Terms Of Service
The website www.kanberry.com.au and APIs provided to customers (collectively “Platform“) is owned, operated and controlled by Kanberry Pty. Ltd. ABN 85 642 154 809 trading as Kanberry, who along with its associated entities, and each of their directors, affiliates or employees (as appropriate) are referred to Kanberry, “we”, “us” or “our” in these Terms of Use.
Kanberry provides the Services to customers (Customer, you or your), subject to these terms and conditions (Terms).
These Terms govern your use of the Platform and the Kanberry Account and the Services.
By using the Platform, applying for a Kanberry Account or using the Services, you enter into a binding legal agreement between you and Kanberry, and agree to be bound by these Terms.
1. CUSTOMER ELIGIBILITY
1.1 To access the Services and be eligible to hold a Kanberry Account, you must be a company legally incorporated and registered, and have full capacity to enter into, agree to and comply with the Terms.
1.2 Kanberry reserves the right in its absolute discretion to refuse to register a Customer or provide Services to a Customer at any time, and retains the right to ask for further information or to set further requirements that may be reasonably necessary to protect Kanberry’s interests or comply to legal requirements.
2. OPENING AN ACCOUNT
2.1 To open a Kanberry Account, you must provide the requested credentials and documents in order to comply with Kanberry Know Your Customer procedures and AML Policy.
2.2 You can open a Kanberry Account by initiating a sign up through our Platform. After a series of communications with Kanberry authorised officer you will receive an activation approval.
2.3 After successful sign-up, Kanberry will create a Kanberry Account for you to record your holding of fiat currencies and Supported Coins.
2.4 Before you are able to access the Services, Kanberry will verify your Company details and, depending on the Services you wish to access, will require an Eligible Bank Account.
2.5 Kanberry may suspend a Customer’s access to the Platform or a Kanberry Account at any time with a prior notice if we believe, in our sole discretion, that the Customer has breached these Terms or any other applicable laws.
2.6 You are responsible for maintaining the confidentiality of your Kanberry Account information, including credentials such as your password. You are responsible for all Instructions and communications which are initiated via your Kanberry Account and for any resulting changes to your holding of Supported Coins and monies recorded in your Kanberry Account.
2.7 You are to notify Kanberry immediately, by submitting a new request in the Kanberry Support, of any suspected unauthorised use of your Kanberry Account, password or any of your user credentials, or any other breach of security.
3. DEPOSITING FUNDS INTO YOUR KANBERRY ACCOUNT
3.1 You may deposit various Fiat currencies into your Kanberry Account by using an Accepted Deposit Method.
3.2 Deposits and withdrawals made by way of electronic funds transfer or other bank transfer are subject to your bank’s transfer terms and conditions. You acknowledge that Kanberry is also bound by the terms and conditions that apply to Kanberry’s bank account.
3.3 Once the deposited monies are received by Kanberry, the deposited amount, less any fees, will be shown in your Kanberry Account. All currencies that are credited to your Kanberry Account will be held on trust for you in a bank account that is under Kanberry’s name.
3.4 In relation to the operation and maintenance of an account which holds Customer funds, Kanberry must:
(a) Maintain accounts in accordance with any applicable law or standard;
(b) At all times be able to identify each Customer’s assets.
3.5 Your ability to deposit into and withdraw from your Kanberry Account may be regulated by applicable law.
4. CUSTOMER VERIFICATION
4.1 Before you are able to access the Services, Kanberry will verify your Company details in order to comply with Kanberry AML Policy.
4.2 In addition, Kanberry will verify your Company bank account before you are able to transact Coins for Fiat and vice versa.
5. KANBERRY SERVICES
Kanberry provides the following services:
(a) Buying Coins with Fiat (Tokenisation)
(b) Selling Coins for Fiat (Redemption)
6. USING KANBERRY SERVICES
Buying Coins
6.1 To buy Coins, you must first create a purchase Instruction, and specify the monetary value of Coins you wish to purchase (Specified Fiat Amount).
6.2 After receiving your Instruction, Kanberry will provide you with a Quote for the number of Coins that may be purchased for the Specified Fiat Amount. The Quote will be based on the current exchange rate of the Coin you wish to purchase after deducting any fees payable.
6.3 A Quote is valid for the Quote Period.
6.4 To proceed with the Instruction, you must:
(a) Accept the Quote, and
(b) Deposit the Specified Fiat Amount via an Accepted Deposit Method in accordance with instructions specified by Kanberry.
6.5 Once Kanberry receives your acceptance and deposit of the Specified Fiat Amount, Kanberry will complete the Instruction and credit the purchased Coins to your Kanberry Account.
6.6 You can view your account balance at any time via your Kanberry Account virtual office.
Selling Coins
6.7 To sell Coins for Fiat, you must first create a sell Instruction via your Kanberry Account, which specifies the Coin you wish to sell.
6.8 After receiving your Instruction Kanberry will provide you with a Quote for the amount of Coin you wish to sell. The Quote will be based on the current exchange rate of the Coin you wish to sell after deducting any fees payable.
6.9 A Quote is valid for the Quote Period.
6.10 To proceed with the Instruction, you must accept the Quote.
6.11 Upon your acceptance of the Quote Kanberry will:
(a) Debit the quoted amount of Coin from your Kanberry Account, and
(b) Credit the Specified Amount in Fiat, less any fees payable, to your Kanberry Account.
General terms regarding Services
6.12 The provision by Kanberry of the Services is subject to your Company residing in or transacting from an eligible country.
6.13 Eligible countries are all countries that are outside of the following list: Afghanistan, Botswana, Burundi, Cameroon, Chad, The Democratic Republic of the Congo, Cote D’Ivoire, Cuba, Eritrea, Gambia, Ghana, Guinea, Haiti, Iran, Iraq, North Korea, Kyrgyzstan, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Mali, Myanmar, Niger, Somalia, Sudan, Syria, Uganda, Yemen, Zimbabwe
6.14 Kanberry doesn’t accept customers residing in or transacting from United States of America.
6.15 To access any Service requiring an exchange of Fiat, you will be required to have an eligible bank account.
6.16 By giving an Instruction, you agree to be bound by these Terms, which will govern all aspects of the provision of Services.
6.17 An Instruction received by Kanberry will be treated as validly submitted and binding on you if it was initiated via your Kanberry Account using the Kanberry Account credentials, even if you did not personally create the Instruction. Kanberry will not act on any Instruction that it believes, in its sole discretion, has not been validly submitted.
6.18 Usual timeframes in relation to each Service are limited by one working day excluding Australian public holidays.
6.19 Only Supported Coins are able to be deposited and withdrawn from your Kanberry Account.
7. TRANSACTION LIMITS
7.1 Kanberry may, based on an agreement with a customer, implement a transaction minimum and/or a transaction maximum.
7.2 Customer may request an increased limit, but Kanberry has absolute discretion concerning limits.
8. PAYMENT METHODS
8.1 Kanberry may accept payment via any Accepted Deposit Method.
8.2 Kanberry reserves the right to require Customers to provide evidence of deposits made as an additional verification step.
9. FEES
9.1 Kanberry does not charge a fee for opening or holding a Kanberry Account.
9.2 Kanberry charges fees in respect of each Service. Any fees payable on a transaction will be agreed between Kanberry and Customer subject to an individual bilateral agreement.
10. USE OF THE PLATFORM GENERALLY
10.1 You will not, and you will not allow any other person to:
(a) Use or access the Platform in a way that infringes the intellectual property rights or other rights of any person
(b) Use any method or process to consolidate or combine the Platform with any other content, data, information, images or material
(c) Do anything which will or may damage, disrupt access to or interfere for any period of time with the proper operation of the Platform
(d) Post, distribute or send any ‘spamming’ material or any other form of bulk communication on or using the Platform
(e) Impersonate any person or entity
(f) Otherwise use the Platform for any purpose that may harm the reputation of Kanberry.
10.2 You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction or data harvesting) on, or in relation to, the Platform.
10.3 You must not use any anonymous network or protocol to access the Platform or our Services. You will not access the Platform by any means other than the interfaces (APIs) we provide for doing so.
11. NO FINANCIAL, TAXATION OR LEGAL ADVICE PROVIDED
11.1 Nothing in the Platform is intended to be, or should be taken as, financial, legal, taxation or accounting advice.
12. RISK INVOLVED
12.1 You acknowledge and agree that:
(a) Coins are not recognised legal tender in Australia and many other countries, and that digital currency is not currently regulated by any central institution and may be subject to extreme price volatility
(b) Dealing in Coins carries a high level of risk, could result in a loss of all your invested funds
(c) You are responsible to protect your Coins, any wallet that you direct us to transfer Coins to, computer, bank account, address and personal data against any theft, fraud or illegal activity
(d) All completed payment Instructions are irreversible, and
(e) You have had the opportunity to obtain independent legal, financial and taxation advice about the risks associated with buying and holding Coins.
13. PERSONAL INFORMATION AND ANTI-MONEY LAUNDERING
13.1 Kanberry will only collect Personal Information of Customer directors, beneficial owners and officers which is necessary to provide you with the Services. Kanberry will collect and manage Customer Personal Information in accordance with our Privacy Policy
13.2 Kanberry will use reasonable precautions to maintain the security and confidentiality of Customer Personal Information and data. However, given such Personal Information and data is provided and stored on the Internet, you acknowledge and agree that Kanberry cannot guarantee the security or confidentiality of Customer Personal Information and data.
13.3 You accept the risk of a third party receiving Customer Personal Information and data, and specifically release and indemnify Kanberry from any claim arising out of a third party intercepting, accessing, monitoring or receiving any communication between you and Kanberry.
14. THIRD PARTY LINKS AND PROVIDERS
14.1 Where the Platform contains links to other websites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
15. NO GUARANTEE
15.1 Kanberry takes reasonable steps to ensure we can deliver our Services effectively, reliably and securely. However, we do not warrant, guarantee or represent that:
(a) The Platform or Services, or any information or other material accessible through our Platform, will be uninterrupted, timely, reliable, secure, error-free or is free of any virus, worm, trojan or other harmful component
(c) The Selected Coin Issuers used by Kanberry will remain stable, reliable, secure, solvent or error-free
(d) The Platform or Kanberry’s computer systems or Selected Coin Issuers are safe from hacking
(e) Your use of the Platform and the provision of our Services will not infringe the rights of any third party, or
(f) There will be any continuation of the agreement formed under these Terms.
15.2 In addition, we warn you that either one or all of our Services may be discontinued at our sole and absolute discretion, and that our Platform may be inaccessible at times due to:
(a) Down time and maintenance
(b) Outages to the Internet, networks or servers
(c) Equipment failure, including the failure of third party systems, or
(d) A Force Majeure Event.
16. LIMITATION OF LIABILITY AND INDEMNITY
16.1 Despite anything else in these Terms:
(a) If an applicable law imposes a liability on Kanberry which cannot be excluded, but permits Kanberry to limit that liability, Kanberry’s liability is limited to the maximum extent permitted by law, and
(b) Nothing in these terms excludes the liability of Kanberry for its fraud or for any other liability which by law cannot be excluded.
16.2 Kanberry is not liable for any damage, loss or cost suffered by a Customer (or any person) as a result of:
(a) You directing us to transfer Coins to an incorrect wallet or other destination
(b) You failing to deposit payment, or having a sufficient Coin balance, for us to process an Instruction
(c) Any delay by a bank or other third party provider
(d) Platform malfunction, breakdown, interruption or other failure, including the Platform being unavailable at any time
(e) Unauthorised use of your Kanberry Account or your account credentials, including an unauthorised Instruction
(f) Any failure or lack of security measures
(g) Any failure of a Selected Coin Issuer
(h) An inability to perform our obligations under these Terms because of factors beyond our control, including because of a Force Majeure Event.
16.3 While Kanberry takes appropriate measures to ensure the Platform and all of Kanberry’s systems are properly secured and protected against attack, it gives no warranty that its security systems are impregnable and you acknowledge that loss of Coins held on your behalf and data referring to or belonging to you may occur and that Kanberry is not liable to compensate you for the loss of any Coins.
16.4 For the avoidance of doubt, reference to “loss of Coins” in clause 15.3 includes any reduction in your Coin balance that is caused by Kanberry in order to compensate Kanberry for loss suffered by it, including but not limited to loss suffered by Kanberry as a result of Kanberry or a Selected Coin Issuer being hacked.
16.5 To the maximum extent permitted by applicable law, Kanberry disclaims all warranties, either express or implied, including but not limited to:
(a) Uninterrupted or continuous availability of our Services, and
(b) Implied warranties of merchantability, fitness for a particular purpose with respect to our Services under these Terms.
16.6 Kanberry will not be liable under any circumstances (including but not limited to any act or omission on our part) for damages arising out of an action under contract, negligence or for any loss or consequential loss including any profits, data, goodwill, reputation, opportunity, goodwill or any business interruption or other pecuniary loss or any incidental damages, punitive damages or exemplary damages whatsoever that result from your use of the Platform, or our provision of the Services, or your inability to use or access the Platform.
16.7 In the case of suspected fraud or other suspicious activities, Kanberry will report all necessary information, including names, addresses and all other requested information, to the relevant authorities dealing with fraud and suspected breaches of the law, including AUSTRAC. You agree that your Kanberry Account may be suspended or frozen at any time by Kanberry or at the request of any competent authority, including but not limited to AUSTRAC investigating a potential fraud or other suspicious activity.
16.8 In addition to the other limitations of liability in these Terms, Kanberry’s aggregate liability in respect of claims based on events arising out of or in connection with a Customer’s use of the Platform, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the greater of either:
(a) The total amount of Supported Coins recorded in the Customer’s Kanberry Account, or
(b) The value of the completed Instructions that are the subject of the claim, less the amount of any Fees that may be payable to Kanberry in respect of such completed Instructions.
16.9 You acknowledge that the value and market acceptance of Coins is not determined by Kanberry, and Kanberry is not liable for any loss or claim arising out a decline in the value of any Coins, or the refusal of any person to accept any Coins.
16.10 You are responsible for any tax liability arising from your Coin holdings or completed Instructions and will indemnify Kanberry where Kanberry is obliged to pay tax on your behalf in respect of any Instruction.
17. INDEMNITY
17.1 You indemnify Kanberry and each of its directors, officers, shareholders, advisers, consultants, agents and contractors (each an Indemnitee) against all liabilities, claims, losses and expenses (Losses) which may be incurred or suffered by the Indemnitees directly or indirectly arising out of the Customer’s failure to maintain sufficient Coin in your Kanberry Account, or failing to comply with these Terms. Losses may include consequential losses and any legal fees incurred in defending or responding to Losses. This indemnity will apply regardless of whether an Instruction was provided in error, but will not apply to the extent that Losses were incurred or suffered by an Indemnitee due to the fraud or wilful default of Kanberry.
17.2 You agree to indemnify Kanberry for any loss we incur due to any party’s unauthorised use of your Kanberry Account or your account credentials.
18. CUSTOMER ACKNOWLEDGEMENTS
18.1 You acknowledge and agree that:
(a) The networks by which transactions occur are located outside of the Platform and are not controlled by Kanberry. Kanberry makes no warranty as to the security of Coins during transactions and will not be liable for the loss or unavailability of any Coin during a transaction
(b) Kanberry does not control the distributed ledger underlying the control and transfer of Coins. Kanberry makes no warranty that transfers will be validly executed and recorded or free from dispute, and
(c) The speeds of Coin transfers are outside Kanberry’s control. Kanberry is not liable for any consequences or failures of Coin or monetary deposits, or withdrawals not being effected in a timely manner.
19. CUSTOMER REPRESENTATIONS
19.1 You represent and warrant that:
(a) You will open and operate your Kanberry Account and use the Platform in accordance with these Terms
(b) being a corporation, you are duly constituted and registered and possess the requisite power to enter into these Terms, and any individual entering into these Terms on your behalf is authorised to do so
(c) You are not using an anonymous network to access the Platform
(d) All information you have provided to us is correct, current and complete at the date provided, and you will promptly notify Kanberry of any changes to such information
(e) You will make ongoing disclosure to Kanberry of any matters that may affect the operation of these Terms, or your ability to comply with them
(f) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation anti-money laundering and counter-terrorism financing laws and rules and any relevant data protection or privacy laws)
(g) Your use of the Platform or submission of Instructions does not infringe the rights of any third party or breach any applicable law
(h) You will not use the Platform for any illegal or improper purpose, including money laundering, tax evasion or the financing of terrorist activities, and
(i) You have regular access to the Internet and consent to Kanberry providing you any information, including notice, via the Platform. We may also contact you by emailing the address you have provided. It is for you to ensure your contact details are current and up to date at all times, and to check for communications and information from us.
20. GOVERNING LAW
The Customer acknowledges and agrees that:
20.1 Your use of the Platform and these Terms and Conditions are governed by the laws of New South Wales; and
20.2 You irrevocably submit to the exclusive jurisdiction of the courts of New South Wales and the New South Wales division of the Federal Court of New South Wales, and the courts of appeal from them
21. DISPUTE RESOLUTION
21.1 If you have a complaint, please convey such a complaint via a contact form on the Platform.
22. TERMINATION
22.1 These Terms are effective until terminated by either you or Kanberry.
22.2 You or Kanberry may terminate the agreement in place between you and Kanberry by virtue of these Terms, and close your Kanberry Account, at any time with 30 Days’ Notice.
22.3 Kanberry may suspend or terminate your access to the Platform and your Kanberry Account at any time where:
(a) Kanberry identifies or reasonably suspects that you have breached the Agreement or any other aspect of these Terms, including (without limitation) by failing to comply with applicable laws
(b) Kanberry receives a request from a law enforcement or other government agency to do so, or
22.4 Subject to complying with the law, Kanberry will endeavour to notify you in advance of such suspension or termination or if that is not practical, as soon as possible after.
22.5 In the event of termination, you are no longer authorised to access or use your Kanberry Account or the Platform. However, all restrictions imposed on you and all Kanberry disclaimers and limitations of liability set out in these Terms will survive.
22.6 Pending Instructions entered prior to the suspension or termination will be refused and not carried out. Any deposit received in respect of pending Instructions will be refunded to you.
23. VARIATION
23.1 Kanberry may vary these Terms by providing notice at any time. Customers will be taken to have accepted any changes by continuing to use the Platform and Services after notice is provided.
24. ACCOUNT CLOSURE
24.1 Subject to these Terms and applicable laws, within 60 days of a Customer’s Kanberry Account being closed, Kanberry must, in respect of any Supported Coins recorded in the Kanberry Account, transfer the Supported Coins to you in accordance with your instructions.
24.2 If we do not receive any valid instructions within the 60 day period stated in clause 24.1, Kanberry will hold the Supported Coins on your behalf for a further 30 days (to a total of 90 days). If, after the 90 days have passed and no valid instruction has been received by Kanberry in respect of your Coins, including your Supported Coins, rights in all Coins will pass to Kanberry.
25. GENERAL TERMS
26. DEFINED TERMS
Accepted Deposit Methods means deposit methods accepted by Kanberry and includes cash deposits at eligible bank branches, Electronic Funds Transfer and other Bank transfer methods.
Coin means a cryptographic unique software Coin, or any part of, or interest in, a Coin, including Coin and altcoins.
Kanberry Account means the Customer’s account maintained by Kanberry, which allows (among other things) the Customer to record, buy/sell and to receive and withdraw Supported Coins.
Fiat means Australian Dollars and other currencies.
Force Majeure Event means events or causes including but not limited to, the following: an act of God, unavoidable accident of navigation, war (whether declared or not), sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone, earthquake, landslide, explosion, power or water shortage, failure of a transmission or communication network, epidemic, quarantine, strike or other labour difficulty or expropriation, restriction, prohibition, law, regulation, decree or other legally enforceable order of a government agency, breakage or accident, change of International, State or Commonwealth law or regulation or any damage of Kanberry’s machinery or systems, unless occurring as a result of an act, omission, default or negligence of the Customer or Kanberry.
Instruction means any instruction, including the creation of a purchase order or sell order, given by a Customer to Kanberry via the Platform.
Nominated Customer Bank Account means the Australian or overseas bank account nominated by the Customer for Kanberry to deposit amounts for Coins sold, which account must be in the name of the Customer.
Personal Information has the meaning given by the Privacy Act 1988.
Privacy Policy means the Kanberry Privacy Policy accessible on the Platform.
Quote means a quote from Kanberry to the Customer for the number of Coins the Customer would need to supply or acquire to execute an Instruction in exchange either for a Specified Fiat Amount or for a number of other Coins, based on an exchange rate for the relevant Coins, and including any fees payable by the Customer in respect of the Instruction.
Quote Period means 1 working day unless otherwise mentioned on the Platform.
Selected Coin Issuer means selected international Coin Issuers partnering with Kanberry.
Services has the meaning given to it in clause 4.
Specified Fiat Amount means the monetary value for which you wish to purchase Coins, or the monetary value you wish to realise by selling Coins.
Supported Coins means Coins that Kanberry is able to support on its Platform and record in your Customer Account, and includes, but not limited to, USDT, USDC and BUSD. This list may vary from time to time. Coins that are financial products within the meaning of the Corporations Act 2001 are not Supported Coins.