Terms & Conditions
Terms & Conditions
1.1. The website (https://kinesis.money) (“Website”) together with the documents referred to on it is owned and operated by Kinesis Cayman (“we”, “us”, “our”, “Kinesis” or “Company”).
1.2. Kinesis Cayman is a company incorporated in the Cayman Islands, with registered office at C/O Stuarts Corporate Services, 36A Dr. Roy’s Drive, Grand Cayman, Cayman Islands, KY1-1104.
2. ACCEPTANCE OF TERMS
2.1.1. the Kinesis Cayman products and services, including:
22.214.171.124. participating in the sale by the Company of digital tokens subject to the Terms and Conditions of Token Sale and Use (the “Token Sale Agreement”) and Offering Memorandum through the KVT application form;
126.96.36.199. Brand Ambassador programmes;
188.8.131.52. information subscription services;
184.108.40.206. the Kinesis Currency Network;
220.127.116.11. the Kinesis Explorer;
18.104.22.168. the Kinesis Wallet; and
22.214.171.124. the Kinesis Currency Exchange;
collectively “the Services”.
3. LICENSE TO USE
3.2. You shall obtain at your own expense all licences, permits, and consents that may be necessary for the use of the Platform and/or the Services.
4. ACCESS TO THE PLATFORM AND SERVICES
4.1. You may not access or use our Platform and/or Services if you are located in, or a citizen or resident of any state, country, territory or other jurisdiction where:
4.1.1. uyour access or use of our Platform and/or Services would be contrary to applicable laws, rules or regulations of any governmental authority or regulatory organisation; or
4.1.2. we have determined, at our sole discretion, to prohibit access or use of the Platform and/or Services.
4.2. In accordance with clause 4.1, we may implement certain controls to restrict or deny access to our Platform and/or Services from any jurisdiction where access is prohibited.
4.3. You agree that you will comply with this clause, even if our methods to prevent access or use of our Platform and/or Services are not effective or able to be bypassed.
5. YOUR USE OF THE PLATFORM AND SERVICES
5.1. You must not use our Platform or Services:
5.1.1. in any way that breaches any law, rule, decision, judgment or regulation, or that has any unlawful or immoral purpose or effect;
5.1.2. to transmit, or procure the sending of any unsolicited or unauthorised advertising, promotional material or similar communications;
5.1.3. to send, knowingly receive, upload, download, publish, post, distribute, disseminate, transmit, use or re-use any material or information which is inaccurate, illegal, defamatory, libellous, obscene, offensive, abusive, hurtful, hateful, threatening, inflammatory, harmful, infringing, pornographic, discriminatory, indecent, unsolicited, unauthorised, unlawful, objectionable or which may expose you or us to legal action or reputational damage; or
5.1.4. to threaten, harass, stalk, abuse, disrupt others, or otherwise violate the rights of others.
5.2. You also agree not to:
5.2.1. advertise or sell any goods or services to other users of the Platform or the Services or to benefit commercially from its content; o
5.2.2. access without authority, interfere with, damage or disrupt, any part of our Platform; any equipment or network on which our Platform is stored; any software used in the provision of our Platform or Services; or any equipment, network or software owned or used by any third party.
5.3. When you are asked to provide information in connection with our Platform or Services, you agree to provide true, accurate, current and complete details. It may not be possible to provide you with the relevant access, Services or information you require if you do not provide the minimum mandatory information requested.
5.4. Except as expressly permitted in relation to a particular Service you shall not:
5.4.1. copy, modify, reverse engineer, reverse assemble or reverse compile or store the Platform or Services or any part thereof;
5.4.2. license, sublicense, transfer, sell, resell, publish, reproduce, and/or otherwise redistribute the Platform or the Services or any components thereof in any manner (including, but not limited to, via or as part of any internet site);
5.4.3. use the Platform or the Services as part of your intranet or other internal network; or
5.4.4. create archival or derivative works based on the Platform or the Services or any portion thereof. You shall take all precautions that are reasonably necessary to prevent any unauthorized distribution or redistribution of the Platform or the Services.
5.6. Your use of the Platform and/or Services is at your own risk.
5.7. You understand, acknowledge and accept that we make no warranty whatsoever, express or implied, to you as to the Platform and/or Services, and that the Platform and/or Services are provided to you “as is” and you use them at your sole risk.
5.8. We expressly disclaim any implied warranties or merchantability or fitness for a specific purpose in relation to the Platform and/or Services.
5.9. You acknowledge and agree that:
5.9.1. You are solely responsible for evaluating the accuracy, timeliness, and completeness of any and all information provided to you via the Platform and/or relevant Services;
5.9.3. Neither the Platform or Services or information provided to you through the Platform or Services are intended as investment, financial, tax, accounting or legal advice. A reference to a particular product on the Platform or in the Services is not a recommendation to buy, sell or hold such product or to make any other investment decision. We are not offering any advice in this regard and you agree that your use of the Platform and/or Services and any decisions that you make in reliance on information contained within the Platform and the Services are made at your own risk.
5.9.4. By accessing the Platform and utilising relevant Services in any way, you represent that you understand the inherent risks associated with cryptographic tokens, digital assets, digital ledger technology and blockchain-based software systems; and warrant that you have an understanding of the usage and intricacies of native cryptographic tokens and its underlying technology, such as the KVT/KAU/KAG and blockchain-based software systems.
5.9.5. The Platform and the Services may be impacted by one or more regulatory inquiries or regulatory action, which could impede or limit the ability of Kinesis to continue to develop, or which could impede or limit your ability to access or use the Platform and/or the Services.
5.9.6. Cryptography is a progressing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to cryptocurrencies and the Platform and the Services, which could result in the theft or loss of your cryptographic tokens or property. To the extent possible, Kinesis intends to update the protocol underlying the Platform and the Services to account for any advances in cryptography and to incorporate additional security measures, but does not guarantee or otherwise represent full security of the system. By using the Platform and the Services, you acknowledge these inherent risks.
5.9.7. You understand that KVT/KAU/KAG and other blockchain technologies and associated currencies or tokens are highly volatile due to many factors including but not limited to adoption, speculation, technology and security risks. You also acknowledge that the cost of transacting on such technologies is variable and may increase at any time causing impact to any activities taking place on the blockchain. You acknowledge these risks and represent that Kinesis cannot be held liable for such fluctuations or increased costs.
5.9.8. The Platform and/or the Service provide links to other internet or accessible sites, applications or resources. Because we have no control over such sites, applications and resources, you acknowledge and agree that Kinesis is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Kinesis shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
5.10. You represent and warrant that:
5.10.2. you are of the legal age of majority in your jurisdiction as is required to access the Platform and/or Services and enter into arrangements as provided by the Services. You further represent that you are otherwise legally permitted to use the Services in your jurisdiction including owning cryptographic tokens of value, and interacting with the Platform or Services in any way. You further represent you are responsible for ensuring compliance with the laws of your jurisdiction and acknowledge that we are not liable for your compliance with such laws.
6. LIMITATION OF LIABILITY & INDEMNITY
6.1. Except as otherwise required by applicable law, neither we, nor our affiliates, respective directors, officers, shareholders or employees, or agents accept any responsibility and shall not be liable for any and all losses or damages whatsoever, whether in contract, tort (including negligence), breach of statutory duty or otherwise, even if foreseeable, arising under or in connection with:
6.1.1. use of or reliance on any information, opinions, content and/or material held on this Platform or made available in connection with the Platform and/or the Services; or
6.1.2. interruption or delay in access, use of, or inability to use or access, line or system failure in connection with, or security threat relating to, the Platform and/or the Services,
including but not limited to: special, indirect, incidental, punitive or consequential damages, loss of profits, sales, business, or revenue; loss of data; business interruption; loss of anticipated savings; loss of business opportunity, goodwill or reputation; wasted management time; or any indirect or consequential loss or damage.
6.2. Except as otherwise required by applicable law, we will not be liable for any loss or damage caused to your information technology, devices, computer programmes, platform, data or other proprietary material arising in connection with your use of this Platform and/or the Services.
6.5. Neither we, nor our affiliates, third party providers or respective directors, managers, officers, shareholders, employees or agents make any warranty with respect to, and no such party shall have any liability to you for:
6.5.1. The accuracy, adequacy, timeliness, completeness, reliability, performance or continued availability of the Platform and/or Services; or,
6.5.2. Delays, omissions or interruptions to the Platform and/or Services;
6.6. We have not verified, monitored, reviewed or authenticated in whole or in part the information and materials which comprise the Platform and the Services which may include inaccuracies or typographical or other errors.
7. FORWARD LOOKING STATEMENTS
7.1. Certain statements on the Platform may constitute “forward-looking statements” within the meaning of the safe harbor provisions of the US Private Securities Litigation Reform Act or similar applicable regulation. In some cases, these statements are identifiable by use of forward-looking words such as “may,” “might,” “will,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential” or “continue,” and the negative of these terms and other comparable terminology. Such forward-looking statements which are subject to known and unknown risks, uncertainties and assumptions about Kinesis, may include, but are not limited to, projections of future financial performance of relevant products based on our relevant strategies and anticipated trends in our business and industry, statements concerning Kinesis’ plans, objectives, expectations and intentions and other statements that are not historical or current facts. Forward-looking statements are only predictions based on our current expectations about future events. They involve risks and uncertainties that could cause actual results, level of activity, or performance to differ materially from those expressed or implied in such forward-looking statements. Factors that lead to Kinesis’ performance to differ materially from current expectations include, but are not limited to: implementation of strategic initiatives, economic, political and market conditions and fluctuations, government and industry regulation, interest rate risk and market competition. These risks and uncertainties are not exhaustive and forward-looking statements are based on a number of assumptions that are subject to change. We operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible to predict all risks and uncertainties, nor can we assess the impact that these factors will have on our business or the extent to which any factor, or combination of factors, may cause actual results, level of activity, performance or achievements to differ materially from those contained in any forward-looking statements. Our inclusion of such projections in any report or document should not be regarded as a representation that the projections will prove to be correct. We do not assume responsibility for the accuracy or completeness of any of these forward-looking statements. You should not rely upon forward-looking statements as predictions of future events. We are under no duty to update any of these forward-looking statements after the date of any report to conform our prior statements to actual results or revised expectations and we do not intend to do so.
8. VIRUSES AND DEFECTS
8.1. We have taken appropriate steps to detect computer viruses but we cannot guarantee that our Platform and/or Services are free from malfunctions, defects, bugs and viruses; or that the Platform will operate correctly and as expected, at any given time. We shall not be liable for any loss or damage which occurs as a result of any virus, including without limitation any distributed denial-of- service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other materials.
8.2. You are responsible for configuring your information technology, devices, computer programmes and platform in order to access our Platform and Services and for protecting these with your own anti-virus software, firewalls and any other technical measures. We give no warranties as to the compatibility of our Platform and Services with your information technology, computer programmes and platform.
8.3. You must not misuse our Platform or Services by knowingly introducing viruses, trojans, worms, logic bombs, keystroke loggers, spyware, adware, and/or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware, or which is otherwise malicious or technologically harmful.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. We are the owner of all intellectual property rights in the Platform and the Services, material published on the Platform and material made available through the Platform and Services, including, but not limited to, all proprietary data, information, content, data, symbology, software, technology, products and documentation. Those works are protected by copyright laws and other intellectual property rights. All such rights are reserved.
9.2. Subject to the limited exceptions set out below, neither this Platform or the Services nor any part of them may be copied, reproduced, modified, publicly displayed, republished, distributed, extracted or reutilised in any form, without the prior written permission of us. Any breach of this restriction is strictly forbidden and shall cause us irreparable injury that cannot be adequately compensated for by means of monetary damages. Any breach hereof by you may be enforced by us by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available. Requests for permission should be sent to us via email at firstname.lastname@example.org.
9.3. You must not use any part of the material held on our Platform or made available through it for commercial or business purposes without obtaining a licence to do so from us.
11. TERMINATION OF LICENCE AND ACCESS RIGHTS
11.1.1. on thirty (30) days’ written notice to the other Party; or
12. DISPUTE RESOLUTION
12.2. Where a Party fails to comply with this Clause, that Party accepts and subsequently releases the other Party from being bound by the dispute resolution procedure, as detailed below.
12.3. Disputes of Invoices.
12.3.1. If you dispute the amount of any invoice, statement or otherwise as issued by Kinesis (‘Disputed Amount’), you herein acknowledge that you must notify Kinesis in writing before the date by which the Disputed Amount is payable, or where said payment has already been effected, as soon as is reasonably practicable where such time is not greater than two (2) Business Days.
12.3.2. If you fail to notify Kinesis pursuant to this Clause, you hereby acknowledge and agree that notwithstanding the fact that the Disputed Amount remains disputed, that it shall be required to make payment in accordance with the ordinary payment terms. Upon finalising the dispute, where the Disputed Amount is found to have been in excess of what was owing to Kinesis, Kinesis herein warrants that it shall remit or set-off any amount owing to you as soon as is reasonably practicable.
12.4.1. In the event a Party instigates a dispute:
126.96.36.199. that Party shall give written notice to the other Party nominating a representative to negotiate the dispute (‘Dispute Notice’);
188.8.131.52. within five (5) Business Days of receiving the Dispute Notice, the other Party will reply in writing nominating its representative to negotiate the dispute (‘Dispute Reply’);
184.108.40.206. the representatives of the Parties shall use its best endeavours to negotiate and settle the dispute wherein if any settlement can be achieved, it should be recorded in writing and signed by both representatives wherein said signed agreement shall be deemed to be binding upon the Parties;
12.4.2. Where the dispute has not been resolved within ten (10) Business Days of the receipt of the Dispute Reply, the Parties shall undertake to use its best endeavours to negotiate for a process to resolve the dispute wherein said process is not arbitration or litigation;
12.4.3. Where twenty (20) Business Days has elapsed since receipt of the Dispute Reply and the negotiations for an alternative dispute resolution process have been unsuccessful, the Parties may engage in arbitration followed by litigation.
12.4.4. In the event of the negotiations for an alternative dispute resolution proving unsuccessful in accordance with Clause 12.4.3 the details of the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
220.127.116.11. The number of arbitrators shall be three;
18.104.22.168. The seat, or legal place, of arbitration shall be the City of London;
22.214.171.124. The language to be used in the arbitral proceedings shall be English; and,
126.96.36.199. Any and all costs incurred by a Party in bringing a dispute shall be borne by said Party, unless otherwise agreed during negotiations or ordered during arbitration or litigation.
13. ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING FRAMEWORK
13.1.1. Kinesis takes it obligations under relevant Anti- Money Laundering Legislation, Financial Crime Legislation, Terrorist Financing Legislation and Sanctions Legislation, rules, guidance and practice (“the Financial Crime Framework”) seriously and endeavours to align its operations with the purposes and provisions as promulgated by the Financial Crime Framework.
13.1.2. Kinesis shall operate thorough monitoring, identification and verification programs to assist it in discharging relevant obligations within the Financial Crime Framework.
13.1.3. Kinesis undertakes to be proactive in the fulfilment of its obligations under the Financial Crime Framework and as such will conduct on-going, annual audit checks upon collected and held monitoring, identification and verification information to ensure compliance with relevant Financial Crime Framework Obligations.
13.1.4. Kinesis undertakes to ensure that information retained in the discharge of Kinesis’ obligations under the Financial Crime Framework is protected in accordance with relevant security requirements and standards.
13.1.5. Kinesis reserves the right, and you hereby grant Kinesis an absolute and irrevocable right to release any information collected by Kinesis in order to discharge its obligations under the Financial Crime Framework to the relevant government authorities, regulatory bodies and/or other necessarily empowered organisations without notice provided the release of information is required to satisfy Kinesis’s corresponding obligations s or is required under the Financial Crime Framework.
13.1.6. Kinesis reserves the right to request from you any additional information that is required to allow Kinesis to discharge relevant obligations under the Financial Crime Framework. Where Kinesis has requested documentation from you, and you refuse to comply with the request whether, expressly, impliedly or by conduct; at such time of refusal, Kinesis may revoke, suspend or terminate your access to KCX.
13.1.8. With respect to Clause 13.1.7, any information retained, collected and/or recorded by Kinesis during its operations shall only be accessible by you on specific terms, unless otherwise required by an applicable law.
13.1.9. You acknowledge and agree that Kinesis may utilise electronic verification methods to verify your identity in order to discharge its obligations under the Financial Crime Framework. Where you do not wish Kinesis to utilise electronic verification methods to verify your identity please contact Kinesis in writing at its address for notice detailed in Clause 17.3 requesting an alternative means of verification.
13.1.10. Without limiting the aforementioned electronic verification methods as detailed in Clause 13.1.9, Kinesis may request a credit reporting agency, or any analogous organisation, to provide an assessment of whether the personal information provided to Kinesis including within a completed Service Registration Form matches (in whole or part) personal information contained in a credit information file in the possession or control of the credit reporting agency. Alternatively, you acknowledge that Kinesis may request a credit reporting agency, or any analogous organisation, to prepare and provide such an assessment.
13.1.11. With respect to Clause 13.1.10, you acknowledge that the credit reporting agency, or an analogous organisation, may use the personal information provided by you within a completed Service Registration Form for the purpose of making such an assessment.
13.1.12. Where Kinesis is unable to verify your identity via electronic verification methods, Kinesis shall contact you detailing said inability and provide all such reasonable information to you as is required, in addition to offering an alternative means of verification.
14. VALUE-ADDED TAX AND SALES TAX
14.1.1. In this Clause 14, Value-Added Tax and Sales Tax (‘Tax’) refer to a variety of indirect taxes that may be imposed on the Platforms or Services which vary depending on the location of the customer, the location of the Service or Platforms, and/or the location to which the Service or Platform is being enjoyed.
14.2. Tax Gross Up.
14.2.2. Clause 14.1.1 does not apply to any consideration that is expressed in this Agreement to be inclusive of Tax.
14.3. Reimbursements and Indemnification.
14.3.1. If a Party reimburses or indemnifies another Party for a loss, cost or expenses, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other Party is entitled to for the loss, cost or expenses, and then increased in accordance with Clause 14.2.
15. CHANGES TO THIS PLATFORM.
15.1. You acknowledge and agree that we may update this Platform from time to time, change the content at any time and we may suspend, withdraw, discontinue or change all or any part of this Platform and the Services without notice. As such, there may be times when this Platform and/or the Services are unavailable for use.
17. CONTACT US & NOTICE.
17.2.2. Receipt of Notice: a notice, request, consent or other authorised documentation will be deemed received only when actually received or delivered pursuant to Clause 17.2.1.
17.3. Address for Notice.
17.3.1. Kinesis’s address for notice shall be as follows:
188.8.131.52. by email to: email@example.com; and,
184.108.40.206. by post to: C/O Stuarts Corporate Services, 36A Dr. Roy’s Drive, Grand Cayman, Cayman Islands, KY1-1104
17.3.2. Your address for notice shall be the address as detailed in the completed Service Registration Form, as updated from time to time.
17.3.2. With respect to Clause 17.3.2, you shall be solely responsible for informing Kinesis of any address change for such service of notices. If you do not inform Kinesis of a change in your address for notice, and Kinesis subsequently serves a notice upon your previous address where Kinesis has complied with all requirements specified within this Agreement; said service shall constitute valid receipt of notice pursuant to Clause 17.2.2.
18.1. Fees in respect of relevant Platforms and/or Services are as detailed in the Fee Schedule.
19.2. With respect to Clause 19.1, each Party acknowledges that disclosure of Confidential Information may be required by an applicable law, regulation or court order and the other Party herein releases the receiving Party from any breach as a result of such compelled disclosure pursuant to the terms of this Agreement.
19.3. With respect to Clause 19.1, you acknowledge that Kinesis may disclose information regarding your Account to the following persons:
19.3.1. Kinesis’s head office, parent corporation, subsidiaries and/or any other organisation with a common directorship;
19.3.2. consultants and advisors contracted by Kinesis with respect to the management or operation of Kinesis;
19.3.3. any rating agency, insurance provider or credit protection organisation; and
19.3.4. any court, tribunal or regulatory body with jurisdiction over Kinesis and/or you.
20.1. Publicity. You permit us to publicly mention you as our client on our web site and/or marketing materials.
20.6. Compliance with Applicable Law. You will comply with any and all laws, rules, regulations or orders applicable to your receipt of and use of the Platform and the Services.
22. GOVERNING LAW.
SCHEDULE 1 – DEFINITIONS
1.1.1. “ABX” means the Allocated Bullion Exchange, holding Australian Securities and Investment Commission registration ACN 149 681 489, having its principal place of business at Level 3, 10 Market Street, Brisbane, QLD, 4000, Australia
1.1.2. “Anti-Money Laundering Legislation” means the Cayman Islands Anti-Money Laundering Regulations (2018 Revision) and the Cayman Islands Monetary Authority (CIMA) Guidance Notes on the Detection of Money Laundering and Terrorist Financing in the Cayman Islands;
1.1.3. “Account” means the account established in KCX by Kinesis on behalf of you;
1.1.4. “Allocated” means Bullion to which a natural or legal person has legal title, with Kinesis holding it on that person’s behalf as bailee
1.1.5. “Bullion” means gold, or silver;
1.1.6. “Business Day” means any day by reference to the prevailing time zone and the QAF, except a Saturday, Sunday or a national public holiday, or a day during which trading has been suspended on Kinesis pursuant to any enactment or direction pursuant to the QAF, or a day which Kinesis declares not to be a Business Day;
1.1.7. “Cash Balance” means your cleared funds held by Kinesis in the Trust Account;
1.1.9. “Effective Date” the date on which all relevant verification, identification, Know-Your-Customer, Anti-Money Laundering and Account set up processes anticipated by the relevant Service Registration Form are completed and confirmed to you following the Submission Date;
1.1.10. “EPD” or “Exchange of Physical for Digital” means the service through which Bullion is minted into KAU and /or KAG as more particularly described in the KCX Schedule. The EPD service is accessed through KCX through completion of a KCX EPD Form;
1.1.11. “Execution Fee” means the fee charged by Kinesis for a transaction executed on KCX, relevant details can be within the Fee Schedule;
1.1.12. “Fee Schedule” means the fee details and structure listed in respect of relevant Services;
1.1.13. “Financial Crime Legislation” means the Cayman Islands Proceeds of Crime Law (2017 Revision), the Proliferation Financing (Prohibition) Law (2017 Revision) and the Anti-Corruption Law;
1.1.14. “Holdings” means Kinesis Currencies to which you have legal title as reflected in your Kinesis Address that you control;
1.1.15. “KCX EPD Form” means the form to be accessed and completed in KCX by which you can request the minting of deposited Bullion into KCX Currencies;
1.1.16. “KCX Member” means an individual or body corporate that has completed the relevant Service Registration Form as of the Effective Date;
1.1.17. “KCX Redemption Form” means the form to be accessed and completed in KCX by which the owner of Bullion held at ABX requests the withdrawal of corresponding KAU and/or KAG, as appropriate;
1.1.19. “Kinesis Currency” means KAU, KAG and any other cryptographic token issued on the Kinesis Currency Network and subject to the Kinesis Currency Network Protocols, where said cryptographic tokens are backed 1:1 with Bullion that is hallmarked by a refinery, of an accepted fineness as specified in the QAF and has the appropriate documentation to assure the Bullion’s authenticity;
1.1.20. “Kinesis Currency Network” is defined in the Kinesis Currency Network Schedule;
1.1.21. “Kinesis Currency Network Protocols” are defined in the Kinesis Currency Schedule;
1.1.22. “Kinesis Password” means the password given to you subsequent to processing of our completed Service Registration Form which, when used in accordance with its User ID, provides access to KCX;
1.1.23. “Kinesis Vault” means any vault, authorised depository or other secure facility utilised by Kinesis for the fulfilment of its bailment, storage and logistics obligations and undertakings wherein Kinesis shall use each respective vault as a trading location on KCX;
1.1.24. “Kinesis Vault Network” means every Kinesis Vault, regardless of geographical location or Vault Operator of such Kinesis Vault;
1.1.25. “Market” means either the Australian market, denominated in Australian dollars or the Global market, denominated in United States dollars;
1.1.26. “Market Open Trading Window” means the means the 23-hour period 6pm – 5pm New York Eastern Standard Time, 5 days per week (unless otherwise closed by Kinesis due to public holidays, maintenance or for any other reasons as determined by Kinesis);
1.1.27. “KCX” means the order management, inventory management and execution system utilised by Kinesis;
1.1.28. “Party” means Kinesis and you where each may be collectively referred to as the ‘Parties’;
1.1.29. “Platform Fee” means the fee charged by Kinesis for access and/or use of KCX detailed within the Fee Schedule;
1.1.30. “Prescribed Form” means Bullion in the form of bars or coins unless otherwise mutually agreed between the Parties, where said Bullion is hallmarked by a refinery, is of an accepted fineness as specified in the QAF and has the appropriate documentation to assure the Bullion’s authenticity;
1.1.31. “Quality Assurance Framework (‘QAF’)” means the framework, rules, protocols and procedures developed by Kinesis to ensure the highest levels of assured quality and transparency];
1.1.32. “Redemption” means the service through which KAU and/or KAG is withdrawn from the Kinesis Currency Network. The Redemption service is accessed through KCX through completion of a KCX Redemption Form;
1.1.33. “Sanctions Legislation” means any applicable law that is imposed, administered or enforced from time to time by: (i) the European Union; (ii) HM Treasury or the United Kingdom; (iii) the US Department of Treasury Office of Foreign Asset Control or the United States of America; (iv) the United Nations Security Council; or (v) any of their successors or such other agencies confirmed by Kinesis from time to time.
1.1.34. “Secure Storage Area” means the long-term, insured storage area of a Kinesis Vault, in which Bullion is warehoused after being inspected and approved for storage by the Vault Operator;
1.1.36. “Submission Date” means the date on which your completed Service Registration Form is received by Kinesis;
1.1.38. “Terrorist Financing Legislation” means Cayman Islands Terrorism Law (2017);
1.1.39. “Trade Confirmation” means an email confirmation provided by the KCX system confirming the terms of an executed Kinesis Currency order;
1.1.40. “Trust Account” means the bank account held by Kinesis with an authorised deposit-taking institution for the benefit of you;
1.1.41. “User ID” means the unique user identification provided by Kinesis to you to access KCX subsequent to processing of your completed Service Registration Form;
1.1.42. “Vault Operator” means a specialist storage organisation engaged by Kinesis to provide Bullion storage, infrastructure, transportation and insurance services.
SCHEDULE 2 – THE KINESIS CURRENCY NETWORK SCHEDULE
2. The Kinesis Currency Network is a proprietary blockchain network developed by Kinesis forked off the Stellar blockchain, it is an open-source protocol for exchanging Kinesis Currency using blockchain technology. The Kinesis Currency Network fork off the Stellar blockchain runs on open source and freely distributable software available at: https://github.com/kinesisNetwork.
3. The Kinesis Currency Network Stella fork is further supplemented by Kinesis developed proprietary software specifically related to Kinesis Currency usage, transaction fees, yields, Exchange of Physical for Digital (EPD), security, registration arrangements, Redemption and the related Services (“the Kinesis Currency Network Protocols”).
5. The Kinesis Currency Network is a scalable network with servers running a software implementation of the Kinesis Currency Network Stellar fork and the Kinesis Currency Network Protocols, and using the internet to connect and communicate. Each server will store a ledger of all the accounts and activity on the Kinesis Currency Network, with transactions among accounts occurring through a consensus process among trusted accounts. The network of servers will grow commensurate with the growth of the network and the use of Kinesis Currency.
SCHEDULE 3 – THE KINESIS WALLET SCHEDULE
2. THE KINESIS WALLET
2.1.1. The Kinesis Currencies are exclusively available on the Kinesis Currency Network.
2.1.2. The Kinesis Wallet is a piece of software providing a graphical interface to facilitate your use of the Kinesis Currency Network, including in relation to storing, managing, sending and receiving Kinesis Currencies in accordance with the Kinesis Currency Protocols.
2.1.3. A Kinesis Wallet can be created here.
2.1.4. The source code for the Kinesis Wallet software is available for free download at https://github.com/KinesisNetwork.
2.1.5. The Kinesis Wallet is provided to you by (“Kinesis”). At no point will Kinesis ever take custody or control over Kinesis Currencies stored in your Kinesis Wallet. Under no circumstances should you attempt to store currencies other than the Kinesis Currencies in your Kinesis Wallet.
2.2. When you create a Kinesis Wallet, the Kinesis Wallet software:
2.2.1. generates cryptographic private and public key pairs that you may use to send and receive Kinesis Currencies via the Kinesis Currency Network (“the Key Information”); and,
2.2.2. prompts you to create a password and record your recovery phrase in order to access the Wallet and any Kinesis Currencies stored in your Kinesis Wallet (“the Security Information”).
2.3. When you create a Kinesis Wallet, you must:
2.3.1. create a strong password that you do not use for any other website or online service;
2.3.2. provide accurate and truthful information;
2.3.3. protect and keep secret all Key Information and Security Information;
2.3.4. protect access to your device and your Kinesis Wallet;
2.3.5. promptly notify us if you discover or otherwise suspect any security breaches related to your Kinesis Wallet; and,
2.3.6. use the backup functionality provided through the Kinesis Wallet and safeguard your backup files.
2.3.7. You agree to take responsibility for all activities that occur under your Kinesis Wallet and accept all risks of any authorized or unauthorized access to your Kinesis Wallet, to the maximum extent permitted by law.
2.4. You are solely responsible for storing, keeping secure, and maintaining appropriate backups of the Key and Security Information related to your Kinesis Wallet. If you do not independently maintain access to relevant Key and Security Information you may not be able to access your Kinesis Wallet and/or Kinesis Currencies and related services accessible through the Kinesis Wallet.
2.5. Kinesis is not responsible for maintaining Key Information and Security Information on your behalf – Kinesis does not receive or store your Kinesis Wallet Key Information or Security Information. Kinesis cannot assist you with retrieval of Key Information or Security Information.
3. RISK DISCLOSURES RELATING TO THE WALLET
3.1. In order to be completed, any Kinesis Currency transaction created with the Kinesis Wallet must be confirmed and recorded on the Kinesis Currency Network.
3.2. Kinesis has no direct control over the Kinesis Currency Network and therefore cannot and does not ensure that any transaction details you submit via the Kinesis Currency Network will be confirmed. You agree and understand that the transaction details you submit via the Kinesis Currency Network may not be completed, or may be substantially delayed. Kinesis does not guarantee that the Kinesis Currency Network can transfer title or right in a Kinesis Currency or make any warranties whatsoever with regard to title.
3.3. Once transaction details have been submitted to the Kinesis Currency Network, Kinesis cannot assist you to cancel or otherwise modify your transaction or transaction details. Kinesis has no control over the Kinesis Network and does not have the ability to facilitate any cancellation or modification requests.
SCHEDULE 4 – KINESIS CURRENCY EXCHANGE SCHEDULE
2.1. Opening Account.
2.1.1. In order to use the KCX, you must create and maintain an Account on KCX.
2.1.2. Kinesis agrees to create and maintain an Account in your name on KCX 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 KCX.
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 on the statement issue date.
2.3.2. Kinesis will provide you with a Kinesis Currency Trade Confirmation at time of trade execution by way of email facilitated through KCX.
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.
2.4.1. 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.
2.5. KCX Platform
22.214.171.124. You shall be permitted to buy Kinesis Currency on KCX during the Market Open Trading Window.
126.96.36.199. Notwithstanding Clause 188.8.131.52, Kinesis shall endeavour to provide you with access to KCX throughout the Market Open Trading Window, unless KCX 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 KCX;
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 KCX 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.
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 KCX or other 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. Trust Account Funds
18.104.22.168. Kinesis shall not use your Cash Balance for the purpose of meeting financial obligations incurred by Kinesis, nor shall Kinesis permit your Cash 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.
22.214.171.124. Kinesis will not pay interest on any Cash Balance to you. You acknowledge and accepts that any interest on the Trust Account will accrue to Kinesis.
126.96.36.199. 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. Notwithstanding this Clause 188.8.131.52, 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 KCX, 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 KCX Currency through the KCX.
2.7.3. Where you place an order through KCX 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 KCX 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 KCX 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 KCX 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 KCX.
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 KCX 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 KCX unless the Cash Balance in the Account is sufficient to cover relevant order.
2.10.2. In the event that you repeatedly attempt to place an Order for the purchase of Kinesis Currency in KCX without the Cash Balance in the Account being sufficient to cover 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 acknowledges and agrees 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 KCX or does any other analogous actions upon KCX.
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.
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 KCX 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 KCX EPD Form shall be considered on a case by case. 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.
184.108.40.206. 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:
220.127.116.11.1. agree 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;
18.104.22.168.2. 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
22.214.171.124.3. 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.
126.96.36.199. Where a deposit is made pursuant to this 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 you, Kinesis will cause an equivalent amount of Kinesis Currency to be emitted to you in a 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. 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.
8.1.1. Redemption of Kinesis Currency for Allocated Bullion
188.8.131.52. At any point in time, you may request for your Kinesis Currency to be redeemed into Allocated Bullion through the Redemption process.
184.108.40.206. Following completion and submission of the KCX Redemption Form, Kinesis shall facilitate the withdrawal of an agreed amount of Allocated Bullion, upon the destruction of the corresponding amount of Kinesis Currency.
220.127.116.11. Each KCX Redemption Form shall be managed on a case by case. 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.
18.104.22.168. 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.
22.214.171.124. Any KCX Redemption shall be satisfied using Bullion of a Prescribed Form which satisfies relevant QAF requirements.
126.96.36.199.1. 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:
188.8.131.52.1.1. 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;
184.108.40.206.1.2. 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
220.127.116.11.1.3. 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.
18.104.22.168.2. 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).
188.8.131.52. 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.
184.108.40.206. 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 KCX.
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 title of use or wilful 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 AUD 10,000 per calendar year.
11.2. Force Majeure
SCHEDULE 5 – FEES SCHEDULE
1.1. Kinesis may charge Execution Fees, Deposit Fees, Withdrawal Fees, Transportation Fees, and any other fees set out in this Fee Schedule as detailed below.
1.3. All fees as detailed within this Fee Schedule are exclusive of Tax.
2. KINESIS CURRENCY NETWORK
2.1. Execution Fee.
2.1.1. Kinesis shall charge you an Execution Fee at the time of trade on the Kinesis Currency Network, and shall be at a rate of 0.45% of the total transaction value, calculated and debited in the Kinesis Currency.
2.2. Maximum Fees.
2.2.1. The Kinesis Currency Network shall be:
220.127.116.11. 25,000 KAUs for any one transaction; and
18.104.22.168. 25,000 KAGs for any one transaction.
3. KINESIS WALLET
4. KINESIS CURRENCY EXCHANGE
4.1. Bullion Deposit and Withdrawal Fees.
4.1.1. Kinesis may charge you a Bullion Deposit and / or Bullion Withdrawal Fee as follows:
22.214.171.124. USD 50 administration fee; and
126.96.36.199. the inspection, collection and / or transportation fee as imposed by the Vault Operator, logistics provider or inspection agency as relevant.
4.1.2. The Withdrawal Fee shall be calculated by way of quote.
4.1.3. Kinesis may, at its ultimate discretion, impose minimum withdrawal quantities from time to time.
4.2. Transportation Fees.
4.2.1. Where you request for Kinesis to arrange delivery of Bullion to or from an Approved Location pursuant to Clause 4, you herein acknowledge and agree that it shall be liable for any designated carrier charges, insurance charges incurred, customs duties, tariffs or any other administrative or regulatory charges, taxes, fees or imposts related to said transportation and delivery of the Bullion to or from an Approved Location. Furthermore, Kinesis makes no representation or warranty that you will be able to delivery to a particular Approved Location. Whether the local laws of a particular jurisdiction allow Bullion to be delivered to a particular Approved Location in that jurisdiction is ultimately your responsibility.