed changes come into force by notifying KRAYON.
26 Entire Agreement
This KRAYON Agreement constitutes the entire agreement, and supersedes any previous agreements, between the parties relating to the subject matter of this KRAYON Agreement. Each party acknowledges that it has not relied on or been induced to enter into this KRAYON Agreement by a representation other than those expressly set out in this KRAYON Agreement and those other agreements and documents. A party is not liable to another party in equity, contract or tort (including the tort of misrepresentation or in any other way) for a representation (other than a fraudulent misrepresentation) that is not set out in this KRAYON Agreement.
27 Governing Law and Jurisdiction
English law applies to this KRAYON Agreement and the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim arising out of or relating to this KRAYON Agreement, its subject matter or formation (including non-contractual disputes or claims).
28 Glossary
Acceptable Use Policy means the KRAYON acceptable use policy made available by KRAYON to the Customer as amended by KRAYON from time to time.
Account means the account made available by KRAYON to the Customer through which the Customer can access the Services.
Account Security Information means the security credentials issued to Permitted Users.
Additional Service Provider means a third party identified in a relevant Schedule which the Customer intends to receive Additional Services from, in accordance with the terms of this KRAYON Agreement.
Additional Service Provider Fees means the fees payable by the Customer and chargeable by the relevant Additional Service Provider, together with such additional fees as determined by KRAYON, as set out in the relevant Order Form.
Additional Payment Method Terms means any additional terms prescribed by an Additional Service Provider, as set out in a relevant Schedule.
Affiliate means any entity that directly or indirectly controls, is controlled by or is under common control with, another entity.
API means KRAYON’S application programming interface(s).
Applicable Law means, in relation to a party, all law and regulations, as in force from time to time.
Business Day means a day (excluding Saturdays, Sundays and public holidays) when banks are generally open for business in England.
Compliance Steps means any steps taken for the purposes of compliance with law or regulation.
Confidential Information means this KRAYON Agreement and all information or data of whatever nature (which includes any information which relates to business, systems, assets, operations, plans and intentions, know-how, trade secrets, business affairs, business methods and business concepts, personnel, product information, design rights, marketing or sales opportunities, strategies, prices, plans, proposals, customers, trading practices or suppliers) relating to either party or any of their Affiliates obtained in connection with this KRAYON Agreement, whether in oral, tangible or in documented form.
Customer means the entity identified as the Customer in the Order Form.
Customer Device means the electronic device through which the Customer accesses the Services.
Data Protection Agreement means the separate data protection agreement entered into between KRAYON and the Customer.
Data Protection Laws means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (as it forms part of domestic law in the UK by virtue of Clause 3 of the European Union (Withdrawal) Act 2018) (UK GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as may be amended, superseded or replaced from time to time, and in each case as may be amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019.
Digital Currency means digital currencies, including, inter alia, Bitcoin and Ethereum. For the avoidance of doubt, this definition of Digital Currency shall also include Non-Fungible Tokens for the purposes of this KRAYON Agreement.
Fees means the fees set out in the relevant Order Form in relation to the use of the Services by the Customer, which shall include, without limitation, the Additional Service Provider Fees (where applicable).
Force Majeure Event means an event beyond the Affected Party's reasonable control including any act or omission of any strike, lock-out, labour dispute, illness, act of God, war, riot, civil commotion, malicious damage, pandemic or epidemic being declared by the World Health Organisation (or any successor body), government action, compliance with Applicable Law or governmental order, rule, regulation or direction, accident, breakdown or other failure of equipment, software or communications network, fire, flood or other circumstances affecting the supply of goods or services.
Guidance Documentation means all customer guides, manuals, technical specifications or similar documents made available by KRAYON or any of its Affiliates to the Customer from time to time.
Insolvency Event means, in relation to a party, that party suffering or being subject to any of the following events:
Intellectual Property Rights means patents, trade marks, rights in designs, get-up, trade, business or domain names, copyrights including rights in computer software and databases (including database rights) and topography rights (in each case whether registered or not and, where these rights can be registered, any applications to register or rights to apply for registration of any of them), and where applicable any goodwill therein; and rights in inventions, know-how, trade secrets and other confidential information; and any other intellectual property rights which may exist at any time in any part of the world.
KRAYON means Krayon Digital PTE Ltd, a limited liability company, located at 160 Robinson Rd, #14-04 SBF Center, Singapore 068914.
KRAYON Agreement means the Order Form and these KRAYON Customer Terms together with their schedules.
KRAYON Customer Terms means these KRAYON Customer Terms.
KRAYON Intellectual Property Rights means all Intellectual Property Rights in materials supplied by or for KRAYON in connection with the provision of the Services.
KRAYON Site means KRAYON’s web application through which the Customer can access the Services.
KRAYON WaaS means KRAYON’s Wallet as a Service.
Order Form means the order form completed by the Customer and accepted by KRAYON for use of the Services.
Permitted Users means individuals who the Customer authorises to have access to the Account in order to manage and administer the Customer’s use of the Services and access the information made available in the Account.
Quarter means each consecutive three (3) month period beginning on the Start Date.
Related Party means employees, directors, officers, professional advisers, consultants, suppliers, subcontractors, agents or Additional Service Providers engaged by a relevant party or any Affiliate of such party.
Services means the services provided by KRAYON to its customers, including without limitation, KRAYON WaaS, the API, the Support Services and any Additional Services, as further set out in the Schedules.
Start Date means the date the Customer submits the Order Form to KRAYON.
Support Services means any support and maintenance services provided by KRAYON in respect of the Services, as updated from time to time.
28.1 Unless expressly provided otherwise, in this KRAYON Agreement:
28.1.1 references to Schedules, Clauses and sub-Clauses are to (respectively) schedules to, and clauses and sub-clauses of, this KRAYON Agreement (unless otherwise specified);
28.1.2 references to a person include an individual, a body corporate, partnership, state and an unincorporated association of persons;
28.1.3 references to a party to this KRAYON Agreement include references to the successors, assigns or transferees (immediate or otherwise) of that party;
28.1.4 use of the words: (a) “other”, (b) except in relation to the computation of periods of time, “includes” or “including”, or (c) similar words or phrases, do not connote limitation in any way;
28.1.5 each reference to a document is a reference to that document as amended from time to time; and
28.1.6 a reference to “writing” or “written” shall include email.
28.2 If there is any conflict or inconsistency between any of the provisions in the documents comprising this KRAYON Agreement, it shall be resolved by applying the provisions in the following order of precedence: (i) these KRAYON Customer Terms; (ii) the Order Form; and (iii) the Schedules, unless the relevant provision is expressly stated to take precedence over the other parts of this KRAYON Agreement.
ACCOUNT SCHEDULE
Notwithstanding the KRAYON Customer Terms, the following terms shall apply where the Customer creates an account through which the Customer can access the Services. Any undefined terms used herein shall carry the same meaning given to them in Clause 28 (Glossary) of the KRAYON Customer Terms.
1 Registration for an Account
1.1 To use the Services, the Customer will need to register for an Account on the KRAYON Site accessed via the Customer Device, by providing the Customer’s details and accepting the terms of this KRAYON Agreement.
1.2 By using an Account, the Customer agrees and represents that they will use the Services only for themselves, and not on behalf of any third party, unless the Customer has obtained prior approval from KRAYON. The Customer may register only one (1) Account. The Customer shall be fully responsible for all activity that occurs under the Customer’s Account. KRAYON may, in their sole discretion, refuse to open an Account for the Customer or suspend or terminate any Accounts (including but not limited to duplicate accounts).
2 Use of the Account
2.1 When using the Account, the Customer shall:
2.1.1 notify KRAYON of any Permitted Users;
2.1.2 keep the Account Security Information secure and confidential and ensure they are not shared with anyone else;
2.1.3 notify KRAYON immediately if it suspects or becomes aware that the Account Security Information has been compromised. In such circumstances, KRAYON may need to disable the Permitted User access to the Account and issue replacement Account Security Information;
2.1.4 comply with any further limits or restrictions, as communicated to the Customer by KRAYON from time to time;
2.1.5 ensure that the Customer Device and methods used to access the Account are secure.
3 Security
3.1 The Customer is responsible for keeping the Customer Device through which the Customer accesses the KRAYON Site and the Services safe and maintaining adequate security and control of any and all security details that the Customer uses to access the Services. This includes taking all reasonable steps to avoid the loss, theft or misuse of such Customer Device and ensuring that such Customer Device is both encrypted and password protected.
3.2 Any loss or compromise of the Customer Device or the Customer’s security details may result in unauthorised access to the Account by third-parties and the loss or theft of Digital Currencies. The Customer must keep its security details safe at all times. For example, the Customer should not write them down or otherwise make them visible to others.
3.3 The Customer should never allow remote access or share its Customer Device with someone else when the Customer is logged on to the Account. The Customer should not provide its details to any third party for the purposes of remotely accessing the Account unless specifically authorised to do so.
3.4 KRAYON assumes no responsibility for any loss that the Customer may sustain due to compromise of account login credentials due to no fault of KRAYON and/or failure to follow the requirements set out in this Schedule, or follow or act on any notices or alerts that KRAYON may send to the Customer.
4 Identity Verification
4.1 The Customer agrees to provide KRAYON with the information KRAYON requests (which KRAYON may request at any time deemed necessary) for the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crime and permit KRAYON to keep a record of such information. The Customer will need to complete certain verification procedures before they are permitted to start using the Services and to access specific Services and the limits that apply to the Customer’s use of the Services may be altered as a result of information collected on an ongoing basis.
4.2 The information KRAYON requests may include (but is not limited to) personal information such as name, residential address, telephone number, email address, date of birth, taxpayer identification number, government identification number, information regarding the Customer’s bank account (such as the name of the bank, the account type, routing number, and account number) network status, customer type, customer role, billing type and mobile device identifiers, and any such information that KRAYON is required to collect from time to time under applicable law.
4.3 In providing KRAYON with this or any other information that may be required, the Customer confirms that the information is true, accurate and complete, and the Customer has not withheld any information that may influence KRAYON’s evaluation of the Customer for the purposes of the Customer’s registration for an Account or the provision of Services to the Customer. The Customer undertakes to promptly notify in writing and provide KRAYON with information regarding any changes in circumstances that may cause any such information provided to become false, inaccurate or incomplete and also undertake to provide any other additional documents, records and information as may be required by KRAYON and/or applicable law. The Customer permits KRAYON to keep records of such information. KRAYON will treat this information in accordance with the terms of the KRAYON Agreement.
4.4 The Customer authorises KRAYON to make enquiries, whether directly or through third parties, that KRAYON consider necessary to verify the Customer’s identity or protect the Customer and/or KRAYON against fraud or other financial crime, and to take action KRAYON reasonably deems necessary based on the results of such enquiries. When KRAYON carries out these enquiries, the Customer acknowledges and agrees that the Customer’s personal information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to KRAYON’s enquiries in full.
API SCHEDULE
Notwithstanding the KRAYON Customer Terms, the following terms shall apply where the Customer writes to the API (as defined below). Any undefined terms used herein shall carry the same meaning given to them in Clause 28 (Glossary) of the KRAYON Customer Terms.
1 Definitions
1.1 For the purposes of this Schedule, the following defined terms shall apply:
1.1.1 API Data means any data made available through the API (including any metadata).
1.1.2 API Content means any data, materials and content made available by KRAYON through the API.
1.1.3 API Credentials means the API Credentials provided by KRAYON to the Customer to enable it to access the API to use the Services.
1.1.4 API Documentation means any additional documentation provide by KRAYON to the Customer, as updated from time to time.
2 License
2.1 As between KRAYON and the Customer, all title, ownership rights, and intellectual property rights in and to the Services, the API, and any API Content, and any copies or portions in respect of the same, shall remain with KRAYON and its licensors.
2.2 Subject to the terms of this Schedule, the KRAYON Agreement and the API Docuementation, KRAYON grants to the Customer a limited, revocable, non-sublicensable, non-transferable, royalty-free, non-exclusive license to use the API only during the term of the KRAYON Agreement and solely for the purpose of accessing the API Content as is necessary to enable the Customer to use the Services. Except as expressly permitted by the KRAYON Agreement,the KRAYON Agreement does not include any right for the Customer to use any trademark, service mark, trade name or other designation of KRAYON.
2.3 The Customer understands that KRAYON may modify or discontinue offering the API and/or any API Content at any time.
3 Restrictions
3.1 The Customer’s use of the API and the API Content is subject to the Customer’s compliance with any additional terms and conditions that may be set forth by KRAYON in connection with the Customer’s use of the Services.
3.2 When using the API, the Customer shall:
3.2.1 be responsible for integrating its systems with the API in accordance with the standards set out in the Guidance Documentation;
3.2.2 only access the API using the API Credentials;
3.2.3 keep the API Credentials secure and not disclose it to any other person;
3.2.4 comply with any limits KRAYON puts on the number and frequency of API requests from time to time;
3.2.5 put in place and regularly review and test measures in relation to the Customer's systems which:
(i) secure the API, the API Data, and the API Credential from infringement, misappropriation, theft, misuse or unauthorised access;
(ii) prevent the upload of viruses into KRAYON's systems;
3.2.6 not interfere with or degrade the Services in any way (including uploading any material which contains a virus or other malicious code); and
3.2.7 not distribute, licence, sell, rent, lease or otherwise deal in or encumber the API.
3.3 The Customer will not (and will not authorise, enable or permit any third party to):
3.3.1 access the API in any manner that:
(i) compromises, breaks or circumvents any of KRAYON’s technical processes or security measures associated with the Services;
(ii) poses a security vulnerability to KRAYON, it customers, or its Services; or
(iii) tests the vulnerability of KRAYON’s systems or networks;
3.3.2 access the API and API Content in order to replicate or compete with KRAYON or its Services, or for any other benchmarking or competitive purposes;
3.3.3 use the Services:
(i) for any unlawful purpose or criminal activity whatsoever, including fraud, or to promote any unlawful act;
(ii) in any way which may infringe the Intellectual Property Rights of KRAYON or any other party;
(iii) for any purpose other than those specifically permitted by KRAYON in this KRAYON Agreement;
3.3.4 attempt to reverse engineer disassemble, decompile, or otherwise derive source code, trade secrets, or know-how of the API, API Content, or the Services;
3.3.5 attempt to use the API in a manner that exceeds rate limits, or constitutes excessive or abusive usage;
3.3.6 modify, make derivative works of, or copy or use the API or the API Content, except as expressly specified in this Agreement;
3.3.7 provide, lend, sublicense, rent, loan, lease, sell, resell, transfer, assign, disclose, or otherwise distribute (except as expressly permitted in the KRAYON Agreement) the API or API Content;
3.3.8 access or use the API or any API Content in violation of any applicable law or regulations (including but not limited to export law); and
3.3.9 use or access the API for the purposes of monitoring the availability, performance or functionality of any of KRAYON 's products or services.
3.4 To the extent the API consists of software, the Customer shall use such software in object code form only.
4 API Rules
4.1 The Customer shall comply with the following limitations and rules with respect to the Customer’s use of the API and API Content:
4.1.1 There may be limits on access, calls, and use, as may be provided to the Customer by KRAYON. KRAYON may, at its sole discretion, increase these limitations on a case-by-case basis. If KRAYON believes that the Customer has attempted to exceed or circumvent these limitations, the Customer’s ability to use the API and/or API Content may be temporarily or permanently blocked.
4.1.2 The Customer may not modify, edit or revise any API Content delivered through the API, except as necessary due to technical limitations or to comply with the requirements of any networks, devices, services, or media, and The Customer must otherwise maintain the integrity of the API Content.
4.1.3 If the Customer’s application, website or service displays third party content commingled with API Content, the Customer must ensure that KRAYON is identified as the source on all API Content.
4.1.4 The Customer may not remove, obscure, or alter any copyright, trademark or other proprietary notice from the API or any API Content, or any portion thereof.
4.1.5 The Customer may not use any API Content in any manner for advertising or promotional purposes.
4.2 The Customer agrees that KRAYON may monitor The Customer use of the KRAYON API to improve the Platform and to ensure The Customer compliance with this Agreement.
5 Modifications
5.1 The Customer acknowledges and agrees that KRAYON may modify the API and the API Content from time to time. If KRAYON makes a material change to the terms of this Schedule, KRAYON will provide the Customer with reasonable notice prior to the change taking effect. If the Customer accesses the API after the effective date of any such change, that access will constitute the Customer’s acceptance thereof.
5.2 The Customer acknowledges that modifications may affect use of the API and display or transmission of API Content. KRAYON shall have no liability of any kind to the Customer or any user of the API or the API Content with respect to such modifications or any adverse effects resulting from such modifications. The Customer’s continued access to or use of the API shall constitute acceptance of any such modifications.
6 Support
6.1 The Customer is not entitled to any support, upgrades, patches, enhancements, or fixes for the API. KRAYON may, at its sole discretion, provide Support Services, and any such services shall become part of the API and subject to the terms of the KRAYON Agreement. The Customer agrees to report to KRAYON any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties, including without limitation, those related to interoperability.
7 Indemnity
7.1 The Customer agrees that KRAYON shall have no liability whatsoever for any use the Customer or any third party makes of the API or any API Content. The Customer shall indemnify and hold harmless KRAYON from any and all damages, losses, liability, costs, and expenses (including reasonable legal fees) arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of the KRAYON Agreement and this Schedule by the Customer.
8 Warranty Disclaimer
8.1 KRAYON provides all aspects of the API and API content (including all server and network components as applicable) on an "as is" and “as available” basis, without warranties of any kind to the fullest extent permissible by law, and KRAYON expressly disclaims all express or implied warranties, including without limitation warranties of merchantability, title, fitness for a particular purpose, performance, accuracy, reliability, and non-infringement. This disclaimer of warranty constitutes an essential part of the KRAYON Agreement. The Customer acknowledges that KRAYON does not warrant that the API will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or content (including the API Content) obtained by the Customer from KRAYON shall create any warranty not expressly stated in this Schedule and/or the KRAYON Agreement.
