Terms of Service for Canadian clients

Summary of Terms of Service

The following is a summary of the Kraken.com Canadian Terms of Service provided solely for your convenience and informational purposes. You must read the complete Terms of Service below for the legally binding terms.

Summary of Kraken.com Canadian Terms of Service

This summary provides an overview of our Canadian Terms of Service that apply to your use of our website, platforms, trading and other services. This summary is not legally binding and is purely for informational purposes.  While we hope this summary section is helpful, please read the complete Terms of Service below for the legally binding terms regarding your use of the platforms and services, including with respect to issues such as the following:

• Applicable Terms.  The Canadian Terms of Service will only apply to you if you reside in Canada. We have separate terms of service that will apply to you if you reside outside of Canada.
• Account and Eligibility.  The Terms of Service sets forth certain criteria for your eligibility to use our services and platforms.  It also includes requirements about who may create an account and what you can’t do with your account.
• Our Services.  Below, you’ll find terms about how you can use our services.  There are fees associated with our services, and the Terms of Service provide more information on those fees and how they may be paid by you.  There are also a number of ways in which you are prohibited from using our services or platforms, some of which are covered below.
• Supported Digital Assets and Availability of Services.  Certain Digital Assets or Services may not be available or may only be available in certain jurisdictions.  We also may stop supporting certain Digital Assets or may stop providing certain services.  
• Changes. The Terms of Service discuss changes we can make to our services, platforms, or the terms themselves, including how we can suspend or terminate the services or platforms or your account. Changes to the Terms of Service, our services, or platforms may be made at any time, with or without notice. Continued use of our services and platforms is your consent to the Terms of Service and any changes to them.
• Risks and Liability. There are risks associated with using our services, and the Terms of Service cover some of these risks.  The Terms of Service also cover your responsibility for taking on risk, limit our liability to you, and limit the remedies you may have against us and how you may seek those remedies.    
• No Insurance.  We aren’t a bank or other depository institution.  Your account is not a deposit account or bank account. Your account and digital assets aren’t covered by insurance against losses or subject to protection by deposit insurance (e.g. CIPF, CDIC) or other investor protection insurance schemes.
• Annexes.  You may have the opportunity to use additional services we provide.  The Annexes to the Terms of Service contain terms and conditions on these additional services.
• Dispute Resolution. We hope to avoid disputes, but if there is a dispute, the Terms of Service outline the informal and formal processes we have in place to resolve it.
• Terminate Account.  You may terminate your account at any time by transferring your Digital Assets and redeeming your Fiat Balances to a Financial Account and ceasing to use our services. Certain terms of our relationship survive terminating your account, and these terms are detailed below.

The following is the binding and enforceable Canadian Terms of Service.

Kraken.com Canadian Terms of Service

Last Updated:  May 2, 2024

Please read these Canadian Terms of Service (including all Annexes, “Terms”) carefully, as they are binding and govern your use of our services (“Services”, including the services set forth in Annexes hereto), and our websites (including kraken.com, and pro.kraken.com), and mobile applications through which you access our Services (“Platform”), along with any applicable third-party terms you may have agreed to as part of using or receiving our mobile applications (such as terms for the Apple App Store or Google Play, if applicable).  If these Terms conflict with any such third-party terms, these Terms will control to the extent of the conflict.  By accessing or using our Services or Platform, or by creating an Account (as defined below), you agree to these Terms.  

These Terms may change at any time and without notice, including updates to (1) reflect changes to our Services and Platforms or how we do business; (2) reflect the addition of new services, features, technologies, or offers; (3) address legal, regulatory, or security development; or (4) prevent harm to our Services and Platforms or to those using our Services and Platforms. These Terms can only be modified in writing, and any change will be effective as of the Last Updated date set forth above. You should frequently check these Terms for updates. If you continue to access or use our Platform or Services, after we change these Terms, you agree to all our changes.

These Terms are a legally binding agreement between “you” (an individual, or an entity acting through an authorized individual) and Payward Canada, Inc. (“we”, “us”, “our”, “Kraken” or “Payward”), except for those Services provided by Payward Trading, Ltd. as described in Annex A, in which case these Terms are a legally binding agreement between you and Payward Trading, Ltd.

To make these Terms easier to read, we have organized them as follows:

Terms of Service

• 1. Eligibility; Account
• 2. Deposits of Crypto & Issuance of Fiat Balances
• 3. Withdrawals of Crypto & Redemptions of Fiat Balances
• 4. Trades
• 5. On-Chain Staking
• 6. Layer 2 Transactions
• 7. Fees; Taxes
• 8. Supported Digital Assets and Fiat Currency
• 9. Content; Feedback
• 10. Restrictions
• 11. Risks
• 12. Disclaimer of Warranties
• 13. Limitations on Liability
• 14. Indemnification
• 15. Dispute Resolution; Applicable Law
• 16. Suspension; Termination; Discontinuance
• 17. Legal Disclosures
• 18. Personal Data
• 19. Notices
• 20. General
• 21. Definitions

Annex A: NFT Services

1. Eligibility; Account

Eligibility

To use most of our Services, you need to create an account with us. Your account may hold Digital Assets, NFTs or a Fiat Balance(“Account”).  To use any of our Services, or to create an Account, you must meet at least the following conditions (“Conditions”):

• if you are an individual, be 18 years or older and a resident of Canada,
• if you are an entity, be duly organized and validly existing under the applicable laws of Canada or a province or territory of Canada, and be acting through an authorized individual who is 18 years or older,
• have a current and valid email address, mobile phone number, and street address,
• have full power and authority to enter into these Terms without violating any other agreement you have made,
• not have been restricted from using our Services,
• to the best of your knowledge, the funds being used to transact under the Agreement: (i) were not obtained or derived, directly or indirectly, as a result of illegal activities; (ii) are not intended to be used, directly or indirectly, in order to carry out a criminal offence or a terrorist activity or for the benefit of a terrorist group, (iii) are not owned or controlled by a terrorist group; and (iv) are not being tendered on behalf of a person or entity who has not been identified to you. You are not a person or entity identified on a list established under section 83.05 of the Criminal Code (Canada) or in any Regulations made under the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Canada), the Special Economic Measures Act (Canada) or any other Canadian statutes or regulations which take legislative measures against terrorist financing and against financial dealings with certain sanctioned individuals and entities (collectively, “Canadian AML and Sanctions Legislation”).

In addition, you may be required to comply with additional requirements to open an Account or use the Services in the jurisdiction in which you are located. We will use reasonable efforts to notify you of such additional requirements, but your ability to open an Account and/or use the Services will be subject to those additional requirements whether notice has been provided or not.  By making an Account or using the Services, you represent and warrant that you meet all of these Conditions.  If you stop meeting these Conditions, you must immediately notify us and stop using your Account and the Services.  We may require proof that you meet these Conditions.  Even if you meet these Conditions, we may, in our discretion, determine that you aren't eligible to have an Account or use the Services.  

You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity, to confirm the above eligibility requirements, to protect you or us against fraud or other financial crime, and as we determine may be necessary to facilitate compliance with these Terms and applicable laws. You understand and agree that we may take action we reasonably deem necessary based on the results of such inquiries, that we have no obligation to inform you of the results of any inquiry and that you expressly waive any obligation we (or are affiliates) may have to take, or advise you of, any possible remedial measures. When we carry out these inquiries, you acknowledge and agree that your personal information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full.

Your Activities

You agree to, and represent and warrant that you will:

• not use your Account for the benefit of any person other than you,
• not share your Account or password with anyone else,
• maintain the security of your Account, including by using a strong password for your Account that you don’t use anywhere else,
• notify us immediately if you discover or suspect any security breaches related to your Account,
• take responsibility for all activities that occur under your Account, and accept all risks of any authorized or unauthorized access to your Account, to the maximum extent permitted under applicable law, and
• provide accurate, complete, truthful, and updated information (including email address, mobile phone number, and street address) at all times when using any Account or Service, including when conducting a Trade, Deposit, and Withdrawal, and when otherwise prompted by any screen displayed within the Services or on our Platform.

We may, in our discretion, determine that it’s necessary or appropriate to temporarily suspend or even terminate your Account.  Please see section 16 below for information on the suspension or termination of an account.

You are solely responsible for all acts and omissions that occur under your Account, and you will be deemed to have made all actions taken using your Account.

2. Deposits of Crypto & Issuance of Fiat Balances

Financial Accounts

Many of our Services require you to have Digital Assets or a positive Fiat Balance in your Account.  To transfer Digital Assets into your Account (“Deposit”) or transfer Fiat Currency to a Designated Financial Institution to be issued a Fiat Currency balance in your Account (“Issuance”), you need to be the actual or beneficial owner of a financial account or wallet maintained outside the Services (“Financial Account”), and your Financial Account must be approved by us.  We don’t approve all Financial Accounts, and may revoke our approval of any Financial Account at any time without notice.

We aren't responsible for the use, management, or security of any Financial Account.  By using a Financial Account in connection with the Services, you represent and warrant that (1) you are the beneficial owner of the Financial Account, (2) you are in compliance with all terms and conditions applicable to the Financial Account, (3) you have the authority to make deposits to the Financial Account and take withdrawals from the Financial Account, and (4) you have provided complete and accurate information to us regarding the Financial Account.  We may require you to verify that you control a Financial Account before accepting any transfer from it, and you agree to provide us all necessary information to make such verification.  

Our Services only support certain types of Digital Assets.  See Section 8 for more information.  If you attempt to Deposit any cryptocurrency or Digital Asset that our Services don’t support or accept, you may permanently lose such cryptocurrency or Digital Asset and we won’t be liable for your loss. We may, at our sole discretion, attempt to identify and return such assets, but we have no obligation to do so. If we choose to do so, we may charge you a fee to cover our costs and expenses related to the identification and return of such Digital Asset or cryptocurrency.  Such fee may be withheld from the Digital Asset or cryptocurrency that was the subject of the improper Deposit attempt.

Execution

We don’t control or make any guarantees about the amount of time it takes to complete a Deposit or Issuance. This time frame depends upon the performance of third parties, including third-party financial institutions or payment services.

Deposits and Issuances may not be cancellable once initiated. All Deposits and Issuances are final and non-refundable once made, but you may be able to Redeem Fiat Balances or Withdraw Digital Assets in accordance with Section ‎3 (Withdrawals & Redemptions). We may, at any time and without notice, reject any Deposit or impose limits on Deposits you can make (for example, in magnitude and frequency) or a Fiat Balance Issuance. If you reverse a Deposit, Issuance, payment, or other transaction made from a Financial Account, you authorize us, in our sole discretion, to cancel the transaction or to use alternate Digital Assets and Fiat Currency in your account as necessary to complete the transaction or resolve any resulting shortfall or negative balance, including to exchange Digital Assets or Fiat Currency in your account for alternative types of Digital Assets or Fiat Currency and deduct any applicable fees.

We may charge you Fees for Deposits and Issuances.  See Section 7 for additional information on Fees.  There may also be third-party fees associated with use of Financial Accounts, and we aren’t responsible for any such third-party fees.

Fiat Currency

Whenever you instruct your bank or payment service provider to deposit Fiat Currency with a Designated Financial Institution or any other acceptable funding method that may be offered from time to time, we will issue a Fiat Balance to your Account once such funds have been cleared and received by the Designated Financial Institution. You agree that any Fiat Balance in your Account is only for the purchase of Digital Assets or Redemption to a Financial Account approved by us. We don’t pay interest on any Fiat Currency balances held in your Account.

All of your Fiat Currency deposits will be held in a designated trust account with a Designated Financial Institution.

Custody and Title of Digital Assets

Digital Assets held within your Account are custodial assets and are held by us in trust for your benefit in a designated trust account at a Crypto Custodian or online in “hot” wallets administered by us.  Title to all Digital Assets you hold within your Account remains with you at all times and does not transfer to us, except as provided herein.  None of the Digital Assets in your Account or any other customer Account are our property, are loaned to us, or are subject to the claims of our creditors, and we don’t represent or treat Digital Assets in your Account, or in any other customer’s account, as our property.  However, a court may disagree with our treatment of your Digital Assets and subject them to claims of our creditors.  We can’t grant a security interest in the Digital Assets held in your Account (but we don’t represent or warrant that any Digital Asset is free or clear of any security interest or other lien or encumbrance).  Except as required by a facially valid court order, or as set forth in these Terms, we won’t sell, transfer, loan, hypothecate, or otherwise alienate any Digital Assets in your Account unless you instruct us to.  If you elect to participate in Bonded Staking, the foregoing sentence is subject to the Bonded Staking restrictions set forth in Section 5.

You own and control the Digital Assets in your Account.  Subject to these Terms (including its Annexes), any outages or downtime, a court order, other applicable policies, or as otherwise provided herein, you may withdraw your Digital Assets from your Account as described in these Terms.  In order to more securely and effectively custody Digital Assets, we may use shared blockchain addresses, that we control, to hold Digital Assets on your behalf and to hold on our behalf. We maintain separate ledgers for your Account and our accounts.  

We may hold Digital Assets in your Account in a variety of ways, including across multiple blockchain protocols, such as “Layer 2” networks, alternative “Layer 1” networks, or side chains. In connection with holding your Digital Assets, we may transfer such Digital Assets off of the primary blockchain protocol and hold such Digital Assets on shared blockchain addresses we control or on alternative blockchain protocols in forms compatible with such protocols. You agree that all forms of the same Digital Asset that are held and made available across multiple blockchain protocols may be treated as fungible and the equivalent of each other, without regard to (a) whether any form of such Digital Asset is wrapped or (b) the blockchain protocol on which any form of such Digital Asset is stored.

Funding Methods

We may permit you to make a payment associated with the Services (including a Deposit, Issuance, or Trade) from your Financial Account(s) using a credit card or money transfer from your Financial Account (e.g., a SWIFT transfer or Interac e-Transfer).  If you make a payment using a money transfer or credit card, you authorize us to debit your associated Financial Account automatically, but you acknowledge that there may be a significant delay in crediting your Account with the amount debited (less any Fees), including delays due to third party financial institutions or payment processors.  If you select a credit card or wallet as your payment method, and any transaction using such payment method falls on a weekend or holiday or after business hours, the debit may be executed on a later business day, although the transaction fees at the time of the regularly scheduled transaction will apply.  If your payment method fails, we will notify you that the transaction is canceled and may use the remedies set forth in these Terms to recover any amount owed to us.  Credit card payments and money transfers aren't controlled by us, and we aren’t liable for any delay or rejection of any such payments or any other losses, fees, or charges associated with such payments. Your use of money transfers or credit card payments may be subject to third-party terms between you and the third party. We are not a party to such third-party terms and have no obligation or liability to you under such third-party terms. 

If you set up a recurring credit card payment or a money transfer associated with our Services, including a recurring Trade, you authorize us to execute any rejected payment again at a later time.  Each attempted execution is subject to the Fees set forth in these Terms.  You authorize us to deduct Fees directly from any assets in your Account without notice.  We may require that your Account has sufficient funds to cover, at a 1:1 ratio, any payments using credit card or money transfers for 120 days post deposit (“Unsecured Deposit Hold”). You may not withdraw the funds associated with the Unsecured Deposit Hold prior to the resolution of the Unsecured Deposit Hold.

3. Withdrawals of Crypto & Redemptions of Fiat Balances

You may be able to transfer Digital Assets from your Account (“Withdraw” or “Withdrawal”) or redeem Fiat Balances into Fiat Currency deposited to a Financial Account approved by us (“Redeem” or “Redemption”).  At most, you can Withdraw the total amount of Digital Assets or Redeem Fiat Balances in your Account, less any Fees associated with such Withdrawal or Redemption.  You cannot make a Withdrawal if the balance of Digital Assets or a Redemption if the Fiat Balance in your Account is less than any minimum balance requirements, any amounts needed to satisfy any of your open positions, or any Fees owed by you.  

When you request a Withdrawal or Redemption, you authorize us to remove the designated Digital Assets from your Account, or direct the Designated Financial Institution to deliver the amount of Fiat Currency for a requested Redemption to you (and to reduce the balance of Fiat Currency in your Account), in each case less any Fees.  A Withdrawal or Redemption may not be able to be completed partially or fully, including because the Financial Account rejects your Digital Assets or Fiat Balance or the Financial Account is unavailable.  We will attempt to complete Withdrawals and Redemptions that can be completed, whether partially or fully, within a reasonable time after your request, but we cannot guarantee Withdrawals or Redemptions will be completed within any particular time.  We aren’t responsible for any damages resulting from rejected Withdrawals or Redemptions.  

Withdrawals and Redemptions may not be cancellable once initiated.  All Withdrawals and Redemptions are final and non-reversible once made, but you may be able to Deposit the withdrawn Digital Assets or instruct an Issuance of a Fiat Balance in accordance with Section ‎2 (Deposits).  We can, at any time and without notice, reject any Withdrawal or Redemption or impose limits on any Withdrawal or  Redemption you can make (for example, in magnitude and frequency).  

We may, in our discretion, determine that it’s necessary or appropriate to suspend your ability to make Withdrawals or Redemptions. We reserve the right to suspend your ability to make Withdrawals or Redemptions altogether for an indeterminate amount of time to ensure, as determined in our sole discretion, compliance with these terms or any legal, regulatory, or administrative obligation or guidance.

4. Trades

Generally

Our Services may allow you to trade through your Account:

• a certain Digital Asset or NFT (defined below) for another Digital Asset,
• a certain Digital Asset or NFT for a certain Fiat Balance, or
• a certain Fiat Balance for a certain Digital Asset or NFT
• a certain Fiat Balance for a certain other Fiat Balance  (any of the foregoing, a “Trade”).

The Digital Assets that may be available for Trades may change, without notice. See Section ‎‎7 for more information. In addition, you may not be able to Trade certain Digital Assets or NFTs for certain other Digital Assets or Fiat Balances, and you may not be able to Trade Certain Fiat Balances for certain other Fiat Balances or Digital Assets. See our website for more information. 

For more information regarding NFTs or the NFT services please refer to Annex A below. Don't trade NFTs or use the NFT services if you don't understand the terms that apply to and govern them. 

Please refer to our Trading Guide for more information regarding trading, including some important terminology associated with trading. If you don’t understand everything in our Trading Guide or important terminology around trading, don’t make any Trades.

Execution

See Section ‎2 (Deposits of Crypto and Issuance of Fiat Balances) for more information on funding your Account with Digital Asset or Fiat Balances prior to making a Trade.  To make a Trade, you must submit an order through the Services (“Order”).  Please see our Order Types page for a description of the various types of Orders that our Services may permit you to make (“Order Types”).  Certain Order Types may not be available to you or may be subject to additional terms and conditions set forth in an Annex.  We can remove or change any Order Type at our discretion at any time.  Order Types may be limited to certain Digital Assets and not all Digital Assets may be the subject of a Trade for every Order Type.    

When you submit an Order, you authorize us to execute a transaction in accordance with such Order (and the Order Type you choose, if applicable) and to charge you any applicable Fees (defined below).  We cannot guarantee any Order will trade at any particular exchange rate and the exchange rates that may be used for your Order may differ from such rates provided by third parties.  We aren’t responsible for matching any third-party rates or providing you any particular rates.  The actual rate at which an Order is executed may be different from the current market exchange rate indicated by our Services at the time of your Order, and we aren’t liable for any such difference or any price fluctuations of Digital Assets or Fiat Balances.  Any rate shown in our Platform is only valid during a specific period and may not be current. If the Order Type you choose for an Order is set to execute only at a certain price or only if certain contingencies are met (for example, a limit order), we can’t guarantee that such Order will ever be executed in whole or in part.

We may provide you confirmation of Trades you successfully execute. If we don’t provide confirmation, that doesn’t mean the Trade didn’t happen. Your account “History” page will reflect successfully executed transactions. Proceeds from a successfully executed Trade will be credited to your Account, less any applicable Fees, and the Digital Assets or Fiat Balances you traded for such proceeds will be removed from your Account.

We may reject any Trade or other transaction at our sole discretion, whether confirmed by you or not, and we aren’t liable to you for any rejection.

Trades in which you enter an order with a specified trading pair and quantity after receiving a quote from Kraken providing indicative trade terms and fees are filled by us on a principal basis.

Trades in which you submit limit or market buy and sell orders, including through Application Programming Interface (API) access to the Kraken Platform, are executed by us on an agency basis, on your behalf.

Recurring and Custom Trades

You may have the option to make Trades on a recurring or custom basis using our Service.  If you elect to make recurring or custom Trades, you authorize us to initiate recurring or custom electronic purchases or sales using Digital Assets and Fiat Balances in accordance with your selections and using any of your corresponding Financial Accounts, if applicable. Your authorization will remain effective until you change your recurring or custom Trades settings in your account settings. Changes in your recurring or custom Trades settings may take up to one day to become effective.  You agree to keep your payment method updated in your Account as long as you have recurring or custom Trades active or scheduled.

Your recurring Trades will occur based on your period selection (e.g., daily, weekly, bi-weekly, monthly) until canceled. Recurring Trades scheduled for the 29th, 30th, or 31st day of a month will be processed on the earlier of the date scheduled or the last day of the applicable month. For example, recurring Trades scheduled for the 31st will be processed on the 30th in April, June, September, and November. We may attempt to execute your recurring Trade on the day that you select, but transaction times may vary. You acknowledge that the amount of any Digital Asset you purchase or sell in each recurring Trade will depend on the market price at the time of the Trade and will only be determined once the Trade is executed.

While we will attempt to fulfill custom Trades at the chosen price once the custom Trade is triggered, there is no guarantee that the order will execute at the price chosen in the custom Trade and the custom Trade may not execute immediately after it is triggered.

We may reject or cancel a recurring or custom Trade (in whole or in part) for any reason. We aren’t liable for any recurring or custom Trade or any failure to make a recurring or custom Trade (including any rejection or cancellation of a recurring or custom Trade in whole or in part). You should regularly check the status of your recurring and custom Trades. We won’t verify the information or details of your recurring or custom Trades. You agree that the information and details of your recurring and custom Trades as provided by you are accurate and complete and as such may be treated and acted upon by Kraken.

We may, at any time and without liability, suspend or delay recurring or custom Trades (in whole or in part) without notice or terminate recurring or custom Trades by providing notice to you, unless such notice is prohibited by law.

You understand that applicable transaction fees and taxes may change. Details regarding current fees can be found at our Fee Schedule under the Instant Buy/Sell tab. You are presented with the applicable fees charged by us before entering into the transaction. Your confirmation of the transaction constitutes agreement to pay all such applicable fees. You will not be charged any such fees in the unlikely event your transaction is rejected. Your payment provider may charge additional fees in connection with your transaction. You understand and agree that you are fully responsible for your payment providers’ fees for all recurring and custom Trades.

OTC Trades

If You meet the relevant eligibility criteria, You may have the option to make over-the-counter Trades using our Service (“OTC Services”). Any trades entered into in connection with the OTC Services are filled by us on a principal basis.

You may terminate your OTC Services engagement with us at any time by providing written notice (email sufficient) if there are no outstanding transactions. Should you give notice while a transaction is outstanding, your engagement will not be terminated until such transaction is complete. In accordance with Section 16 below, we reserve the right, to temporarily or permanently, suspend the OTC Services, including terminating any outstanding transactions, at our sole and absolute discretion at any time.

You acknowledge and agree that, at the time you make use of any of the OTC Services with funds held on the Kraken platform or in a third-party wallet, you have the legal right to control and manage such funds, and such funds may not necessarily be owned by you but are free and clear of any liens and encumbrances.

You understand and agree that all fees associated with the OTC Services are disclosed prior to executing an OTC transaction and are contained in the confirmation for your transaction. The fee may be in addition to the quoted price and listed on the confirmation or the quoted price may be inclusive of all fees. There are no exit fees associated with the OTC Services.

Cancellation

All Trades are final and non-refundable. All Orders are non-cancellable, including before or after we execute a Trade, unless otherwise provided in these terms. In some circumstances, you may have the opportunity to request cancellation of an Order before we execute the Trade, but we may refuse any cancellation request at our sole discretion.  If we fulfill such a cancellation request, that doesn’t mean we will cancel future orders in the same or similar circumstances. If your Trade or other transaction is not successful or your payment method does not have sufficient amount of Fiat Balance or Digital Assets to complete the Trade or other transaction, you further authorize us, in our sole discretion, to cancel the Trade or transaction or to use alternate Digital Assets and Fiat Currency in your account as necessary to complete the transaction or resolve any resulting shortfall or negative balance, including to exchange Digital Assets or Fiat Currency in your account for alternative types of Digital Assets or Fiat Currency and deduct any applicable Fees and taxes.

Errors

In the event of an error, whether via our services or platforms, in a purchase order confirmation, in processing your purchase, in funding your account, in transferring Fiat Currency or Digital Assets to a Financial Account, or any other transaction, we reserve the right, and you authorize us, to correct such error, including by revising the transaction (including charging the correct price), canceling the transaction, or taking any other action to resolve the error (including exchange Fiat Currency or Digital Assets in your account for alternative types of Fiat Currency or Digital Assets and deducting any applicable Fees and taxes to correct the error).

Insufficient Assets

If you have an insufficient amount of Fiat Balance or Digital Assets in your Account to complete a Trade, we may choose to cancel the entire Trade or fulfill a partial Trade using the amount of Fiat Balance or Digital Assets currently available in your Account, less any Fees and taxes.

Restrictions

We can, at any time and without notice (1) refuse to execute any Trade or Order at our sole discretion, including if you don’t have sufficient Digital Assets, NFTs, or Fiat Balance held or reflected, as applicable, in your Account and (2) impose limits on Trades (for example, limiting the number of open bids, offers, or Orders or restricting Trades from certain locations).

Availability

While we employ measures to ensure that our Services are accessible 24 hours a day and 7 days a week, including during periods of maintenance, high volatility and/or demand, we cannot guarantee uninterrupted or error-free operation of our Services.

5. On-Chain Staking

In connection with our Services, you may have the option to contribute and earn rewards by participating in our “On-Chain Staking Services” (defined below). The On-Chain Staking Services are a separate and distinct IT service, which means a general commercial activity that is provided to you by means of a technical IT infrastructure and your fulfillment of all applicable eligibility criteria.  We may perform any or all of the On-Chain Staking Services directly or through one or more service provider(s).  Please refer to the resources provided on our Platform for more information regarding On-Chain Staking Services.

On-Chain Staking Services  

When you elect to stake a Digital Asset that is eligible for staking (each, a “Supported Token”), you consent to us staking such Supported Token in part or in entirety. You retain ownership of each Supported Token that is staked and each Supported Token remains your property when staked.  The Section of the Terms titled “Custody and Title of Digital Assets”, which applies to Digital Assets, also applies to Supported Tokens.

Opting into On-Chain Staking Services & On-Chain Staking Reward Terms

In order to use the On-Chain Staking Services, you must select the Supported Token to stake, and the amount you wish to stake, from your Account.  We will remit to you the applicable percentage of staking rewards received from the Supported Token protocol attributable to your staked Supported Tokens (“Staking Rewards”), provided that the applicable percentage and timing of such remittances will: (i) be determined by us in our sole discretion; (ii) be subject to our staking fee; (iii) vary by the Supported Token protocol; and (iv) be further detailed in your Account. You understand and agree that we don't guarantee that you will receive Staking Rewards and that the applicable percentage (i) is an estimate only and not guaranteed (and that past Staking Rewards aren't indicative of expected future Staking Rewards), (ii) may change at any time in our sole discretion, and (iii) may be more or less than the actual Staking Rewards we receive from the Supported Token protocol. For all eligible stakeable assets, you understand and agree that we, in our sole discretion, may limit the amount of assets that you are able to stake. For stakeable assets eligible for Rewards, individual limits on staking will be updated from time to time and will be viewable here. Additionally, for standard Flexible Staking, we stake only a portion of the assets you select to stake on-chain; the remainder is held to ensure our ability to offer adequate liquidity in the relevant assets. In the event that insufficient liquidity is available in a particular staked asset, we reserve the right, in our sole discretion, to delay the release of any of your remaining unstaked assets under the Flexible Staking program until after the relevant unbonding period has elapsed based on the blockchain protocol.  When you elect to participate in Bonded Staking, you are instructing us to commit the token to the relevant blockchain’s unbonding period and you won’t be able to access your tokens during the specified period after you elect to unstake.

Slashing Penalty

A determination by the Supported Token protocol that the On-Chain Staking Service has been erroneously operated may result in a “slashing penalty” (loss of staked Digital Assets) and non-payment of the applicable Staking Rewards by the Supported Token protocol.  We agree to compensate you for any such penalties, unless the penalty is a result of (i) your act or omission, (ii) Supported Token maintenance, a bug, or an error, (iii) an act by a malicious actor or hacker, (iv) a breach of these Terms, whether by you or any other person or entity, or (v) a Force Majeure Event (defined below).  

No Guarantee of On-Chain Staking Services

We cannot guarantee uninterrupted or error-free operation of the On-Chain Staking Services or that we will correct all defects or prevent disruptions or unauthorized access.  We may suspend or discontinue the On-Chain Staking Services in our sole discretion at any time.  In the event of any disruptions, suspension, or discontinuance of the On-Chain Staking Services, any staked Supported Tokens may stop generating the Staking Rewards and you may not receive any (and you may forfeit all) Staking Rewards whatsoever.  The decision as to whether and to what extent On-Chain-Staking Services are provided is at our sole discretion. You hereby acknowledge and agree that we disclaim and have no responsibility for any loss, liability, or damage you may incur, directly or indirectly, in connection with the On-Chain Staking Services, including any loss, liability or damage arising directly or indirectly from: (a) your use of or inability to use the On-Chain Staking Services; (b) any interruption, error, or defect of the On-Chain Staking Services; (c) any third-party disruption of or unauthorized access to the On-Chain Staking Services; or (d) any suspension or discontinuance of the On-Chain Staking Services.

6. Layer 2 Transactions

You may have the option to utilize “Layer 2” networks in connection with our Services.  We make this option available to you solely for your convenience and we don't require that you use a Layer 2 network. We may, at our discretion, discontinue or change the ability of Layer 2 networks (or certain Layer 2 networks) to connect with our Services or Platform at any time. You are solely responsible for your selection of and any use of a “Layer 2” network in connection with our Services and we make no representations, warranties, or guarantees that any Layer 2 network will connect with our Services or Platform or that such Layer 2 network will function or perform in accordance with your expectations.  You are solely responsible for, and you hereby consent, acknowledge and agree that we disclaim and have no responsibility for, any loss, liability, or damage you may incur, directly or indirectly, as a result of your use of a Layer 2 network.  

7. Fees; Taxes

Our Fees

You agree to pay us all applicable fees associated with your use of the Services (“Fees”), including fees for Trades, Deposits, Issuances, Redemptions and Withdrawals.  You authorize us, or our designated third-party providers, to charge or deduct Fiat Balances or Digital Assets held or reflected, as applicable, from your Account to cover any applicable Fees associated with your use of the Services.  The relevant Fees are shown in our Fee Schedule.  

Transactions using the Instant Buy/Sell Services are subject to fees and a spread that is included in the transaction price. Applicable transaction fees and spreads may change. Our current fees can be found in the Fee Schedule under the Instant Buy/Sell tab. Fees may differ depending on the selected payment method (e.g. account balance, card, Interac). Spreads may be determined based on a combination of factors, including market conditions, asset, order size, type of trade, participation in Kraken’s VIP program, and trading and custodial activity. Spreads typically vary between 0%-1.5% of the trade amount, but may be up to 3% in extreme conditions.

Your payment provider may charge additional fees in conjunction with your transaction, however we do not know the fees charged by your payment provider. You understand and agree that you are fully responsible for your payment providers’ fees for all transactions.

We may change the fees and fee Schedule at any time, without notice. Changes to our fee Schedule are effective as of the effective date shown on the fee Schedule, and changes will apply prospectively to your use of the services.

In the event we determine there are insufficient funds to pay any Fees, you hereby authorize us to sell Digital Assets from your Account sufficient to pay any Fees due.  In addition, to the extent Fees are required to be paid in a particular denomination of Fiat Currency, you authorize us to receive the proceeds of any sale of Digital Assets in such denomination of Fiat Currency and/or to convert any Fiat Balance held in your account to the required denomination.  You are responsible for any and all additional Fees that may be incurred to sell Digital Assets and/or convert Fiat Balance denominations in order for the Fees to be paid to us.  

If you fail to pay Fees or any other amounts owed to us, interest will accrue on such unpaid amounts at the greater of the rate of 18% per year, or the maximum amount allowed by law.  In addition, we may refer your outstanding amounts to a third party for collection, and we will charge you a collection fee of 18% of the outstanding amounts due or the maximum percentage permitted by applicable law, to cover our collection-related costs.

Third-Party Fees

Your use of the Services may also incur third-party fees, such as fees associated with your Financial Account, or other fees, such as gas fees.  You are solely responsible for paying all such fees.

Taxes

You alone are responsible for determining what taxes apply to your use of the Services, including for Trades, Deposits, and Withdrawals, and for reporting and remitting the correct taxes to the appropriate tax authorities.  You agree that we have no responsibility or liability for determining what taxes apply or for collecting, reporting, withholding, or remitting any taxes arising from any trades or transactions, unless otherwise required by law.

Notwithstanding anything herein to the contrary, we may withhold (or cause there to be withheld, as the case may be) from any amounts otherwise due or payable to you such federal, national, provincial, local income non-income, or other taxes as may be required to be withheld pursuant to any applicable law or regulation of any jurisdiction or taxing authority.  You authorize us, in our sole discretion and in lieu of a separately stated tax amount, to increase any applicable Fees to account for taxes owed on a particular transaction undertaken using our services.

We are subject to various obligations imposed by the tax (and other) laws and supervisory authorities of various jurisdictions. These obligations may require us to request additional information, documentation or certifications from you and process certain personal data for identity verification, payment processing, compliance with court orders, tax laws or other purposes not disclosed herein. Please refer to our Privacy Notice for Information we may collect about you. These obligations may arise at various times, including, but not limited to, client on-boarding, payment processing, and systemic checks for risk management, and may change without notice. We reserve the right to lock, disable and close accounts as deemed necessary by us in order to comply with any such legal and regulatory obligations now existing or hereinafter imposed.

8. Supported Digital Assets, NFTs and Fiat Currencies

The Digital Assets, NFTs, and Fiat Currency supported by our services are identified on our website (see here for supported Digital Assets, here for supported NFTs and here for supported Fiat Currency) and may change at any time, without notice, in our sole discretion. Certain Digital Assets, NFTs or Fiat Currencies may not be available for a Trade, Deposit, Issuance, Withdrawal, or Redemption at all times.  The availability of Digital Assets, NFTs or Fiat Currency for a Trade, Deposit, Issuance, Withdrawal, or Redemption on the Platform does not guarantee that such Digital Assets NFTs or Fiat Currency will be available for a Trade, Deposit, Issuance, Withdrawal, or Redemption in the future.  You are solely responsible for monitoring which Digital Assets and Fiat Currency are supported by the Services.  We aren't liable for discontinuation of support of any particular Digital Asset, NFTs or Fiat Currency, even if you are engaged in a time-sensitive Trade, Deposit, Issuance, Withdrawal, or Redemption.  We reserve the right to discontinue supporting any Digital Asset, NFTs or Fiat Currency with or without notice. You acknowledge and agree that we may take any action necessary to discontinue our support of a Digital Asset, NFT or Fiat Currency, including but not limited to canceling your trade instructions and requiring you to remove discontinued Digital Assets, NFTs or Fiat Balances from your Account in a reasonable period of time, and under no circumstances will we be liable to you for any direct or indirect losses, damages, or costs that you may suffer in connection with any actions or inaction we may take in accordance with this Agreement to discontinue our support of a Digital Asset, NFT or Fiat Currency. 

9. Content; Feedback

Our Content. We or our licensors own (1) our Services and Platform, (2) all content, materials, software, and trademarks found on them, (3) the selection and arrangement of them, and (4) all intellectual property rights in them (collectively, “Our Content”).  So long as you comply with these Terms, you are permitted to use our Services, and Our Content made available to you as part of our Services, but only for your own benefit.  We can take away this permission at any time for any reason. You don’t have or acquire any rights to Our Content beyond the limited, revocable permission in the previous sentence.

Your Content. You may have the opportunity to transmit content or materials in or through our Services or Platform (“Your Content”, excluding Personal Data as defined in our Privacy Notice).  You grant us a perpetual, irrevocable, royalty-free, worldwide, fully sublicensable, non-exclusive right and license to use and exploit Your Content in any manner and for any purpose.

Feedback.  You may provide us feedback, suggestions, or ideas relating to our Services or Platform (“Feedback”).  You represent and warrant that you have the right to provide us any Feedback that you provide.  You agree that we will own all Feedback, and you hereby irrevocably assign all right, title, and interest in and to all Feedback to us.  

Waiver of Moral Rights. You irrevocably waive and agree never to assert, to the greatest extent permitted by law, all of your moral rights whatsoever in your Feedback and Your Content, including any right to the integrity of any your Feedback and Your Content, any right to be associated with any your Feedback and Your Content, and any right to restrict or prevent the modification or use, of any of your Feedback or Your Content in any way whatsoever.

Other Content and Services.  When using our Services or Platform, you may come across links to third-party content, or you may have the opportunity to use third-party services in connection with our Services or Platform.  We don’t control or endorse any third-party content or services and aren’t liable to you for third-party content or services in any way.  Your use of third-party content or services may be subject to additional terms and conditions with third-party providers, and we aren't part of those terms or conditions. For example, we use Google’s Places API to mitigate errors in account address records during account creation, which may delay account creation and verification. Your use of Google’s Places API during account creation is subject to Google’s Terms of Service and Google’s Privacy Policy. If any third-party terms and conditions conflict with these Terms, you agree that these Terms control.

10. Restrictions

You won’t:

• use Our Content to engage in, pay for, or support any illegal, fraudulent, deceptive, or manipulative conduct, including illegal gambling activities, money-laundering, or terrorist activities,
• use Our Content in any way or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of us or any third party, or applicable local, provincial, or federal law or regulation, or that is prohibited by these Terms,
• remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any intellectual property or proprietary rights notices from Our Content,
• use, export, reexport or transfer any of Our Content for any purpose prohibited by Canadian or local export or import control laws and regulations,
• copy, modify, disassemble, decompile, or reverse engineer Our Content (except to the extent such restrictions are prohibited by applicable law),
• use (except as expressly permitted in these Terms), license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Our Content in any way,
• take any action or use Our Content in any manner that could damage, destroy, disrupt, disable, impair, overburden, or otherwise impede or harm in any manner Our Content, or interfere with any other party’s use of Our Content,
• disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to Our Content or any computer network,
• bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure implemented by us or any of our service providers to protect Our Content,
• use any device, software, or routine that interferes with the function of Our Content or transmit in or through Our Content, or use in connection with Our Content, any virus, trojan horse, worm, backdoor, time bomb, malware, or other software or hardware devices designed to permit unauthorized access to, or disable, erase, or otherwise harm, any computer, systems, or software,
• access or use Our Content to build or support products or services competitive to our products or services,
• use any web scraping, web harvesting, or data extraction methods to extract any data from Our Content,
• create, use, operate, or employ any bots, robots, parsers, spiders, scripts, programs, routines, or any other forms of automation to engage in any activity on Our Content,
• develop any third-party applications that interact with Our Content without our prior written consent,
• use or attempt to use another user’s Account without authorization,
• use or attempt to use Our Content for any person other than yourself,
• allow access to your Account to any person other than yourself,
• provide false, inaccurate, or misleading information in connection with your use of or access to Our Content, or
• encourage, permit, or enable any other person or entity to do any of the foregoing.

In addition, not all of our Services are available on every Platform or in every location.  You won’t attempt to access any Services that are unavailable in your location.

11. Risks

There are substantial risks associated with using our Services, including conducting Trades.  You should carefully consider whether using our Services is suitable for you in light of your circumstances, knowledge, and financial resources.  These risks can be found on our Legal Disclosures page, which is incorporated into these Terms by reference, however the list of risks is not complete and cannot list all risks associated with your use of the Services.

You acknowledge and agree that your access to and use of the Services, including conducting Trades, is at your own risk, and that we aren’t liable to you for any losses you incur arising from such risks.

12. Disclaimer of Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICES AND PLATFORMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT RELATING TO OUR SERVICES AND PLATFORMS.  WITHOUT LIMITING THE FOREGOING, WE DISCLAIM THAT OUR SERVICES OR PLATFORMS WILL BE AVAILABLE, ACCURATE, SECURE, USEFUL, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WITH OUR SERVICES OR PLATFORMS CAN OR WILL BE CORRECTED, OR THAT THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.  WE DO NOT PROVIDE ANY UPTIME GUARANTEES, AND WE MAY DISCONTINUE MAKING OUR SERVICES OR PLATFORMS AVAILABLE TO YOU AT ANY TIME AT OUR SOLE DISCRETION.

13. Limitations on Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE, OUR AFFILIATES, NOR OUR OR OUR AFFILIATES’ OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS WILL BE LIABLE WITH RESPECT TO ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, RELATED IN ANY WAY TO THESE TERMS,  OUR SERVICES OR OUR PLATFORMS FOR (1) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA AND (2) TO THE EXTENT NOT ALREADY EXCLUDED, ANY AMOUNTS EXCEEDING $100 CANADIAN DOLLARS.

14. Indemnification

You agree to defend, indemnify, and hold harmless us, our affiliates, and our or our affiliates’ officers, directors, members, employees, and agents, from any claim, demand, action, damage, loss, cost, or expense (including reasonable attorneys’ fees) relating to (1) your use of our Services or Platform, (2) your violation of these Terms, (3) your infringement, misappropriation, or violation of the rights of any other person or entity, (4) any content, materials, or information (in any form or medium) that you submit, post, upload, provide, contribute, or make available (or authorize or instruct us to do so) through the Services or Platform, and (5) any Feedback.  If you are obligated to indemnify us, we have the right to control any action if we want and you cannot settle any action without our consent, unless the settlement is only for money damages which you entirely pay.

15. Dispute Resolution; Applicable Law

You and Kraken agree to notify each other in writing of any dispute arising from, connected with, or relating to these Terms or your use of the Services within 30 days of when it arises. Notice to Kraken must be sent to [email protected]. You and Kraken further agree to attempt informal resolution prior to any formal demand or legal proceeding.

Kraken is a member of the Ombudsman for Banking Services and Investment (OBSI). For any disputes or matters arising from, connected with, or relating to these Terms or your use of the Services that is not resolved informally via the process described above, you have access to the OBSI dispute resolution mechanism at no cost for claims up to $350,000 CAD, subject to the complaint process described in National Instrument 31-103. For all claims, whether or not the dispute is subject to the OBSI-resolution process, you submit to exclusive jurisdiction by the provincial and federal courts located in the City of Toronto, Ontario, and to the laws of the Province of Ontario and applicable Canadian law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard by OBSI or in court or in any other venue, you and Kraken will not commence against the other a class action, class arbitration or representative action or proceeding.  

16. Suspension; Termination; Discontinuance

We can, at any time and without liability or prior notice to you:

• modify or discontinue our Services or Platform (or any parts of them),
• suspend, restrict, or terminate your access to our Services or Platform,
• suspend, restrict, or delete your Account, any information related to your account, or any content you post to the Services or Platform, or
• reject any Deposit, Withdrawal, Trade, or other transaction or use of the Service.

If we terminate your Account, we will contact you to return any Digital Assets or NFTs in your Account to you and/or will instruct any Designated Financial Institution to Redeem your Fiat Balances, except in each case if you owe us any Fees or if we believe you have committed fraud, negligence, or other misconduct.  If you are inactive for a protracted period and we are unable to return any Digital Assets or NFTs or Redeem Fiat Balances in your Account to your designated Financial Account, then we may be required to report and remit such Digital Assets, NFTs and Fiat Balances in accordance with any applicable provincial unclaimed property laws. Provincial unclaimed property law may require liquidation of the Digital Assets and NFTs held in your Account.

17. Legal Disclosures

We are required by law to make certain disclosures in connection with our Services and Platform.  These legal disclosures can be found on our Legal Disclosures page, which is incorporated into these Terms by reference.  Certain legal disclosures may be jurisdiction-specific.  You acknowledge that you have read, understand, and agree to the legal disclosures applicable to you.

We maintain licenses and registrations in certain jurisdictions to provide you our Services. These licenses or registrations may impact our provision and your use of our Services depending on where you live or are domiciled.  Our Legal Disclosures page contains information on such licenses (or lack thereof) to the extent required by certain jurisdictions.

18. Personal Data

Please read our Privacy Notice for information about how we collect, use, and share your personal information.  Our Privacy Notice is incorporated into these Terms by reference.

19. Notices

You agree that we may electronically provide you all communications, agreements, documents, receipts, notices, tax forms, and disclosures (“Communications”) in connection with your Account or use of our Services.  You agree that we may provide Communications to you by posting them on our Services or Platform, by emailing them to you at the email address you provide, or by sending an SMS or text message to a mobile phone number that you provide.  Your carrier’s normal messaging, data, and other rates and fees may apply to any mobile Communications  you should retain copies of all Communications for your records.

To access and retain electronic Communications, you will need a computer with an Internet connection that has a current web browser with cookies enabled and sufficient storage space, 128-bit encryption, and a current and valid email address and mobile phone number on file with us. For certain Communications, such as tax forms we will need to send to you, you will also need software to view PDF files.

You may withdraw your consent to receive electronic Communications by sending a withdrawal notice to https://support.kraken.com.  If you do, we may suspend or terminate your use of our Services.  Any withdrawal of consent to receive electronic Communications will act as your affirmation that your street address on file with us is current, and any Communications we are required to provide to you may be sent in paper form to that physical address.

If you would like a paper copy of any Communication, you may request one within 30 days after we provided it to you electronically by contacting our support at https://support.kraken.com. For us to send paper copies to you, you must have a current street address on file with us. Any request for a paper copy of a Communication is limited to that individual piece of Communication and won’t affect your consent to receive all other Communications electronically. We may charge you fees for any paper copies of Communications.

You are solely responsible for keeping your email address, mobile phone number, and street address on file with us up to date.  You can update your email address, mobile phone number or street address at any time by logging into your Account or by sending such information to https://support.kraken.com.  If we send you a Communication but you don’t receive it because such information is incorrect, our ability to contact you at the email address or mobile phone number is blocked by your service provider, or you are otherwise unable to receive electronic Communications, we will be deemed to have provided the Communication to you whether or not you actually received it.  If you use a spam filter that blocks or reroutes emails, you must add us to your email address book so that you can receive Communications.  

If your email address or mobile phone number becomes invalid such that electronic Communications sent to you by us are returned, we may deem your account to be inactive, and you may not be able to use our Services until we receive a valid, working email address or mobile phone number from you.

20. General

Force Majeure  

We aren't responsible or liable for any error, delay, loss, or damage arising from any event beyond our reasonable control (each, a “Force Majeure Event”).  Force Majeure Events include flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.  

Waiver  

If we don’t exercise a right under these Terms, we aren't waiving such right.

Enforceability  

If any provision of these Terms is invalid or unenforceable, such provision will be deemed severed from these Terms, but such invalidity or unenforceability won’t affect any other part of these Terms and the rest of these Terms will remain in full force and effect; provided, however, that if any such invalid or unenforceable provision can be modified so as to be valid and enforceable as a matter of law, then such provision is not deemed severed from these Terms and instead is deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law.    

Assignment

You cannot assign or transfer any right or obligation under these Terms without our prior written consent.  We can assign or transfer any right or obligation under these Terms, in whole or in part, without your consent, subject to compliance with applicable securities law. In addition, if we are acquired by or merged with a third party entity, we reserve the right to transfer or assign the information we’ve collected from you as part of such merger, acquisition, sale, or other change of control.

Interpretation 

In these Terms, (1) “or” is inclusive, (2) “including” or “such as” aren’t words of limitation, (3) headings are only for your convenience, (4) unless otherwise indicated, a section reference in the main body of these Terms is a reference to a section in the main body of these Terms, (5) unless otherwise indicated, a section reference in an Annex is a reference to a section in such Annex, and (6) the “Summary of Kraken.com Canadian Terms of Service” and any definitions provided only for informational purposes are provided only for your convenience, is not legally binding, and does not affect the interpretation of these Terms,.

Relationship

We don’t provide investment or tax advice, including in connection with your use of the Services.  You agree not to rely upon any statement or content on our Services or Platform, or that is otherwise attributed to us, as a recommendation, advice, or guidance regarding trades, investments, tax, or any other similar issues.  We also aren't acting as your bank, broker, intermediary, agent, advisor, or as your fiduciary in any capacity, including with respect to the Services.

Nothing in these Terms will be deemed to or is intended to be deemed to, nor will it, cause you and us to be treated as partners, joint venturers, or otherwise as joint associates for profit.

Survival 

If these Terms expire or terminate, the following Sections will remain fully binding upon you and us: 1, 2, 5, 7, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, as well as Annex A (NFT Services) in its entirety.  Termination won’t limit any of our rights or remedies at law or equity.

Entire Agreement

These Terms are the entire agreement between you and us, and supersede all prior and contemporaneous understandings between you and us about our Services and Platform.  These Terms include all applicable Annexes hereto.

21. Definitions

In addition to the capitalized terms defined throughout these Terms, the following terms have the following meanings:

“Account” has the meaning set forth in Section ‎1.  For your information, that section defines “Account” as an account you create with us.

“Canadian AML and Sanctions Legislation” has the meaning set forth in Section ‎1.  

“Communications” has the meaning set forth in Section ‎19.  For your information, that section defines “Communications” as communications, agreements, documents, receipts, notices, tax forms, and disclosures that we may provide to you.

“Conditions” has the meaning set forth in Section ‎2.  For your information, that section defines “Conditions” as certain minimum conditions you must meet to use any of our Services or to create an Account.

“Crypto Custodian” means Anchorage Digital Bank, a custodian that we have designated to custody Digital Assets that you hold in your Account for use in connection with any of our Services in accordance with regulatory requirements. Payward will hold crypto assets for you with the Crypto Custodian in a designated trust account.

“Deposit” has the meaning set forth in Section ‎3.  For your information, that section defines “Deposit” as to deposit Digital Assets into your Account.

“Designated Financial Institution” means a financial institution that we have designated to custody Fiat Currency that you hold in your Account for use in connection with any of our Services.

“Digital Asset” means any digital currency or other digital asset that is available in connection with our Services.  For clarity, a Digital Asset does not include NFTs, which are addressed in Annex A.

“Feedback” has the meaning set forth in Section 9.  For your information, that section defines “Feedback” as feedback, suggestions, or ideas that you provide us relating to our Services or Platform.

“Fees” has the meaning set forth in Section ‎7.  For your information, that section defines “Fees” as all applicable fees associated with your use of the Services.

“Fiat Balance” means the value of Fiat Currency reflected in your Account which has been deposited in a Designated Financial Institution and reconciled periodically based on your use of the Services and applicable Fees.

“Fiat Currency” means government-issued currency that is not backed by a commodity, including but not limited to Canadian Dollars, U.S. Dollars, and Euro, and that is available in connection with our Services.

“Financial Account” has the meaning set forth in Section ‎3. For your information, that section defines “Financial Account” as a financial account or wallet maintained outside the Services, of which you are the actual or beneficial owner.

“Force Majeure Event” has the meaning set forth in Section ‎20. For your information, that section defines a “Force Majeure Event” as an event beyond our reasonable control.

“Issue” or “Issuance” has the meaning set forth in Section 2. For your information, that section defines “Issuance” as being issued a Fiat Balance in your Account after deposit of Fiat Currency with a Designated Financial Institution.

“Order” has the meaning set forth in Section ‎4.  For your information, that section defines “Order” as an order you submit through our Services.

“Order Type” has the meaning set forth in Section ‎4.  For your information, that section defines an“Order Type” as one of the various types of Orders that our Services may permit you to make.

“Our Content” has the meaning set forth in Section ‎9.  For your information, that section defines “Our Content” as collectively (1) our Services and Platform, (2) all content, materials, software, and trademarks found on them, (3) the selection and arrangement of them, and (4) all intellectual property rights in them.

“Platform” has the meaning set forth in the preamble to these Terms.  For your information, the preamble defines “Platform” as our websites (including kraken.com and pro.kraken.com), and mobile applications through which you access our Services.

“Redeem” or “Redemption” has the meaning set forth in Section 3. For your information, that section defines “Redeem” or “Redemption” as redeeming a Fiat Balance into a Fiat Currency deposited into a Financial Account approved by us.

“Services” has the meaning set forth in the preamble to these Terms.  For your information, the preamble defines “Services” as our services, as well as the services set forth in Annexes hereto.

“Terms” has the meaning set forth in the preamble to these Terms.  For your information, the preamble defines “Terms” as these Canadian Terms of Service, including all Annexes hereto.

“Trade” has the meaning set forth in Section ‎4.  For your information, that section defines “Trade” as a trade, through your Account, of any of the following (1) a certain Digital Asset or NFT for another Digital Asset, (2) a certain Digital Asset or NFT for a certain Fiat Currency, or (3) a certain Fiat Currency for a certain Digital Asset or NFT, or (4) a certain Fiat Currency for a certain other Fiat Currency.

“Unsecured Deposit Hold” has the meaning set forth in Section ‎2.  For your information, that section defines “Unsecured Deposit Hold” as an amount of funds in your Account sufficient to cover, at a 1:1 ratio, any payments using a money transfer from your Financial Account (e.g. a SWIFT or Interac e-Transfer) or credit card for 120 days post deposit.

“we”, “us”, “our”, “Kraken”, or “Payward” have the meanings set forth in the preamble to these Terms. See the preamble for more information.

“Withdraw” or “Withdrawal” has the meaning set forth in Section ‎3.  For your information, that section defines “Withdraw” or “Withdrawal” as your transfer of Digital Assets from your Account to a Financial Account approved by us.

“You” has the meaning set forth in the preamble.  For your information, the preamble defines “you” as  the individual, or entity acting through an authorized individual, who is bound by these Terms of Service.

“Your Content” has the meaning set forth in Section ‎9. For your information, that section defines “your Content” as content and materials you transmit in or through our Services or Platform, excluding Personal Data as defined in our Privacy Notice.

Annex A

NFT Services

This Annex A (this “NFT Annex”) incorporates by reference and supplements the Kraken.com Canadian Terms of Service (excluding all Annexes thereto, “Main Terms”) as if the entirety of the Main Terms were set forth in this NFT Annex. Capitalized terms used but not defined in this NFT Annex have the meanings given to them elsewhere in the Main Terms.  In the event of a conflict between the Main Terms and this NFT Annex, the terms of this NFT Annex will control solely to the extent of the conflict and solely with respect to the subject matter of this NFT Annex. The NFT Services (defined below) are offered by Payward Trading Ltd, a British Virgin Islands company (“Payward Trading”). The terms “we”, “us”, “our”, “Kraken” or “Payward” mean Payward Trading throughout this Annex A.

This NFT Annex, in addition to the Main Terms, sets forth the terms and conditions governing your use of the NFT Services (as defined herein).  

You acknowledge and agree that the Main Terms are and remain entirely binding on you and applicable to your use of the NFT Services.

KRAKEN MAKES NO REPRESENTATION OR WARRANTY THAT THE NFTs AND/OR THE NFT SERVICES ARE APPROPRIATE FOR USE IN ALL LOCATIONS, OR THAT THE TRANSACTIONS AND SERVICES DESCRIBED HEREIN ARE AVAILABLE OR APPROPRIATE FOR ENTRY INTO OR USE IN ALL JURISDICTIONS OR BY ALL PARTIES. YOU SHOULD INFORM YOURSELF AS TO THE LEGAL REQUIREMENTS AND TAX CONSEQUENCES OF USING THE NFT SERVICES WITHIN ALL JURISDICTIONS APPLICABLE TO YOU. KRAKEN IS NOT RESPONSIBLE FOR TAX CONSEQUENCES TO YOU OF PARTICIPATING IN THE NFT SERVICES.

1. The NFT Services

The “NFT Services” refers to the platform and services through which we may provide the ability for you to view, search, explore, collect, showcase, bid on, offer to sell, trade, buy, sell, transfer, hold, create, and otherwise interact with non-fungible tokens (“NFTs”).   For clarity, the NFT Services are included within “Services” under the Main Terms.

1. NFT Services and Functionalities

Our NFT Services may include various functionalities, features, content, and information (“NFT Services Content”), including functionalities for searching and sorting NFTs, rarity scores and rankings of NFTs, estimated values of NFTs or other information or content related to NFTs. We disclaim all representations or warranties regarding the NFT Services and NFT Services Content, including that the NFT Services or NFT Services Content are accurate, complete, consistent, or useful. You agree that you won’t rely on any NFT Services Content, including any rarity scores, rankings or estimated values of NFTs. You acknowledge that rarity scores and rankings of NFTs are purely subjective, that estimated values are provided for illustrative purposes only, and that the price at which you may be able to sell or buy a particular NFT may be substantially less than the estimated value or be completely inconsistent with any provided rarity score or ranking.

2. Supported NFTs

We decide, in our sole discretion, which NFTs or NFT collections will be supported by the NFT Services. Not all NFTs may be usable in connection with the services. For example, you may not be able to transact certain NFTs through the NFT Services or complete NFT deposits (described below) of certain NFTs into your Account. Such determinations won’t constitute or be construed as financial or investment advice, investment or purchase recommendations, or a solicitation to buy or sell. Kraken reserves the right, in its sole discretion, to remove or restrict access to any NFT listings, scores, rankings and/or other content or information from the NFT Services at any time if Kraken believes that (a) misrepresentations have been made regarding any of such content, or (b) the continued inclusion of such content on the NFT Services would (i) infringe or misappropriate the intellectual property rights of any third party, (ii) violate any applicable law, rule or regulation, (iii) violate this Annex or the Terms, (iv) expose Kraken or its affiliates to liability or potential liability, (v) tarnish or damage Kraken’s, its affiliates’ or the NFT Services’ reputation, brand or image, or (vi) be otherwise undesirable. You are solely responsible for monitoring which NFTs are supported by the NFT Services.

In addition, the NFT Services may not support all features, functionalities, or benefits of an NFT that is otherwise partly supported by the NFT Services. For example, the NFT Services may not support certain protocols or functionalities which supplement or interact with NFTs, including ‘forked’ protocols, airdropped NFTs, or other functionality such as staking, protocol governance, access to community perks, or any smart contract functionality.

Under no circumstances will the inability to view NFTs on the NFT Services or an inability to use the NFT Services in conjunction with the purchase, sale, or transfer of NFTs available on any blockchains serve as grounds for a claim against Kraken. Our determination of what NFTs are supported does not constitute endorsement of any NFT (including the value of any NFT) or any associated content.

We aren’t liable to you for the NFT Services’ lack of support, or discontinuation of support, for any NFTs, including any loss of benefit of NFTs as a result. Our determination of what NFTs are supported does not constitute endorsement of any NFT (including the value of any NFT) or any associated content.

(c) Changes

Without limiting our right to make changes per the Terms, we may, at any time and in our sole discretion, discontinue or change the NFT Services or NFT Content in whole or in part. This includes our right to remove or restrict access to, viewing of, or transactions regarding any NFTs or NFT collections, rarity scores or rankings of NFTs, or estimated values of NFTs.

(d) NFT Deposits

The NFT Services may require you to open an Account with us. Your Account may hold NFTs that you have deposited with us. We don't control or make any guarantees about the amount of time it takes to complete a deposit of an NFT into your Account.  This time frame depends upon the performance of third parties, including third-party financial institutions, payment services, or third party providers .

Deposits of NFTs may not be cancellable once initiated. All NFT deposits are final and non-refundable once made. We can, at any time and without notice, reject any NFT deposit or impose limits on NFT deposits.

2. User Submitted Content

(a) User Submitted Content Generally

You, our other customers (including other Account holders, NFT collectors, or artists or creators of NFTs), or third parties may have the option to submit, post, upload, provide, contribute, or make available (or authorize or instruct us to do so) content, materials, or information in connection with the NFT Services, including (i) NFTs, (ii) content, materials, or data linked to or associated with NFTs (such as data, text, images, audio, video, documents, or files), including content relating to the artist or creator of NFTs (“Creators”) (iii) displays of NFTs or NFT collections, and (iv) links to third-party websites (collectively, “User Submitted Content”).  

We don’t control or endorse any User Submitted Content, and we aren’t responsible or liable to you or any person or entity for any User Submitted Content or any use thereof.  Your use of any User Submitted Content is at your own risk, and may be subject to additional terms and conditions that we aren’t a part of and we have no responsibility for.  We can remove, suspend, or restrict User Submitted Content at any time in our sole discretion.

(b) License to your User Submitted Content

You grant us (including our affiliates, and any of our respective licensees, successors, and assigns) a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), transferable right and license to:  (i) copy, reproduce, display, list, score, rank, modify, perform, publish, broadcast, link to, and otherwise disclose to third parties any User Submitted Content that you submit, post, upload, provide, contribute, or make available (your “User Submitted Content”) on or in connection with the NFT Services or NFT Platforms (defined below); (ii) use on or in connection with the NFT Services or NFT Platforms any names, user names, pseudonyms, smart contract or wallet addresses, trademarks or logos associated with your User Content; and (iii) use your User Submitted Content to operate the NFT Services or NFT Platforms, for any of our and our affiliates’ businesses (including other businesses), for analytics purposes, and to contact you.

(c) Authorization

If you post, promote, display, store, solicit offers for, or sell an NFT, or create, transfer, or hold on or through or in connection with the NFT Services or a web3 Wallet (defined below) an NFT, you authorize and instruct us to include such NFT and all related User Submitted Content on our NFT Services and other NFT Platforms, and such NFT and you grant us a license to such User Submitted Content on the same terms as set forth in Section 2(b) above.

(d) Responsibility for your User Submitted Content  

You are solely responsible for your User Submitted Content.  You will ensure that all of your User Submitted Content is legal, legally provided, reliable, accurate, appropriate, and does not infringe any rights of others.  You represent, warrant and covenant that (i) you have and will maintain all rights, licenses, consents, and permissions necessary to grant to us the rights and licenses set forth in this NFT Annex, (ii) all of your User Submitted Content does and will comply with the Terms, including this NFT Annex, and (iii) your User Submitted Content and the use thereof by Kraken, the NFT Services and users of the NFT Services as contemplated by this NFT Annex and the Terms don’t and won’t infringe any third party’s intellectual property rights and don’t and won’t violate any applicable law, rule or regulation.

(e) NFT Platforms   

We or our affiliates may, now or in the future, own and operate, in addition to the NFT Services, one or more other service(s), marketplace(s) or platforms on which NFTs and their associated content and information are displayed, made available, stored, custodied, traded, posted, linked to, or otherwise engaged with (together with the NFT Services, the “NFT Platforms”). You acknowledge and agree we and our affiliates may synchronize (including, without limitation, using automated means) User Submitted Content across one or more NFT Platforms, and that the rights and licenses granted by you in this NFT Annex extend to our use of your User Submitted Content in connection with all NFT Platforms.

(f) User Profile

If you choose to, you may have the opportunity to create a public facing profile through the NFT Services.  Any content you post on through your profile will be deemed your User Submitted Content and considered non-confidential and non-proprietary. We reserve the right to reclaim usernames without liability to you in our sole discretion. We may, in our sole discretion, delete your profile for any reason, including if we deem your username or the content you post to be offensive or inappropriate, or to be otherwise violative of the Terms.

3. Storage and web3 Connectivity

(a) Storage

To use your NFTs in connection with the NFT Services, you can either (i) deposit such NFTs for storage by us on your behalf, by transferring them to your Account in accordance with the Terms, or (ii) connect a supported, self-hosted wallet (such as your Metamask wallet) that allows you to access the NFTs in a Financial Account that you control (a “web3 Wallet”). NFTs held within your account are assets held in custody by us for you.

You bear all risks associated with storing NFTs through the NFT Services or connecting your web3 Wallet to the NFT Services, including, but not limited to, the risk of malicious software introduction, the risk that there may be unauthorized access to your third-party wallet or account, and the risk of theft of NFTs. Certain technological difficulties experienced by Kraken may also prevent the access to or use of your NFTs. You are solely responsible for determining whether a web3 Wallet is compatible with the NFT Services, and we make no representations or warranties that the NFT Services will be compatible with any specific web3 Wallet. We accept no responsibility for, or liability to you in connection with your use of any web3 Wallet. You are solely responsible for keeping your web3 Wallet secure and you should never share your web3 Wallet credentials, private key or seed phrase with anyone. If you discover an issue related to your web3 Wallet, please contact your web3 Wallet provider.

(b) Ownership

You represent and warrant that you are the lawful owner of any NFT that you (a) attempt to sell on this platform, (b) store in your Account, or (c) store in a connected web3 Wallet. You bear the risks of loss for any such NFTs, regardless of where you store those NFTs. Except as required by a facially valid court order, or except as provided herein, we won't sell, transfer, loan or otherwise alienate your NFTs unless instructed by you or as otherwise authorized by this Annex or the Terms.  For the avoidance of doubt, we make no representations to any party that any NFT is free and clear of any security interest or other lien or encumbrance.      

(c) Control

You control the NFTs held in your Account. At any time, subject to outages, downtime, this Annex, the Terms, and other applicable policies, you may withdraw your NFTs from your Account by transferring them to an external account. Similarly, we don't control the NFTs held in your external account and, subject to outages, downtime, this Annex, the Terms, and other applicable policies, you may disconnect a web3 Wallet from the NFT services at any time.

In order to more securely and effectively custody NFTs, we may use shared blockchain addresses, that we control, to hold NFTs on your behalf and held on our behalf. We maintain separate ledgers for your Account and our accounts. 

We may hold NFTs in your Account in a variety of different ways, including across multiple blockchain protocols, such as “Layer 2” networks, alternative “Layer 1” networks, or side chains. In connection with holding your NFTs, we may transfer such NFTs off of the primary blockchain protocol and hold such NFTs on shared blockchain addresses we control or on alternative blockchain protocols in forms compatible with such protocols. You agree that all forms of the same NFT that are held and made available across multiple blockchain protocols may be treated as fungible and the equivalent of each other, without regard to (a) whether any form of such NFT is wrapped or (b) the blockchain protocol on which any form of such NFT is stored.

4. NFT Trades

(a) Generally

The NFT Services may offer you the opportunity to sell, trade, or otherwise exchange NFTs for other NFTs, for Fiat Balances and/or for Digital Assets (collectively, “NFT Trades”). NFT Trades are subject to Fees and may be subject to taxes.  See Section 7 (Fees; Taxes) of the Main Terms for more information.    

When you engage in an NFT Trade, you represent and warrant that (i) you own all right, title, and interest in and to such NFT, (ii) that you have the right to display and sell such NFT through the NFT Services, and (iii) that you have the right to convey a license to any content associated with such NFT.  If you are the creator of an NFT, you agree that you won't replicate, in its entirety, the content incorporated into the NFT for the creation of additional NFTs.  If you purchased an NFT from a third party prior to depositing the NFT into your Account, you agree that by selling the NFT through the NFT Services you are selling all of your right, title, and interest to such NFT.

When you purchase an NFT through the NFT Services, your rights and obligations with respect to such NFT, and the content and benefits associated with such NFT, may be subject to and governed by third-party terms and conditions under which the seller is reselling the NFT or the original minter of the NFT initially distributed the NFT (the “Third-Party NFT Purchase Terms”). We aren't a party to any such Third-Party NFT Purchase Terms, which are solely between the buyer and the seller (or the original minter, as applicable). It’s your sole responsibility to, prior to purchasing any NFT, independently identify, read and understand the Third-Party NFT Purchase Terms that apply to such NFT (e.g., by viewing such Third-Party NFT Purchase Terms on the official website of the developer, content creator and/or minter).

You are solely responsible for verifying the identity, legitimacy, and authenticity of NFTs that you Trade through the NFT Services. We disclaim all representations or warranties about sellers of NFTs, including their identity or legitimacy or that such sellers own or have the rights to convey any NFT or any content associated therewith.

(b) Executing NFT Trades

To make an NFT Trade, you must submit an order through the NFT Services “(“NFT Order”). Certain Order Types may not be available to you or may be subject to additional terms set forth in the Main Terms or in an Annex.  We can remove or change any Order Types at our discretion at any time.  Order Types may be limited to certain NFTs and not all NFTs may be the subject of an NFT Trade for every Order Type.

By submitting an NFT Order, you authorize us to execute a transaction in accordance with such NFT Order and the Order Type you select, if applicable, and to charge you applicable Fees. We cannot guarantee any NFT Order will trade at any particular exchange rate and the exchange rates that may be used for your NFT Order may differ from such rates provided by third parties.  We aren’t responsible for matching any third-party rates or providing you any particular rates.  The actual rate at which an NFT Order is executed may be different from the current market exchange rate indicated by our NFT Services at the time of your NFT Order.

We may provide you confirmation of NFT Trades you successfully execute.  If we don't provide confirmation, that does not mean the NFT Trade did not happen.  We can reject any NFT Trade or other transaction at our sole discretion, whether confirmed by you or not, and we aren’t liable to you for any rejection.

(c) Canceling NFT Trades

All NFT Trades are final and non-refundable.  All NFT Orders are non-cancellable, including before or after we execute an NFT Trade.  In some circumstances, you may have the opportunity to request cancellation of an NFT Order before we execute the NFT Trade, but we may refuse any cancellation request at our sole discretion.  If we fulfill such a cancellation request, that does not mean we will cancel future orders in the same or similar circumstances.

(d) Restrictions

We can, at any time and without notice (1) refuse to execute any NFT Trade or NFT Order at our sole discretion, and (2) impose limits on NFT Trades (for example, limiting the number of open bids, offers, or NFT Orders or restricting NFT Trades from certain locations).

(e) Creator Earnings

We may, in our discretion, elect to collect and facilitate the payment of a portion of NFT sale or resale proceeds to parties that aren't sellers or resellers of the NFT (“Creator Earnings''). Such parties are expressly not third party beneficiaries under this NFT Annex. With respect to any sale of an NFT through the NFT Services, we may, in our discretion, elect to (i) either (a) deduct, from the sale proceeds of such NFT that otherwise would be paid to the seller of such NFT, the Creator Earnings that we determine are applicable to such sale, or (b) collect from the seller of such NFT the Creator Earnings that we determine are applicable to such sale, and (ii) pay such Creator Earnings to eligible recipients determined by us. Kraken may consider publicly accessible sources such as the data associated with a given NFTs underlying smart contract, Third-Party NFT Purchase Terms, blockchain transaction histories, and other information in determining the amount, timing, and beneficiaries of Creator Earnings, all such determinations will be made by us in our sole discretion. Where Creator Earnings are collected in the form of transaction fees or deductions from sale proceeds on the NFT Marketplace, you will be informed of the applicable amount of Creator Earnings to be collected through the NFT Services. We won't be liable for any Creator Earnings deducted or collected in connection with the sale of an NFT, and won't have any obligation to any party to collect or remit Creator Earnings.  

(f) Claiming Creator Earnings.  

In order to claim Creator Earnings, eligible persons must complete the actions requested via the NFT Services, which may include creating a Kraken Account and providing any information requested by Kraken in connection with such account creation and claims. By claiming any Creator Earnings with respect to an NFT resale, you (i) represent that you have the right to receive such Creator Earnings with respect to such NFT resale, and (ii) agree that if Kraken determines that any Creator Earnings were erroneously paid to you, you will promptly return such Creator Earnings to Kraken.

(g) Smart contracts

The functionality of an NFT may be dependent on, or dictated by, a third-party smart contract that governs such NFT. You are solely responsible for understanding all smart contracts applicable to an NFT and verifying whether the NFT functions as you expect it to. We won’t be responsible or liable for any defects in, or unexpected behavior of, any smart contract associated with an NFT, or any losses that you suffer as a result thereof.

5. Third Parties

1. Third-Party Content and Services

In using our NFT Services, you may view NFTs or other content provided by third parties, including, without limitation, links to web pages of third parties (collectively, “Third-Party Content and Services”). We don't control, endorse or adopt any Third-Party Content and Services, and will have no responsibility for Third-Party Content and Services, including, without limitation, material that may be infringing, illegal, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. When you click on a link to or access and use Third Party Content and Services, although we may not warn you that you have left our Services, you are subject to the terms and conditions (including privacy policies) of another website or destination. We aren't responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your viewing and use of Third Party Content and Services, and your interactions with third parties, are at your own risk.

2. Third-Party Disputes 

In the event of a disagreement arising between you and any other user of the NFT Services or third party, we won't provide dispute resolution services. If you have a dispute with any users of the NFT Services or third parties, you release us from claims, demands, and damages of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

6. Risks 

You accept and acknowledge, without limitation, that:

• The fact that an NFT is blockchain-based and transfers of an NFT can be verifiable does not mean that the minter or seller of an NFT has the rights necessary to grant you rights and licenses with respect to the NFT or the content associated with the NFT, and you are solely responsible for ascertaining whether your purchase of an NFT will validly and effectively acquire for you the rights and licenses you expect to receive by virtue of such purchase, including ownership of the NFT or licenses to use the content associated therewith.
• The price and liquidity of blockchain assets, including, without limitation, NFTs, are extremely volatile and subjective and may be subject to large fluctuations. We don't control the prices of NFTs. You acknowledge that you fully understand this inherent volatility and the subjective value of NFTs and that you may lose money. 
• Fluctuations in the price of other digital assets (which may also be subject to significant price volatility) could materially and adversely affect the value or price of NFTs.
• Laws and regulations governing blockchain technologies, NFTs, cryptocurrency, and other crypto-based items are uncertain, and new regulations or policies may adversely affect the use, transfer, exchange and value of NFTs.
• A lack of continued use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications and could therefore also negatively impact the potential utility of NFTs.
• Transactions in NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable.
• We don't control certain smart contracts and protocols that may be integral to your ability to complete NFT transactions.
• Defects, errors or unanticipated features of a smart contract governing an NFT may result in unexpected behaviors and results with respect to the NFT, which may include, without limitation, inability to access or transfer the NFT.
• Changes to Third-Party Content and Services (discussed above) may create a risk that your access to and use of the NFT Services will suffer. 

NFTs may be fungible with one another and may not be unique or original.

7. Intellectual Property  

Kraken respects the valid intellectual property rights of others. Each user must ensure that the materials they provide don't infringe any third-party rights, including, without limitation, copyrights.  We will respond to allegations of U.S. copyright infringement with respect to content or other materials on the NFT Services in accordance with the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512 (the “DMCA”) when we receive valid takedown notices submitted to us in accordance with the DMCA (“DMCA Notices”) and similarly valid counter notices (“DMCA Counter Notices”).

(a) DMCA Notice.  If you are a copyright owner, or an agent of a copyright owner, and you believe that any content or other materials on the NFT Services infringe your copyright, you may submit a notification to us pursuant to the DMCA by providing our DMCA agent identified below with the following information in writing at the address or email identified below with the subject line “DMCA Notice: [name of allegedly infringing NFT/collection]”:

• identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
• identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
• information reasonably sufficient to permit us to contact you, such as your name, address, telephone number, and, if available, an email address;
• a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• a statement UNDER PENALTY OF PERJURY that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the allegedly infringed copyright; and
• Your electronic or physical signature.

The Kraken designated agent to receive DMCA Notices related to the NFT Services under the DMCA (our “DMCA Agent”) is:

[email protected]

Attn: Lauren Benjamin

Payward Ventures, Inc.

100 Pine Street, Suite 1250-PMB A188, San Francisco, CA 94111, USA.

(b) DMCA Counter Notice.  If you believe that your User Submitted Content on the NFT Services have been improperly removed pursuant to a DMCA Notice because it’s not infringing, such as because you have authorization from the actual copyright owner or the owner’s agent and/or because you have the right to license us to store and display the User Submitted Content under applicable law, you may send a DMCA Counter Notice to Kraken at the address detailed above with the following information and subject line “DMCA Counter Notice: [name of allegedly infringing NFT/collection]”:

• identification of the materials that have been removed or to which access has been disabled and the location(s) at which the materials appeared before such User-Submitted Materials were removed or disabled;
• a statement UNDER PENALTY OF PERJURY that you have a good faith belief that such User-Submitted Materials were removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
• Your name, address, telephone number and, if available, email address;
• a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located or, if your address is outside of the United States, to the jurisdiction of the federal courts located in San Francisco, California, and that you will accept service of process from the party that provided notification to us of the alleged infringement; and
• Your physical or electronic signature.

If we receive a counter request containing the above information, we may send a copy of such counter request to the original complaining party and we may inform such party that we may replace the removed or disabled content in ten (10) business days. Unless we receive further notice from the original complaining party that it has filed an action seeking a court order to restrain the allegedly infringing activity, we may replace or re-enable access to the allegedly infringing content or materials ten (10) to fourteen (14) business days after the date on which we received the valid counter-request.

(c) Repeat infringer policy.  We will terminate a user account (if applicable) and/or a user’s ability to further interact with the NFT Services if there have been three (3) occasions of removal of content provided by such user (or the entity they represent) due to DMCA Notices delivered in accordance with the above procedure.

(d) Other content concerns. If you believe that any content or other material on the NFT Services infringes or violates your rights, other than copyrights (which, for the avoidance of doubt, are addressed via the DMCA notice and takedown procedure described above), you may send us a notification to the contact below. Your sending of such a notification won’t create any obligation (e.g., to review, respond or take any action) with respect to the subject matter of the notification, except if and to the limited extent required by applicable law.

[email protected]

Attn: Legal Department

Payward Ventures, Inc.

100 Pine Street, Suite 1250, Office 6, PMB A188, San Francisco, CA 94111, USA.

Any such notification should include the following information in writing:

• identification of the intellectual property or other right claimed to have been infringed or violated, including, if applicable, the registration number of the intellectual property and the applicable jurisdiction of the intellectual property or other right;
• the basis for your allegation of infringement or violation;
• identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
• information reasonably sufficient to permit us to contact you, such as your name, address, telephone number, and, if available, an email address;
• a statement that you have a good faith belief that use of the material in the manner complained of isn't authorized by the rights holder, its agent, or the law; and
• a statement UNDER PENALTY OF PERJURY that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the allegedly infringed intellectual property or holder of the allegedly violated right; and
• your electronic or physical signature.

8. Severability. 

If any provision of this Annex is held to be invalid or not enforceable by a court of competent jurisdiction, than such provision will be deemed severed from this Annex, and such invalidity or unenforceability won’t affect any other provision of this Annex, all of which will remain a part of this Annex and have their intended full force and effect; provided, however, that if any such invalid or unenforceable provision can be modified so as to be valid and enforceable as a matter of law, then such provision won’t be deemed severed from this Annex and instead will be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law.

9. Disclaimer of Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR NFT SERVICES AND NFT PLATFORMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT RELATING TO OUR NFT SERVICES AND NFT PLATFORMS.  WITHOUT LIMITING THE FOREGOING, WE DISCLAIM THAT OUR NFT SERVICES OR NFT PLATFORMS WILL BE AVAILABLE, ACCURATE, SECURE, USEFUL, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WITH OUR NFT SERVICES OR NFT PLATFORMS CAN OR WILL BE CORRECTED, OR THAT THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.  WE DO NOT PROVIDE ANY UPTIME GUARANTEES, AND WE MAY DISCONTINUE MAKING OUR NFT SERVICES OR NFT PLATFORMS AVAILABLE TO YOU AT ANY TIME AT OUR SOLE DISCRETION.

10. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE, OUR AFFILIATES, NOR OUR OR OUR AFFILIATES’ OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS WILL BE LIABLE WITH RESPECT TO ANY CLAIM RELATED IN ANY WAY TO THESE TERMS, OUR NFT SERVICES OR OUR NFT PLATFORMS FOR (1) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA AND (2) TO THE EXTENT NOT ALREADY EXCLUDED, ANY AMOUNTS EXCEEDING $100 CANADIAN DOLLARS.

11. Indemnification

You agree to defend, indemnify, and hold harmless us, our affiliates, and our and our affiliates’ officers, directors, members, employees, and agents, from any claim, demand, action, damage, loss, cost, or expense (including reasonable attorneys’ fees) relating to (1) your use of our NFT Services or NFT Platforms, (2) your violation of these Terms, (3) your infringement, misappropriation, or violation of the rights of any other person or entity, and (4) any content, materials, or information (in any form or medium) that you submit, post, upload, provide, contribute, or make available (or authorize or instruct us to do so) through the NFT Services or NFT Platforms.  If you are obligated to indemnify us, we have the right to control any action if we want and you cannot settle any action without our consent, unless the settlement is only for money damages which you entirely pay.