Terms of Service

Last updated: November 16, 2023

These Terms of Service (“Terms”) apply to your access and use of the Payward Financial, Inc.


(“Kraken Financial” or “we”, “us” or “our”) website, custody.kraken.com, along with the features,
functionalities, applications, browser extensions and other services available through our
website, platform and your use of our products and services (collectively, our “Services”).
These Terms refer to the individual or entity using the Service (including any component of the
Services) as “you” or “your”.


PLEASE READ THESE TERMS OF SERVICE CAREFULLY BY ACCESSING OR USING
OUR SERVICES IN ANY WAY, YOU AGREE TO BE LEGALLY BOUND BY:

  • THESE TERMS,
  • THE E-SIGN CONSENT FOR DIGITAL ACCOUNT OPENING AND TERMS & CONDITIONS FOR ELECTRONIC STATEMENTS AND OTHER COMMUNICATIONS,
  • ANY ADDITIONAL TERMS AND CONDITIONS, AGREEMENTS, NOTICES, OR POLICIES APPLICABLE TO YOUR USE OF THE SERVICES, IN EACH CASE, AS ENTERED INTO BETWEEN YOU AND US, AS APPLICABLE (COLLECTIVELY, THE“AGREEMENTS”).

IN THE EVENT THAT THERE IS ANY CONFLICT BETWEEN
THESE TERMS AND THE AGREEMENTS, THE AGREEMENTS SHALL CONTROL. IN
THE EVENT THAT THERE IS ANY CONFLICT BETWEEN THESE TERMS AND THE
TERMS OF SERVICE BETWEEN YOU AND PAYWARD, INC. (AVAILABLE AT
WWW.KRAKEN.COM/LEGAL, THE “KRAKEN EXCHANGE TERMS”), THE KRAKEN
EXCHANGE TERMS SHALL CONTROL.

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS
TO RESOLVE DISPUTES, RATHER THAN COURT, JURY TRIALS OR
PARTICIPATION IN A CLASS ACTION. THESE TERMS ALSO LIMIT THE
REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE
CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS
BEFORE YOU ACCESS OR USE OUR SERVICES.

  1. Digital Assets and the Services.

    1.  Digital Asset Protocols.

      We do not own or control the underlying software protocols of digital asset networks that govern the operation of digital assets. In general, the underlying protocols are open source, and anyone can use, copy, modify or distribute them. We are not responsible for the operation of the underlying network protocols, and we make no guarantees regarding their security, functionality or availability.

    2. Passwords and Security.

      You are responsible for maintaining adequate security and control of any and all user IDs, passwords, private keys, personal identification numbers (PINs), and any other codes that you use to access the Services. You will prevent unauthorized access to or use of the Services using your account credentials, and notify us promptly of any such unauthorized access or use. You must keep your user ID, passwords and any other account credentials confidential and not authorize any third party to access or use the Services on your behalf, unless we provide an approved mechanism for such use. You will notify us of any security breach of your account, system or network as soon as possible. You will be responsible, and we will have no liability, for all activity that takes place with your account accessed using your account credentials, whether or not authorized by you.

    3. Identity Authentication.

      You must be at least 18 years old, or such higher age required by applicable law, to form a binding contract. You will provide Kraken F and its affiliates with accurate, current, and complete information about yourself as prompted by the registration process or as Kraken Financial may, from time to time request, and keep such information updated. You authorize Kraken Financial to make such inquiries that it considers necessary to validate your identity and you agree that Kraken Financial may do so using third party service providers.

    4. Third Party Services.

      In connection with your use of the Services, you may be made aware of or offered third party service, program, website, product, content, offers and promotions provided by third parties (individually and collectively, “Third Party Services”). We may make Third Party Services available to you. However, our inclusion or promotion of Third Party Services does not reflect a sponsorship, endorsement, approval, investigation, verification, certification or monitoring of such Third Party Services by Kraken Financial. Your acquisition of Third Party Services, and any exchange of data between you and any Third Party Services provider, is solely between you and such provider. Kraken Financial does not warrant Third Party Services in any way. Under no circumstances will we have any liability for Third Party Services. Use Third Party Services at your own risk, and under terms and conditions between you and the provider of Third Party Services, which are different from the provisions of these Terms.

    5. Risks.

      You acknowledge that using digital assets, their networks and protocols, involves serious risks. It is your duty to learn and understand all risks involved with digital assets, their protocols and networks. For example, the value of digital assets can change rapidly, increase or decrease unexpectedly. Kraken Financial has no responsibility to alert you to these risks. Kraken Financial has no control over, and makes no representations regarding the value of digital assets, or the security of their networks or protocols.

  2. Use of the Services.

    1. Your Privacy.

      Please review our privacy notice located at custody.kraken.com/legal/privacy (“Privacy Notice”) to understand our commitments in maintaining your privacy. You agree to the collection, use and disclosure of information as described in the Privacy Notice.

    2. Suspension and Termination.

      We reserve the right to temporarily suspend or terminate your access to any Service at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Service for:

      • the actual or suspected violation of these Terms;

      • the use of the Service in a manner that may cause Kraken Financial to have legal liability or disrupt others’ use of the Service

      • scheduled downtime and recurring downtime, or unplanned technical problems and outages.

    3. Unacceptable Use.

      When accessing or using the Services, you agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while using our Services. Without limiting the generality of the foregoing, you agree that you will not:

      • use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services, or that could damage, disable, overburden or impair the functioning of our Services in any manner;

      • use our Services to pay for, support or otherwise engage in any illegal gambling activities; fraud; money-laundering; terrorist activities; or other illegal activities;

      • use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access our Services or to extract data

      • use or attempt to use another user's account without authorization

      • attempt to circumvent any content filtering techniques we employ, or attempt to access any Services that you are not authorized to access

      • develop any third-party applications that interact with our Services without our prior written consent

      • provide false, inaccurate, or misleading information

      • encourage or induce any third party to engage in any of the activities prohibited under this Section.

    4. License and Restrictions.

      The Services and all elements thereof, including, without limitation, their “look and feel”, the Kraken Financial logos and all designs, text, graphics, pictures, information, data, software, sound files, other files, content and materials, and the selection and arrangement thereof (collectively, “Kraken Financial Materials”) are the property of Kraken Financial or our licensors or suppliers and are protected by U.S. and international intellectual property rights laws. Subject to your compliance at all times with these Terms, we hereby grant you a limited, revocable, nonexclusive, non-transferable, and non-sublicensable license to access and use, solely on the Services, the Kraken Financial Materials for your personal or internal business use of the Services. Such license is subject to these Terms and does not permit

      •  any resale of the Kraken Financial Materials;

      • the distribution, public performance or public display of any Kraken Financial Materials

      • modifying or otherwise making any derivative uses of the Kraken Financial Materials, or any portion thereof

      • any use of the Kraken Financial Materials other than for their intended purposes. The license granted under this Section will automatically terminate if we suspend or terminate your access to the Services. All rights not expressly granted to you under these Terms are reserved to Kraken Financial or our applicable licensor(s) or supplier(s), as applicable.

    5. Trademark.

      Any Kraken Financial product or service names, logos or slogans that may appear on our Services are trademarks of Kraken Financial or our licensors, in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any trademark, product or service name of Kraken Financial without our prior written permission, including without limitation any metatags or other "hidden text" utilizing any trademark, product or service name of Kraken Financial. In addition, the look and feel of our Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Kraken Financial and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned or displayed through our Services are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

    6. Feedback.

      We will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas or other information or materials regarding Kraken Financial or our Services that you provide, whether by email or otherwise (“Feedback”). Any Feedback you submit is non-confidential and shall become the sole property of Kraken Financial. We will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Do not send us Feedback if you expect to be paid or want to continue to own or claim rights in them.

  3. Disclaimer of Warranties.

    1. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THESE TERMS, OUR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO OUR SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. YOU ACKNOWLEDGE THAT INFORMATION YOU STORE OR TRANSFER THROUGH OUR SERVICES MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS INCLUDING THIRD PARTY DDOS ATTACKS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE OUR CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH OUR SERVICES.

      Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.

  4. Indemnity.

    1. You agree to defend, indemnify and hold harmless Kraken Financial (and each of our officers, directors, members, employees, agents and affiliates) from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to: 

      • your use of, or conduct in connection with, our Services

      • any Feedback you provide

      • your violation of these Terms

      • your violation of any rights of any other person or entity.

    2. If you are obligated to indemnify us, we will have the right, in our sole discretion, to control any action or proceeding and determine whether we wish to settle it.

  5. Dispute Resolution.

    1.  Arbitration Rules and Forum.

      YOU AGREE THAT ALL CONTROVERSIES ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES (“DISPUTES”), WHETHER ARISING PRIOR, ON, OR SUBSEQUENT TO THE EFFECTIVE DATE, SHALL BE ARBITRATED AS FOLLOWS:

      The parties irrevocably agree to submit all Disputes between them to binding arbitration conducted under the Commercial Dispute Resolution Procedures of the American Arbitration Association (the “AAA”), including the Optional Procedures for Large Complex Commercial Disputes. The place and location of the arbitration shall be in Cheyenne, Wyoming. All arbitration proceedings shall be closed to the public and confidential and all related records shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The arbitration shall be conducted before a single arbitrator selected jointly by the parties. The arbitrator shall have experience with custodial and trust matters under Wyoming law. If the parties are unable to agree upon an arbitrator, then the AAA shall choose the arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitrator shall be bound to the strict interpretation and observation of the terms of this Agreement and shall be specifically empowered to grant injunctions and/or specific performance and to allocate between the parties the costs of arbitration, as well as reasonable attorneys’ fees and costs, in such equitable manner as the arbitrator may determine. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations. Notwithstanding the foregoing, either party shall have the right, without waiving any right or remedy available to such party under this Agreement or otherwise, to seek and obtain from any court of competent jurisdiction any interim or provisional relief that is necessary or desirable to protect the rights or property of such party, pending the selection of the arbitrator hereunder or pending the arbitrator’s determination of any dispute, controversy or claim hereunder.

    2. Waiver of jury trial.

      YOU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.

      You and we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration clause, except as specified in Section 5.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration clause as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

    3. Waiver of class or other non-individualized relief.

      ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION CLAUSE MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER.

      If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the courts of the State of Wyoming. All other disputes, claims, or requests for relief shall be arbitrated.

  6. Other Terms

    1. Choice of Law.

      These Terms are governed by and are to be construed in accordance with the law of the State of Wyoming, without giving effect to the conflicts of law rules of that state.

    2. Entire Agreement

      Order of Precedence. These Terms, the Agreements, the Privacy Policy and other terms, policies and guidelines incorporated by reference, constitute the entire agreement between you and Kraken Financial and govern your use of the Services. These Terms do not alter the terms or conditions of any other electronic or written agreement you may have with Kraken Financial for the Services or for any other Kraken Financial product or service or otherwise. In the event of any conflict between these Terms and any other Agreement you may have with Kraken Financial, the terms of that other Agreement will control.

    3.  Amendment.

      We reserve the right to make changes or modifications to these Terms from time to time, in our sole discretion, by posting the amended Terms via our website and mobile applications or by communicating these changes through any written or other contact method we have established with you and updating the “Last Updated” date at the top of these Terms. The amended Terms will be effective immediately thereafter and your use of the Services following the date on which such amended Terms are published will constitute consent to such amendments.

    4. Waiver.

      Our failure or delay in exercising any right, power or privilege under these Terms shall not operate as a waiver thereof.

    5. Severability.

      The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.

    6. Force Majeure Events.

      Kraken Financial shall not be liable for:

      • any inaccuracy, error, delay in, or omission of

        • any information, 

        • the transmission or delivery of information;

      • any loss or damage arising from any event beyond Kraken Financial’s reasonable control, including but not limited to 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 or any other cause beyond Kraken Financial’s reasonable control (each, a “Force Majeure Event”).

    7. Assignment.

      You may not assign or transfer any of your rights or obligations under these Terms without prior written consent from Kraken Financial, including by operation of law or in connection with any change of control. Kraken Financial may assignor transfer any or all of its rights under these Terms, in whole or in part, without obtaining your consent or approval.

    8. Survival.

      The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Termination of these Terms shall not be construed to waive or release any claim that a party was entitled to assert at the time of such termination.

    9. Savings Clause.

      If any provision of these Terms is found by a court of competent jurisdiction or arbitrator to be invalid or unenforceable, the parties agree that the court or arbitrator should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. If the court or arbitrator cannot do so, then the parties agree that the court or arbitrator should strike the invalid or unenforceable provisions, and that the remaining provisions be given their full force and effect.

    10. Company Use.

      If you are using the Service on behalf of an organization, you are agreeing to these Terms for that organization and representing to Kraken Financial that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization). Nevertheless, each individual that uses the Service or accepts these Terms on behalf of an organization agrees that the permissions given to Kraken Financial under these Terms, and the restrictions and limitations to the rights of persons and entities using the Service, apply to each such individual. You may use the Service only in compliance with these Terms and only if you have the power to form a contract with Kraken Financial and are not barred under any applicable laws from doing so.

    11. Interpretation.

      The word “or” as used in these Terms has the meaning equivalent to “and/or”. The terms ‘include’ and ‘including’ will be deemed to be immediately followed by the phrase “without limitation”. These Terms do not confer any rights or benefits to any third party beneficiaries. The headings appearing at the beginning of sections have been inserted for identification and reference purposes only and must not be used to construe or interpret these Terms. The word “will” expresses an obligation equivalent to “shall”. These Terms will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of these Terms. We each agree to contract in the English language. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.

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