2.1. Opening Account.
2.1.1. In order to use the Kinesis Mint, you must create and maintain an Account on Kinesis Mint.
2.1.2. Kinesis agrees to create and maintain an Account in your name on Kinesis Mint upon the following:
220.127.116.11. completion and submission of a Service Registration Form by You;
18.104.22.168. approval by Kinesis, in its sole discretion, to accept your Service Registration Form and complete relevant account opening KYC and AML processes.
2.2. KINESIS ADDRESS
2.2.1. Within the Service Registration Form or as subsequently provided, you must specify a Kinesis Address that you control that will receive Kinesis Currency obtained on Kinesis Mint.
2.3.1. Kinesis may provide statements for your Account representing the Cash Balance as of statement issue date and purchase and/or minting record relating to each respective type of Kinesis Currency in addition to an account activity statement detailing all orders, deposits and withdrawals executed as of the statement issue period.
2.3.2. Kinesis will provide you with a Kinesis Currency Trade Confirmation at the time of trade execution by way of email facilitated through Kinesis Mint.
2.3.3. Kinesis may provide you with a movement summary of any cash deposit to and/or withdrawal from your Account within thirty (30) days of any such transaction.
2.4. ERRORS AND OMISSIONS
2.4.1. If any material error or omission is discovered on any statement, you agree to notify Kinesis within two (2) Business Days of receiving the statement so that Kinesis may investigate the alleged error or omission. With respect to the foregoing, where such notification is not made by you to Kinesis within two (2) Business Days of the discovery of such a material error or omission, Kinesis may at its sole discretion, refuse to make such an investigation and shall be excused, relieved and discharged from any liability resulting from loss or damage sustained by you.
2.4.2. Notwithstanding the aforementioned Clause 2.4.1, Kinesis herein reserves the right to reverse or amend any erroneous entries in your account and to take any other associated action that would be required to place the Parties in the position that they would have been if such erroneous entry had not been made.
22.214.171.124. You shall be permitted to buy Kinesis Currency on Kinesis Mint during its Market Open Trading Window.
126.96.36.199. Notwithstanding Clause 188.8.131.52, Kinesis shall endeavour to provide you with access to Kinesis Mint throughout the Market Open Trading Window, unless Kinesis Mint is undergoing maintenance or there exists a technical fault.
2.5.2. Obligations for User ID, Email, Kinesis Address and Passwords.
184.108.40.206. You shall be responsible for all activity resulting from the use of your User ID, Kinesis Password, Kinesis Address and any activity or correspondence received by Kinesis from the associated email address and shall take such steps as are necessary to prohibit any person from using or accessing same.
220.127.116.11. No person to whom a User ID has been issued may disclose or knowingly permit the use of the User ID or Kinesis Password by another person.
18.104.22.168. You shall notify Kinesis immediately upon becoming aware of:
22.214.171.124.1. any unauthorised disclosure or use of any User ID or Kinesis Password;
126.96.36.199.2. any unauthorised access to Kinesis Mint;
188.8.131.52.3. any unauthorised access to the email address associated with the User ID;
184.108.40.206.4. any unauthorised access or compromise of your Kinesis Address;
220.127.116.11. the need to deactivate any User ID or Kinesis Password; or
18.104.22.168. the need to change the associated email address or Kinesis Address.
22.214.171.124. Kinesis may monitor access to and utilisation of Kinesis Mint by any person. This will be done solely for Kinesis’s own purposes and such monitoring and collection of information shall not, as a matter of practice, be disclosed to other persons, including you.
126.96.36.199.1. The account is subject to a governmental proceeding, criminal investigation or other pending litigation;
188.8.131.52.2. We detect unusual activity in the account;
184.108.40.206.3. We detect unauthorized access to the account;
220.127.116.11.4. We are required to do so by a court order or command by a regulatory/government authority.
18.104.22.168. In case of any of the following events, Kinesis shall have the right to directly terminate this agreement by cancelling your Account, and shall have the right to permanently freeze (cancel) the authorizations of your account on Kinesis and withdraw the corresponding Kinesis Account thereof:
22.214.171.124.1. after Kinesis terminates services to you;
126.96.36.199.2. you allegedly register or register in any other person’s name as Kinesis user again, directly or indirectly;
188.8.131.52.4. you request that the Services be terminated; and
strong>184.108.40.206.5. any other circumstances where Kinesis deems it should terminate the services.
220.127.116.11. Should your Account be terminated, the Account and transactional information required for meeting data retention standards will be securely stored for a reasonable time. In addition, if a transaction is unfinished during the Account termination process, Kinesis shall have the right to notify your counterparty of the situation at that time. You acknowledge that a user-initiated account exit (right to erasure under GDPR or other equivalent regulations) will also be subjected to the termination protocol stated above.
18.104.22.168. If Kinesis receives notice that any funds held in your Account are alleged to have been stolen or otherwise are not lawfully possessed by you, Kinesis may, but has no obligation to, place an administrative hold on the affected funds and your Account. If Kinesis does place an administrative hold on some or all of your funds or Account, Kinesis may continue such hold until such time as the dispute has been resolved and evidence of the resolution acceptable to Kinesis has been provided to Kinesis in a form acceptable to Kinesis. Kinesis will not involve itself in any such dispute or the resolution of the dispute. You agree that Kinesis will have no liability or responsibility for any such hold, or for your inability to withdraw funds or execute trades during the period of any such hold.
2.5.4. Balances Post Suspension or Termination.
22.214.171.124. Except as set forth in Clause 2.4.5, once the Account is closed/withdrawn, all remaining balance (which includes charges and liabilities owed to Kinesis) on the account will be payable immediately to Kinesis. Upon payment of all outstanding charges to Kinesis (if any), You will have 5 Business Days to withdraw all funds from the Account.
2.5.5. Balances After Account Termination Due To Fraud, Violation Of Law, Or Violation Of These Terms.
2.6. FUNDS MANAGEMENT
2.6.1. Depositing Funds
126.96.36.199. You shall be required to transfer funds by way of a credit deposit to the Trust Account.
188.8.131.52. Pursuant to Clause, sufficient funds must be received and subsequently cleared in the Kinesis Trust Account prior to Kinesis crediting your Cash Balance.
2.6.2. Withdrawing Funds
184.108.40.206. Kinesis shall only remit cleared funds held in the Trust Account where you submit a withdrawal request.
220.127.116.11. Any request for a withdrawal of funds from the Trust Account shall be effected by way of request through Kinesis Exchange or another recognised form of instruction. Where Kinesis has received such a request, Kinesis shall take reasonable steps to facilitate such a withdrawal as soon as is reasonably practicable.
2.6.3. Depositing Digital Assets.
18.104.22.168. You shall be required to transfer funds by way of a credit deposit to your Account’s unique digital asset public address.
22.214.171.124. Pursuant to Clause, sufficient credits must be received and subsequently cleared in your Account’s unique digital asset public address prior to Kinesis crediting your Digital Asset Balance.
2.6.4. Withdrawing Digital Assets.
126.96.36.199. Kinesis shall programmatically remit cleared credits held in your Digital Asset Balance where you submit a withdrawal request.
188.8.131.52. Any request for a withdrawal of funds from the Trust Account shall be effected by the Kinesis Exchange.
184.108.40.206. You acknowledge and agree that under no circumstances whatsoever will you use the Kinesis Exchange to withdraw or transfer digital assets to another person or entity. For the avoidance of doubt, you warrant that you shall only withdraw your digital assets to a public address owned and controlled by you.
2.6.5. Trust Account Funds and Digital Asset Balance.
220.127.116.11. Kinesis shall not use your Cash Balance or Digital Asset Balance for the purpose of meeting financial obligations incurred by Kinesis, nor shall Kinesis permit your Cash Balance or Digital Asset Balance to be used to meet the trading obligations of any other person. Notwithstanding the above, this Clause shall be read subject to any security provision provided elsewhere in this Agreement.
18.104.22.168. Kinesis will not pay interest on any Cash Balance to you. You acknowledge and accept that any interest on the Trust Account will accrue to Kinesis.
22.214.171.124. You shall be responsible for any transaction, conversion or other cost charged by your respective authorised deposit-taking institution when making any deposit or withdrawal to or from the Trust Account or Digital Asset Balance. Notwithstanding this Clause 126.96.36.199, you herein undertake to reimburse Kinesis for any dishonour or reversal charges that are levied from Kinesis’s account resultant of a transaction effected by, or at the direction of you.
2.7. TRADE EXECUTION
2.7.1. You herein acknowledge and accepts that for each trade executed in accordance with your order(s) through Kinesis Mint, Kinesis shall be the immediate counterparty but upon confirmation of the trade, the appropriate Kinesis Currency will be instantaneously emitted to your nominated Kinesis Address.
2.7.2. You shall place an order for Kinesis Mint Currency through the Kinesis Mint.
2.7.3. Where you place an order through Kinesis Mint and your order is subsequently executed, in whole or in part, you may be charged an Execution Fee in accordance with the Fee Schedule.
2.8. FUND PRIORITY AND MANAGEMENT
2.8.1. You herein acknowledge and accept that where you successfully execute a purchase through Kinesis Mint in accordance with an order placed by you in accordance with Clause 2, you hereby request Kinesis to debit, at time of trade, the corresponding Trade Value and Execution Fee from its Cash Balance.
2.8.2. You herein acknowledge and agree that there exists no cooling-off or set off functionality within Kinesis Mint and that all executed transactions and resulting contractual obligations are final. Any unexecuted order, or part thereof, may be withdrawn at any time prior to execution.
2.8.3. You herein acknowledge and accept that where you request a withdrawal of deposited funds from your Cash Balance, Kinesis shall only remit said funds in the name and to the account of the organisation that made the original deposit, and provided that you have no orders open in Kinesis Mint at the time of the withdrawal request.
2.8.4. You acknowledge and agree that when placing an order, it may be executed in part. If part of an order is not executed, it will remain open until such time as it is executed or you cancel it in Kinesis Mint.
2.8.5. You acknowledge that normal pricing relationships may not exist in periods such as that of high volatility or low liquidity.
2.9. ORDER PRIORITY
2.9.1. Kinesis warrants that all orders as entered into Kinesis Mint shall be executed in strict price/time priority.
2.10. SUSPENSION OF TRADE FOR FAILURE TO COMPLY
2.10.1. You shall not place an order for the purchase of Kinesis Currency in Kinesis Mint unless the Cash Balance in the Account is sufficient to cover the relevant order.
2.10.2. In the event that you repeatedly attempt to place an Order for the purchase of Kinesis Currency in Kinesis Mint without the Cash Balance in the Account being sufficient to cover the relevant order, Kinesis may, at its ultimate discretion, cancel your ability to trade upon your Account. Where Kinesis exercises its discretion pursuant to this Clause, Kinesis warrants that it shall release your Cash Balance within a reasonable time provided there does not exist any outstanding fees and charges owing to Kinesis or any other person pursuant to this Schedule. For the avoidance of doubt, nothing within this Clause may be construed as releasing you from any outstanding obligations under this Schedule.
2.10.3. You herein acknowledge and agree that where Kinesis suspends or cancels your ability to trade upon your Account, to the maximum extent permitted by law, Kinesis shall not be liable under any circumstance whatsoever under any legal theory whatsoever, for loss or damage to your or any other persons related or engaged with you resultant of said suspension or cancellation, including but not limited to loss of profits or other proprietary trading losses in the event that Kinesis removes an order from Kinesis Mint or does any other analogous actions upon Kinesis Mint.
2.11. PROPRIETARY TRADE DISCLOSURE
2.11.1. You acknowledge and subsequently agree that Kinesis may engage in proprietary trading activities from time to time.
2.11.2. Notwithstanding Clause 2.11.1, Kinesis warrants that it shall take all reasonable steps to ensure that any proprietary trading activity will not be based on any non-public price-sensitive information and/or will not adversely affect your interests.
3. EMISSION OF KINESIS CURRENCY
3.1. Emission of Kinesis Currency
3.1.1. Upon Trade Confirmation, Kinesis will immediately emit the appropriate Kinesis Currency to your nominated Kinesis Address.
3.1.2. You acknowledge and agree that Kinesis is not able to reverse any emission of Kinesis Currency to a Kinesis Address and will not have any responsibility or liability for Kinesis Currency sent to an address that is incorrect, improperly formatted, erroneous, intended for a different type of Token or where it has been compromised by a party other than you.
4. BACKING OF KINESIS CURRENCY
4.1. Backing of Kinesis Currency
4.1.1. Contemporaneously on Trade Confirmation, Kinesis will cause an equivalent amount of Bullion to be purchased on your behalf in weight equal to the number of Kinesis Currency purchased. For the avoidance of doubt, Kinesis may source Bullion from any exchange, platform, dealer, mint or otherwise for the purpose of satisfying its undertaking and representation to back each Kinesis Currency.
4.1.2. Kinesis will store that Bullion as bailee on behalf of all holders of that particular Kinesis Currency, whereby each holder of that Kinesis Currency has an undivided interest in the total pool of Bullion in proportion to the amount of Kinesis Currency held in a Kinesis Address and the total amount of that particular Kinesis Currency issued.
4.1.3. For the avoidance of doubt, Kinesis may utilise sub-bailees at its discretion for the satisfaction of the representations and undertakings contained herein.
5. OWNERSHIP OF BULLION
5.1. Property Ownership
5.1.1. In accordance with Clause 5.1, legal and beneficial title in the Allocated Bullion backing the Kinesis Currency will remain with the Kinesis Currency holder until such time as all or part of the corresponding Kinesis Currency is transferred to another Kinesis Address.
5.1.2. For the avoidance of doubt, Kinesis shall identify in Kinesis’s financial documentation that all Bullion held by Kinesis subject to clause 5.1 is the legal property of all holders of that particular Kinesis Currency in proportion to the amount of Kinesis Currency held in a Kinesis Address and the total amount of that particular Kinesis Currency issued.
6. EXCHANGE OF PHYSICAL FOR DIGITAL (“EPD”)
6.1. You may arrange for Bullion to be minted into Kinesis Currency through the Exchange of Physical for Digital or “EPD” process.
6.2. Following completion and submission of the Kinesis Mint EPD Form, Kinesis may permit you to deposit an agreed amount of Bullion to be held by Kinesis as bailee on an Allocated basis.
6.3. Each Kinesis Mint EPD Form shall be considered on a case by case basis. Kinesis may at its ultimate discretion, prescribe reasonable minimum deposit quantities or volumes, measured in the aggregate, in respect of deposits generally of a particular requested deposit.
6.4. If Kinesis agrees to accept a requested deposit of Bullion it shall be on the basis that you will be required to comply with the terms and undertakings of this Clause 6. You herein acknowledge and agree that Kinesis may temporarily or permanently disallow deposits for any reason or no reason.
6.5. You will only deposit Bullion of a Prescribed Form which satisfies relevant QAF requirements.
188.8.131.52. In the event that you complete a Kinesis EPD Form, Kinesis will respond by confirming whether it is willing to accept the requested deposit of Bullion. If Kinesis confirms that the requested deposit of Bullion may be made it will work with you to:
184.108.40.206.1. Agree on a date for the requested deposit of Bullion within the time frame prescribed in the QAF. Where said notice does not provide the requisite amount of time, the delivery shall be processed on the following Delivery Date where possible, unless otherwise agreed by the Parties;
220.127.116.11.2. verify that the Bullion to be deposited with Kinesis is in a Prescribed Form and will be deposited to Kinesis’s Vaulting Account at your expense and risk; and
18.104.22.168.3. establish, to the best of its reasonable knowledge, that the facilitation of storage of Bullion for you is legal insofar as the movement of the Bullion would not breach any applicable law, regulation, court order or otherwise.
22.214.171.124. Where a deposit is made pursuant to the Clause 6, said deposit may take up to forty-eight (48) hours to be credited to you. Until such time as the Bullion is credited to the Kinesis Vaulting Account, you shall not be permitted to mint the deposited Bullion into Kinesis Currency.
6.6.1. ABX may charge a Deposit Fee for any Bullion deposited to each ABX Vault.
6.7.1. Once the deposited Bullion has been credited to the Kinesis Vaulting Account Kinesis will cause an equivalent amount of Kinesis Currency to be emitted on behalf of the KCX Member in number equal to the weight of Bullion deposited (e.g. 1kg of Gold Bullion for each 1000 KAUs purchased) and will immediately emit the equivalent Kinesis Currency to your nominated Kinesis Address.
6.7.2. From time to time Kinesis may accept Bullion of non-standard fineness prescribed in the Kinesis product specification criteria. However, the equivalent Kinesis Currency emitted will be in proportion to its fineness compared against the standard fineness specified in the Kinesis product specification (eg. a 1g Gold Coin of fineness 995.0 will be subject to an emission of KAU no greater than 0.995 KAU).
6.7.3. Where Kinesis Currencies are emitted in accordance with Clause 6.7.2, the following additional terms apply:
126.96.36.199. Bullion subject to clause 6.7.2 may be recorded into a deposit manifest, inserted into numbered tubes, and stored in number boxes within the ABX cage at the participating vaulting location with identifying information of the entity that completed the EPD, for the benefit of Kinesis.
188.8.131.52. A deposit fee of 1% of the amount emitted is charged by Kinesis at the time of emission.
184.108.40.206. A segregation maintenance fee of 2.5% per annum, charged monthly in arrears (0.208% per month) of the amount emitted is payable by you each month and you authorise the fee to be deducted from your KMS account by Kinesis.
220.127.116.11. Unless you are in Default, Kinesis will not deal with the Bullion subject to the above clause, without your prior written consent.
18.104.22.168.1. Default means at any time after the Kinesis Currency has been emitted to you, on the 1st day of any following month, you fail to maintain a balance of Kinesis Currencies within your KMS Account of at least 2/3rds of the Kinesis Currencies emitted to you or fail to hold sufficient balance to pay the segregation maintenance fee.
22.214.171.124.2. If you are in Default because of failure to maintain 2/3rds balance of the Kinesis Currencies emitted to you, you must within 30 days increase your KMS Account balance with sufficient Kinesis Currencies to maintain the 2/3rds balance of the Kinesis Currencies emitted to you.
126.96.36.199.3. If you are in Default because of failure to pay the segregation maintenance fee, you must within 7 days increase your KMS balance to allow an amount equal to the monthly segregation fee to be deducted by Kinesis. If within 7 days you do not increase your KMS balance sufficiently to allow payment of the monthly segregation fee, Kinesis may at its sole discretion waive your rights under clause 188.8.131.52 and any remaining balance subject to the initial emission under clause 6.7.2 treated as a standard emission under clause 6.7.1.
184.108.40.206. If you are unable to satisfy clause 220.127.116.11.1., you acknowledge and agree that Kinesis has the right to deal with the subject Bullion such that any remaining Bullion or substituted Bullion shall represent at most 2/3rds of the initial Kinesis Currencies emitted to you by way of EPD. For the avoidance of doubt, the remaining Bullion or substituted Bullion will represent the Kinesis Currencies subject to clause 6.7.2 for any following months.
18.104.22.168. If you fail to hold the sufficient Kinesis Currencies to maintain 2/3rds balance of the Kinesis Currencies emitted to you under clause 6.7.2 at least four (4) times in any six (6) month rolling period, you forfeit any rights to the Bullion subject to clause 6.7.2 and at which time the Bullion becomes the legal property of Kinesis.
22.214.171.124 At any time after emission of Kinesis Currencies subject to clause 6.7.2, you may complete the KCX Redemption Form to redeem the specific Bullion that was subject to EPD at the time. Conditional upon the receipt by Kinesis of sufficient Kinesis Currencies and any fees associated with the redemption, Kinesis shall deliver to you the subject Bullion.
6.7.4. You acknowledge and agrees that Kinesis is not able to reverse any emission of Kinesis Currency to a Kinesis Address and will not have any responsibility or liability for Kinesis Currency sent to an address that is incorrect, improperly formatted, erroneous, intended for a different type of digital token or where it has been compromised by a party other than you.
6.8. Backing of Kinesis Currency.
6.8.1. Kinesis will store Bullion as bailee on behalf of all holders of that particular Kinesis Currency, whereby each holder of that Kinesis Currency has Allocated ownership of Bullion in proportion to the amount of Kinesis Currency held in a Kinesis Address.
6.8.2. For the avoidance of doubt, Kinesis may utilise sub-bailees at its discretion for the satisfaction of the representations and undertakings contained herein
7. OWNERSHIP OF BULLION
7.1. Property Ownership.
7.1.1. Legal and beneficial title in the Allocated Bullion backing the Kinesis Currency will remain with the Kinesis Currency holder until such time as all or part of the corresponding Kinesis Currency is transferred to another Kinesis Address.
7.1.2. For the avoidance of doubt, Kinesis shall identify in Kinesis’s financial documentation that all Bullion held by Kinesis subject to clause 6.1 is the legal property of all holders that particular Kinesis Currency in proportion to the amount of Kinesis Currency held in a Kinesis Address and the total amount of that particular Kinesis Currency issued.
8.1. Redemption of Kinesis Currency for Allocated Bullion
8.1.1. At any point in time, you may request for your Kinesis Currency to be redeemed into Allocated Bullion through the Redemption process.
8.1.2. Following completion and submission of the Kinesis Mint Redemption Form, Kinesis shall facilitate the withdrawal of an agreed amount of Allocated Bullion, upon the destruction of the corresponding amount of Kinesis Currency.
8.1.3. Each Kinesis Mint Redemption Form shall be managed on a case by case basis. Kinesis may at its ultimate discretion, prescribe reasonable minimum withdrawal quantities or volumes, measured in the aggregate, in respect of withdrawals generally of a particular requested withdrawal.
8.1.4. If Kinesis agrees to accept a requested Redemption of Kinesis Currency, it shall be on the basis that you will be required to comply with the terms and undertakings of this Clause 8.
8.1.5. Any Kinesis Mint Redemption shall be satisfied using Bullion of a Prescribed Form which satisfies relevant QAF requirements.
126.96.36.199. In the event that you complete a Kinesis Redemption Form, Kinesis will respond by confirming whether it is able to accept the requested Redemption of Kinesis Currency. Upon Kinesis confirmation, the requested withdrawal of Allocated Bullion, Kinesis will work with you to:
188.8.131.52.1. Agree a date for the requested redemption of Kinesis Currency within the time frame prescribed in the QAF. Where said notice does not provide the requisite amount of time, the withdrawal shall be processed on the following Delivery Date where possible, unless otherwise agreed by the Parties;
184.108.40.206.2. verify that the Allocated Bullion to be delivered to You is in a Prescribed Form and will be withdrawn from Kinesis at your expense and risk; and
220.127.116.11.3. establish, to the best of its reasonable knowledge, that the facilitation of the withdrawal, delivery, and any ancillary services of Allocated Bullion for you is legal insofar as the movement of the Bullion would not breach any applicable law, regulation, court order or otherwise.
18.104.22.168. Until such time as the Kinesis Currency is redeemed by way of a transfer to the Kinesis root account, you shall not be permitted to redeem Kinesis Currency into Allocated Bullion.
22.214.171.124. Kinesis may charge a Redemption Fee for any Kinesis Currency redeemed into Allocated Bullion.
126.96.36.199 Once the Kinesis Currency has been transferred to the Kinesis root account, Kinesis will cause an equivalent amount of Allocated Bullion to be delivered to you in a weight equal to the number of Kinesis Currency redeemed (e.g. 1000 KAUs redeemed into 1kg of Gold Bullion).
8.1.9. You acknowledge and agrees that Kinesis is not able to reverse any redemption of Kinesis Currency to a Kinesis Address and will not have any responsibility or liability for Kinesis Currency sent to an address that is incorrect, improperly formatted, erroneous, intended for a different type of digital token or where it has been compromised by a party other than Kinesis.
8.1.10. For the avoidance of doubt, Kinesis may utilise sub-bailees at its discretion for the satisfaction of the representations and undertakings contained herein.
9.1. Authorised Instructions.
9.1.1. You hereby represent and warrant that where Kinesis is provided instructions by on your Account through the Kinesis Mint Platform, Kinesis may rely upon and action those instructions where you shall have no recourse against Kinesis.
9.1.2. Kinesis hereby represents and warrants that it shall only deal with your Account where Kinesis has, or appears to have received instructions from you via the Kinesis Mint.
9.1.3. Where authorised instructions have been received by Kinesis pursuant to Clause 8.1.2, said authorised instructions shall remain in force until such time as Kinesis is notified otherwise by the Kinesis Mint platform.
9.2. Unclear Instructions.
9.2.1. Where authorised instructions have been received by Kinesis pursuant to
Clause 8.1.2, Kinesis undertakes to take reasonable steps to obtain clarification around any instruction which is not sufficiently clear. Notwithstanding the aforementioned, Kinesis may at its discretion act upon any instruction which it believes is a reasonably clear direction from you or in the alternate, Kinesis may at its discretion refuse to act upon any authorised instruction which it believes to be unclear and/or ambiguous until such time as you clarified any uncertainty in said authorised instruction.
10. STORAGE OF BULLION
10.1.1. All Bullion backing the Kinesis Currencies shall be held within a given Kinesis Vault unless in transit to another Kinesis Vault, to you, or in transit to some other Approved Location as instructed by Kinesis.
10.1.2. Kinesis herein undertakes to take all necessary steps to ensure that all Kinesis Vaults and Vault Operators are reputable and provide you with all reasonable assurances as to its Bullion’s safekeeping.
10.2.1. Kinesis herein undertakes that, at all times, it shall maintain, or shall have its Vault Operators maintain comprehensive insurance policies to cover the value of Bullion from loss, theft or damage caused whilst Bullion has been bailed to Kinesis, its Vault Operators and/or its affiliates, agents and/or subcontractors.
10.2.2. For the avoidance of doubt, Kinesis, its Vault Operators and/or its affiliates, agents and/or subcontractors shall be deemed to have taken bailment of Bullion where said Bullion is physically within Kinesis’s, its Vault Operators’ and/or its affiliates’, agents’ and/or subcontractors’ possession, evidenced by a signed receipt of same. Kinesis, its Vault Operators and/or its affiliates, agents and/or subcontractors shall be deemed to no longer be acting as bailees where said Bullion is physically within your, your Authorised Trading Agents’ or some other duly authorised person’s possession, evidenced by a signed receipt of same.
10.2.3. In the event of loss, theft or damage to Holdings wherein the Bullion has been admitted to the Secure Storage Area of a Kinesis Vault, its Vault Operators and/or its affiliates, agents and/or subcontractors, the value of said lost, stolen or damaged Bullion shall be determined by:
10.2.3.1. reference to the Bullion purchased to back Kinesis Currencies; and
10.2.3.2. the price as specified as the first Business Day post meridiem (PM) fix following the day of any loss, theft or damage to the Bullion according to the London Bullion Market Association or the London Platinum and Palladium Market as appropriate, plus reasonable costs associated with the replacement of said lost, stolen or damaged Bullion including, but not limited to, a reasonable premium for such recast where appropriate.
10.2.4. You herein acknowledge and agree that Kinesis shall have no liability howsoever to you or any of your employees, affiliates, agents or subcontractors under or arising in respect of this Schedule for any indirect loss, incidental loss, consequential loss or otherwise including but not limited to loss of profits, revenue, business opportunity or reputation, whether or not Kinesis had knowledge that such loss or damage might be incurred, and whether or not such loss or damage was reasonably foreseeable.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability.
11.1.1. To the maximum extent permitted by law, Kinesis shall not be liable under any circumstance whatsoever under any legal theory whatsoever, for loss of or damage to your Account, regardless of whether such loss is direct, indirect, incidental, consequential or otherwise.
11.1.3. To the maximum extent permitted by law, Kinesis shall not be liable under any circumstance whatsoever, under any legal theory whatsoever for loss of or damage to your Account, resulting from confiscation, seizure, appropriation, expropriation, requisition for the title of use or willful destruction of the Bullion, or portion thereof, by/or under the order of any Government (whether civil, military or de facto) and/or public authority.
11.1.4. In all cases, Kinesis’s absolute liability shall not exceed a sum equal to a multiple of five (5) times the fees paid by you to Kinesis over the previous twelve (12) months per claim and shall in no event cumulatively exceed USD 10,000 per calendar year.
11.2. Force Majeure