1. CONTRACTUAL PREVALENCE

Barring an explicit, written agreement to the contrary, the most current version of the present terms and conditions (hereinafter “Terms and Conditions”) shall apply to the provision of services by Keyrock NV incorporated, organized and existing under Belgian law, with office at Louizalaan 251, 1050 Elsene, Belgium, and registered with the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen) under the company number 0685.795.245 and all of its subsidiaries and affiliates (together “Keyrock”).

In case the relevant Agreement, as defined below, conflicts with the Terms and Conditions, the former shall prevail.

The Terms and Conditions apply notwithstanding any (latter) terms and conditions of the Principal.

Keyrock reserves the right to amend its Terms and Conditions. The amended Terms and Conditions shall apply 14 days after the notification of the amendment to the Principal.

All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in all other Keyrock agreements concluded with the Principal.

 

2. DEFINITIONS

The following definitions apply to all terms and phrases used with a capital letter in the Agreement unless the context unequivocally demands otherwise.

“Agreement” means the relevant agreement(s) that Keyrock has entered into with the Principal, including their Schedules and later amendments, the then-current version of these Terms and Conditions, and the Keyrock Privacy Notice.

“Confidential Information” means any information that is not otherwise in the public domain that is acquired or received by either Party in its performance of or in connection with this Agreement, regardless of whether specifically identified as “confidential” or not and regardless of whether such disclosure was made prior to or after the Effective Date of this Agreement, directly or indirectly, orally, in writing (by any means: written, graphic, electronic, etc.) and will include, without limitation, the intellectual property, the know-how, trade secrets, methods, processes, procedures, plans, client lists, business plans, assets, revenues, strategies and results of either Party.

“CRS” means the Common Reporting Standard. CRS is a global standard for the automatic exchange of financial account information. It requires financial institutions to report accounts held directly or indirectly by foreign tax residents to their local tax authority and requires tax authorities to exchange the account information with other public bodies.

“Effective Date” means the signing date of the relevant Agreement.

“FATCA” means the Foreign Account Tax Compliance Act. FATCA is a US legislation and is intended to increase transparency for the US Internal Revenue Service (IRS) with respect to US persons who may be investing and earning income through a non-US institution.

“Force Majeure” means any failure or delay in the performance of any obligation under this Agreement by either Party where the failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such Party.  These causes will include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, pandemic outbreaks, war or civil disturbance, strikes or other labor unrests, embargoes, and other governmental actions or regulations that would prohibit either Party from performing any of its obligations hereunder, delays in transportation, inaccessibility of the Exchanges and inability to obtain necessary labor and supplies or facilities.

“Intellectual Property Rights” or “IPR” means any and all now known or hereafter existing (a) rights associated with works of authorship and all modifications and derivative works thereto, including copyrights, mask work rights, and moral rights, (b) trademark or service mark rights, (c) trade secret rights, know-how, (d) patents, patent rights, and industrial property rights, (e) layout design rights, design rights, (f) trade and business names, domain names, database rights, rental rights, and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered), and (g) all registrations, applications for registration, renewals, extensions, divisions, improvements, reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world.

“Principal” means the contracting party to Keyrock.

“Principal’s Content” means all information, data, algorithms, texts, software, images, sounds, or, without being limited thereto, any other materials provided by the Principal to Keyrock for the execution of this Agreement. The following definitions apply to all terms and phrases used with a capital letter in the Agreement unless the context unequivocally demands otherwise.

“Agreement” means the relevant Services Agreement, including its Schedules and later amendments, the then-current version of these Terms and Conditions, and the Keyrock Privacy Notice.

“Confidential Information” means any information that is not otherwise in the public domain that is acquired or received by either Party in its performance of or in connection with this Agreement, regardless of whether specifically identified as “confidential” or not and regardless of whether such disclosure was made prior to or after the Effective Date of this Agreement, directly or indirectly, orally, in writing (by any means: written, graphic, electronic, etc.) and will include, without limitation, the intellectual property, the know-how, trade secrets, methods, processes, procedures, plans, client lists, business plans, assets, revenues, strategies and results of either Party.

“CRS” means the Common Reporting Standard. CRS is a global standard for the automatic exchange of financial account information. It requires financial institutions to report accounts held directly or indirectly by foreign tax residents to their local tax authority and requires tax authorities to exchange the account information with other public bodies.

“Effective Date” means the signing date of the relevant Services Agreement.

“FATCA” means the Foreign Account Tax Compliance Act. FATCA is a US legislation and is intended to increase transparency for the US Internal Revenue Service (IRS) with respect to US persons who may be investing and earning income through a non-US institution.

“Force Majeure” means any failure or delay in the performance of any obligation under this Agreement by either Party where the failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such Party. These causes will include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, pandemic outbreaks, war or civil disturbance, strikes or other labor unrests, embargoes, and other governmental actions or regulations that would prohibit either Party from performing any of its obligations hereunder, delays in transportation, inaccessibility of the Exchanges and inability to obtain necessary labor and supplies or facilities.

“Intellectual Property Rights” or “IPR” means any and all now known or hereafter existing (a) rights associated with works of authorship and all modifications and derivative works thereto, including copyrights, mask work rights, and moral rights, (b) trademark or service mark rights, (c) trade secret rights, know-how, (d) patents, patent rights, and industrial property rights, (e) layout design rights, design rights, (f) trade and business names, domain names, database rights, rental rights and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered), and (g) all registrations, applications for registration, renewals, extensions, divisions, improvements, reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world. Version February 2020 3

“Principal” means the contracting party to Keyrock.

“Principal’s Content” means all information, data, algorithms, texts, software, images, sounds or, without being limited thereto, any other materials provided by the Principal to Keyrock for the execution of this Agreement.

 

3. OWNERSHIP AND LICENSE GRANT

3.1. All Intellectual Property Rights will vest in their originator absolutely and nothing in this Agreement will be construed as a transfer of ownership of any of the Intellectual Property Rights of one Party to the other Party.

3.2. Principal warrants that it is able to grant to, and hereby grants, Keyrock for the duration of the Agreement, a non-exclusive, worldwide, royalty-free license to use Principal’s Intellectual Property, without limitation, to the extent necessary for Keyrock to perform its obligations under the Agreement. As an exception, components of the Principal’s Content which have been licensed to the Principal under an open source license will be owned by the originator and licensed to Keyrock under the applicable open source license. Principal will indemnify Keyrock and keep Keyrock at all times fully and effectively indemnified against any breach of this article.

 

4. CONFIDENTIALITY AND NONDISCLOSURE

Neither Party will use the other Party’s Confidential Information except as reasonably required for the performance of this Agreement.  Each Party will hold in confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its Sub-Agents, Affiliates or Related Persons who are bound by confidentiality obligations and who need to know the same to perform such Party’s obligations hereunder. The confidentiality obligations set forth in this article will survive the termination or expiration of this Agreement.

4.2.      Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each Party will, upon the request of the disclosing Party, either: (i) return all of such Confidential Information of the disclosing Party and all copies thereof in the receiving Party’s possession or control to the disclosing Party, or (ii) destroy all Confidential Information and all copies thereof in the receiving Party’s possession or control.  The receiving Party will then, at the request of the disclosing Party, certify in writing that no copies have been retained by the receiving Party, its employees, or agents.

4.3.      In case a Party is involved in legal action that demands or requires disclosure of the other Party’s Confidential Information, such Party will give prompt notice to the other Party, if legally permissible, to enable the relevant Party to challenge such demand.

 

5. PRINCIPAL ACKNOWLEDGEMENTS

The Principal agrees to provide any information and documents reasonably required by Keyrock to comply with any applicable anti-money laundering or counter-terrorism financing laws, including any applicable laws imposing “know your customer” or other identification checks or procedures that Keyrock is required to comply with in respect of this Agreement (AML/CTF Laws).

5.2.      The Principal confirms that it has been made aware of the risks involved in trading assets, including cryptocurrencies and has read and understood the risks as set out throughout the Agreement. The Principal confirms that it has been provided with all other relevant information relating to its appreciation and assumption of the risks involved. The Principal confirms that it has accepted all such risks and provided all of the information required and that all such information provided is complete, accurate, true, and not misleading.

5.3.      The Principal acknowledges that Keyrock will act as its agent and that any interactions between Keyrock and cryptocurrency exchanges in the context of the execution of the strategy may be subject to separate terms and conditions that will apply to Principal.

5.4.      The Principal confirms that it has had the opportunity of asking additional information of Keyrock to this effect as needed.

5.5.      The Principal confirms that it has had the opportunity of seeking advice from its legal counsel, independent accountants and auditors and other experts selected by it in order to assess and accept the risks involved in the trading of Assets as well as the tax and other financial and legal consequences for Principal with respect thereto.

6. DATA PROTECTION

6.1.  The processing of any personal data by Keyrock when performing its obligations under this Agreement, will be subject to the provisions Keyrock Privacy Notice. This Privacy Notice describes how Keyrock, as a data controller, collects, stores and discloses personal data collected from the Principal.

6.2.  Article 6.1. only applies in the absence of the entry into by the Principal and Keyrock of a data processing agreement (the “Data Processing Agreement”). In case the Principal and Keyrock have entered into a Data Processing Agreement, the provisions of this Data Processing Agreement will prevail in case of a conflict with this article 6 or the Keyrock Privacy Notice.

 

7. REPRESENTATIONS AND WARRANTIES

7.1. Each Party hereby represents and warrants to the other Party that:

a) It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;
b) It has all requisite power and authority to execute, deliver and perform this Agreement, and the execution of this Agreement has been duly authorized and all necessary action has been taken by it in connection therewith;
c) This Agreement is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms and conditions, except as enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefore may be brought;
d) Neither the execution and delivery of this Agreement by it, the consummation of the transactions contemplated hereby, nor the fulfillment of the terms and compliance with the provisions hereof, will, directly or indirectly (with or without notice or lapse of time):
(i) Contravene, conflict with, or result in a violation of any provision of its charter or organizational documents, or any resolution adopted by its board of directors, stockholders, or similar governing body;
(ii) Contravene, conflict with, or result in a violation or breach of any provision of, or give any person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any agreement to which it is a party; or
(iii) Require the consent, approval, or authorization of, or registration or filing with, any governmental agency or any other person.

7.2 The Principal further represents and warrants to Keyrock that:

a) it is an experienced Principal with sufficient knowledge of the financial markets and other relevant markets; and
b) when Principal provides Content to Keyrock for the execution of the Agreement, the Principal acknowledges that he is fully and solely responsible for such Principal’s Content and guarantees that the supplied Principal’s Content does not violate any laws or regulations or third-party rights, including any Intellectual Property Rights. In the event of a third party claim on account of any violation by the Principal of the foregoing, the Principal will indemnify and hold harmless Keyrock from any actions brought by such third parties and losses resulting from any breach of this article 7.2.

 

8. LIMITATION OF LIABILITY

8.1.  Neither Keyrock nor any of its directors, officers, agents or employees will be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, in the absence of its or their own gross negligence or willful misconduct.

8.2.  Keyrock is not required to take any action which exposes it to liability, which is contrary to this Agreement or to applicable law or which could result in Keyrock incurring any costs and/or expenses for any of which, in its reasonable opinion, it is not indemnified.

8.3.  In no event will Keyrock be liable for any indirect, consequential or exemplary damages, including, without limitation, loss of profits incurred by the principal, its agents, representatives or any other third party, whether in an action in contract or tort or equity or based on a warranty, in connection with or under this Agreement or otherwise in connection with the performance of this Agreement and the services provided herein, even if Keyrock has been advised of the possibility of such damages.

 

9. TAXES

9.1.  Each of the Parties hereto are independent and will be solely responsible for the payment of any taxes, levies, charges and/or any other similar amounts payable on the revenues and/or benefits they receive as a result of this Agreement.  Neither Party has made a representation or warranty to the other with respect to such revenues and/or benefits nor their tax treatment by any relevant authority.

9.2.  Principal may, from time to time be required to provide further information and/or documentation in order to comply with FATCA/CRS rules. Principal agrees:

(i) to provide such information and/or documentation related to FATCA/CRS requirements;

(ii) to notify Keyrock within thirty (30) calendar days of any change that affects its tax status;

(iii) that in case it does not provide any such requested, information and/or documentation certification in a timely manner, as applicable, or if such certification, information and/or documentation is incorrect or incomplete, payments to Principal may be subject to FATCA Withholding and Keyrock may deduct or retain from amounts due to Principal, sufficient amounts to indemnify Keyrock from and against any and all withholding taxes, interest, penalties and other losses or liabilities suffered by any such person on account of Principal’s failure to duly provide any requested certification, information and/or documentation or resulting from such person’s reliance on any such certification, information and/or documentation provided by Principal;

(iv) that Keyrock may be legally obligated to pass on the information to tax authorities.

10. MISCELLANEOUS

10.1.    Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

10.2. No Agency. No joint venture, partnership, employment, or agency relationship exists between the Principal and Keyrock as a result of this Agreement or use of the Service.

10.3. No Waiver. The failure of a Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that Party in writing.

10.4. Assignment. This Agreement may not be assigned by the Principal without the prior written approval of Keyrock but may be assigned by Keyrock to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Keyrock assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this article will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.

10.5. Survival of termination. The provisions contained in articles 3, 4, 8, 9, and 11 will survive termination of this Agreement and remain in effect for an undetermined period of time.

10.6.    Entire Agreement. This Agreement comprises the entire agreement between Keyrock and Principal and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be  binding unless in writing and signed by an authorized representative of each Party.

 

11. RISKS

Any Principal contracting with Keyrock acknowledges and agrees that the trading and exchange of digital assets (including but not limited to: cryptocurrencies, digital tokens, virtual goods, any other form of digital representation of any asset, together “Digital Assets”) carry inherent risks which can lead to total or partial loss to the Principal. The risks of loss includes, but are not limited to, losses arising from: theft, hacking, unauthorized access, system failures, exchange failures, government or law enforcement seizure, insolvency, or any other related risks associated with the temporary or permanent loss or misappropriation of Digital Assets. Any losses arising from the risks under this Clause 11, shall be solely borne by the Principal.

11.1 Risks associated with trading and holding assets

Prices can and do fluctuate on any given day. Due to such price fluctuations, Digital Assets may increase in value or lose value at any given moment, or may even become worthless. That is an inherent risk of buying, selling, trading or holding anything on a market. Digital Asset trading is especially susceptible to bubbles or loss of confidence, which could collapse demand relative to supply. For example, confidence might collapse because of unexpected changes imposed by the software developers,  government policy, the creation of competing currencies or a deflationary or inflationary spiral. Confidence might also collapse because of technical problems such as in the event the anonymity of the system is compromised, if money is lost or stolen or if hackers or governments are able to prevent any transactions from settling.

11.2 Trading Strategies Risk 

All the strategies of Keyrock focus on market neutrality and the maximum mitigation of market risks. Due to market anomalies, unfair competition, operational anomalies (example: API downtimes or exchanges closing operations without prior notice) or simply statistical anomalies, the Strategies cannot be generated with a 100% certainty of positive result or the conservation of your value.

11.3 Operational Risk 

The security of assets deposited with Keyrock is crucial to Keyrock. Therefore Keyrock takes a range of measures to ensure security. For instance, the distribution of the deposited assets on many Digital Asset exchanges. Keyrock does this to diversify the risk of Digital Asset getting lost due to hacks or attacks on a particular exchange. Keyrock draws Principal’s attention to the fact that Digital Asset exchanges may change their trading rules and/or API terms of use. Such a change may have a significant impact on Keyrock’s ability to execute the strategy on a particular exchange.

11.4 Regulatory Risks 

Digital Assets (including cryptographic currencies and tokens) do not have a clear regulatory framework. The position of financial regulation authorities as well as governments around the world is unclear. Therefore there is a risk associated to potential bans from governments, changes in taxation law, special rulings from the financial regulation authority and in general any regulation that could affect the use of any Digital Assets (including cryptocurrencies and crypto tokens).

To the maximum extent permitted by applicable laws, Keyrock, its officers, directors, employees, agents, contractors and affiliates, disclaim any liability arising out of or related to any losses incurred by the Principal as set-out under this Clause 11.

12. DISCLAIMER

Our services are not available to anyone who is (1) a natural person resident in the United States, (2) a legal entity organized or incorporated under the laws of the United States; (3) estate of which any executor or administrator is a U.S. person; (4) a trust of which any trustee is a U.S. person; (4) an agency or branch of a foreign entity located in the United States; (5) non-discretionary account or similar account held by a dealer or other fiduciary for the benefit or account of a U.S. person; (6) a discretionary account or similar account held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; or (7) with certain exceptions any legal entity formed under the laws of a jurisdiction outside the United States, if the entity was formed by a U.S. person principally for the purpose of investing in securities not registered under the U.S. Securities Act of 1933.