Back-Up and Disaster Recovery Standard Terms and Conditions

1. Introduction

These terms and conditions are applicable to the back-up and disaster recovery service provided by Coincover pursuant to an order form entered between the party named in the order form as the Licensee and Coincover. If there is any conflict or ambiguity between the terms of the order form relating to the back-up and disaster recovery service and these terms and conditions, these terms and conditions shall take priority.

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2. Interpretation

2.1 Definitions:

Access Control List or ACL:

The list of Access Control Members, which list may only be amended in accordance with clause 15.

Access Control Members:

The individuals authorised by the Licensee to instruct a key recovery by Coincover.

Affiliate:

Means any entity that directly or indirectly controls, is controlled by, is under common control with or is otherwise in the same group of entities as a party to this agreement, and the term “control” shall mean the beneficial ownership of more than 50% of the issued capital of a company or the legal power to direct or cause the direction of the general management of the company, and “controls and “controlled” shall be interpreted accordingly.

Business Day:

A day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.

Charges:

Any initial set-up fee and the charges payable by the Licensee to Coincover for the Services, as more particularly described in the Order Form.

Coincover:

Digital Asset Services Ltd, a company incorporated and registered in England and Wales with company number 11356137.

Commencement Date:

The date of the last signature on the Order Form.

Contract:

Those parts of the Order Form which related to the Services together with these terms and conditions.

Data Protection Legislation:

All laws applicable to the processing of personal data under the Contract including the Data Protection Act 2018, the General Protection Regulation (EU) 2016/679 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003 No. 2426), and the terms “controller” and “personal data” shall have the meanings given to them in the Data Protection Legislation.

Deliverables:

Any documents, products and materials developed for the Licensee by Coincover in connection with the provision of the Services.

Initial Term:

The term specified as the initial term in the Order Form.

Intellectual Property Rights:

Patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use (and protect the confidentiality of) confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Licensee:

The party named in the Order Form as the Licensee.

Licensee Materials:

Any materials, equipment and tools, drawings, specifications, and data supplied by the Licensee to Coincover.

Order Form:

The order form incorporating these terms and conditions entered between the Licensee and Coincover.

Platform:

The platform provider identified in the Order Form who provides wallet or custodial services to the Licensee.

Renewal Term:

Has the meaning given to it in clause 3.2.

Service Activation Requirements:

The requirements to be satisfied by the Licensee as a condition to provision of the Services by Coincover, as more particularly described in paragraph 1 of the Service Schedule.

Services:

The services to be provided to the Licensee by Coincover under the Contract, as more particularly described in the Service Schedule.

Service Schedule:

The schedule annexed to the Order Form.

2.2 Interpretation:

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

Any words following the terms including or include (or any similar expression) shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding or following those terms.

A reference to writing or written includes email.

3. Term

3.1 Subject to earlier termination in accordance with these terms and conditions, the Contract shall commence on the Commencement Date and shall continue during the Initial Term.

3.2 The Contract may be terminated by Coincover or the Licensee on not less than ninety (90) days’ prior written notice to expire no earlier than at the end of the Initial Term, and if no such notice is given then the Contract shall renew for one or more further consecutive terms of twelve (12) months (each a “Renewal Term”).

3.3 Coincover or the Licensee may terminate the Contract during a Renewal Term by giving the other party not less than ninety (90) days’ prior written notice to expire no earlier than the end of the then current Renewal Term.

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4. Supply of services

4.1 Coincover shall:

perform the Services with all reasonable care and skill, and in accordance with the Service Schedule;

ensure that the goods, materials, standards and techniques used in providing the Services are of suitable quality and are fit for purpose;

comply with all laws, statutes and regulations applicable to the provision of the Services from time to time in force;

comply with all reasonable written instructions given by the Licensee in respect of the provision of the Services; and

take reasonable care of all Licensee Materials in its possession.

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5. Licensee's obligations

5.1 The Licensee shall:

co-operate with Coincover in all matters relating to the Services including by satisfying the Service Activation Requirements;

provide, in a timely manner and at no charge, such information and access to the Licensee's premises, data and other facilities as Coincover may reasonably require to provide the Services;

comply with all laws, statutes and regulations applicable to the use of the Services from time to time in force; and

comply with all reasonable written instructions given by Coincover in respect of the use of the Services.

5.2 The Licensee acknowledges that Coincover shall not be required to commence provision of the Services until such time as the Service Activation Requirements have been satisfied by the Licensee.

5.3 If Coincover's performance of its obligations under the Contract is otherwise prevented or delayed by any act or omission of the Licensee, its agents, subcontractors, consultants or employees, Coincover shall:

not be liable for any costs, charges or losses sustained or incurred by the Licensee that arise directly or indirectly from such prevention or delay; and

be entitled to recover any additional costs, charges or losses Coincover sustains or incurs that arise from such prevention or delay.

6. Data protection

6.1 Coincover and the Licensee are independent controllers of any personal data shared under the Contract (the “Shared Personal Data”) and Coincover and the Licensee shall process the Shared Personal Data:

a. solely for the purposes of exercising and performing its rights and obligations under the Contract; and

b. strictly in accordance with all applicable Data Protection Legislation.

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7. Intellectual property

7.1 Nothing in the Contract is intended to operate, or shall operate, to transfer ownership of any Intellectual Property Rights.

7.2 Coincover grants the Licensee a fully paid-up, non-exclusive, royalty-free, non-transferable licence during the term of the Contract to use:

Coincover’s trade marks in marketing literature and other promotional material to refer to Coincover as the provider of the Services; and

any Intellectual Property Rights in the Deliverables for the purpose of receiving the Services.

7.3 The Licensee grants Coincover a fully paid-up, non-exclusive, royalty-free, non-transferable licence during the term of the Contract to use:

the Licensee’s trade marks in marketing literature and other promotional material to refer to the Licensee as a user of the Services; and

any Intellectual Property Rights in the Licensee Materials for the purpose of providing the Services.

7.4 Coincover shall indemnify the Licensee in full against any sums awarded by a court against the Licensee arising out of or in connection with any claim brought against the Licensee for infringement of a third party's rights (including any Intellectual Property Rights) arising out of or in connection with the exercise by the Licensee of any rights granted by Coincover pursuant to clause 7.2.

7.5 The Licensee shall indemnify Coincover in full against any sums awarded by a court against Coincover arising out of or in connection with any claim brought against Coincover for infringement of a third party's rights (including any Intellectual Property Rights) arising out of or in connection with the exercise by Coincover of any rights granted by the Licensee pursuant to clause 7.3.

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8. Charges and payment

8.1 In consideration for the provision of the Services, the Licensee shall pay Coincover the Charges within thirty (30) days of receipt of invoice unless otherwise specified in these terms and conditions.

8.2 The Charges shall be paid by the Licensee in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

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9. Limitation of liability

9.1 Coincover has obtained insurance cover in respect of its liability under the Contract. The limits and exclusions in this clause 9 reflect the insurance cover Coincover has been able to arrange. The Licensee is responsible for making its own arrangements for the insurance of any excess loss.

9.2 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract (including, but not limited to, liability in contract, tort (including negligence), misrepresentation, restitution or otherwise).

9.3 Nothing in the Contract limits or excludes any liability of Coincover or the Licensee:

for death or personal injury caused by its negligence;

for fraud or fraudulent misrepresentation;

arising from its deliberate default; or

which cannot be limited or excluded by applicable law.

9.4 Subject to clause 9.3, neither Coincover nor the Licensee shall have any liability for the following types of loss:

loss of profits;

loss of sales or business;

loss of agreements or contracts;

loss of anticipated savings;

loss of use or corruption of software, data or information;

loss of or damage to goodwill; and

indirect or consequential loss.

9.5 The Licensee shall promptly notify Coincover in writing upon becoming aware of the occurrence of any event which may, or is reasonably likely to, result in the Licensee making a claim under the Contract. In such circumstances, the Licensee shall also promptly provide such further details regarding the event and the likely grounds for any claim under the Contract as Coincover may reasonably require. Subject to clause 9.3, Coincover shall have no liability for any event which may give rise to a claim by the Licensee under the Contract unless the Licensee complies with this clause 9.5.

9.6 Subject to clause 9.3, clause 9.4 and clause 9.5, Coincover’s and the Licensee’s total liability to the other party shall not exceed an amount equal to the Charges payable by the Licensee during the twelve (12) month period preceding the date of any event which gives rise to a claim.

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10. Termination

10.1 Without affecting any other right or remedy available to it, Coincover or the Licensee may terminate the Contract with immediate effect by giving written notice to the other party if:

the other party commits a material breach of contract which it fails to remedy within a period of thirty (30) days after being notified in writing to do so;

the other party takes any step or action in any jurisdiction in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or

the other party suspends (or threatens to suspend) or ceases (or threatens to cease) to carry on all or a substantial part of its business.

10.2 On termination of the Contract for whatever reason:

the Licensee shall immediately pay to Coincover all outstanding unpaid invoices and interest in respect of Services supplied but for which no invoice has been submitted;

Coincover may destroy the Licensee Materials and any Deliverables in its possession if the Licensee fails to collect such Licensee Materials and Deliverables within a reasonable period after termination of the Contract; and

any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10.3 Termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

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11. Force majeure

Neither Coincover nor the Licensee shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

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12. Assignment

Coincover may assign any or all of its rights and obligations under the Contract to an Affiliate and must notify the licensee of the assignment as soon as reasonably practicable. Licensee may not assign any or all of its rights and obligations under the Contract without prior written consent of Coincover.

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13. Confidentiality

13.1 During the term of the Contract, and for a period of two years after termination of the Contract, neither Coincover nor the Licensee shall disclose to any person any confidential information concerning the business, affairs, Licensees, clients or suppliers of the other party, except as permitted by this clause 13.

13.2 Coincover and the Licensee may disclose the other party's confidential information:

to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract provided that it shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3 Neither Coincover nor the Licensee shall use any of the other party's confidential information for any purpose other than to perform its obligations under the Contract.

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14. Entire agreement

14.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them (whether written or oral) relating to its subject matter.

14.2 Coincover and the Licensee acknowledge that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

14.3 Neither Coincover nor the Licensee shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

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15. Variation

15.1 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15.2 Subject to clause 15.1 above, the Licensee may vary the Access Control List through an Access Control List variation (available here). Coincover will use commercially reasonable efforts to process such requests within five (5) business days of receipt of the submission. Any ACL variation shall require a simple majority of the current Access Control Member. Any ACL variation shall not amend any other terms and conditions of the Contract, and defined terms used in the ACL variation shall have the same meaning as set forth in these terms and conditions.

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16. Waiver

16.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

16.2 A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

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17. Severance

If any provision or part-provision of the Contract is, or becomes, invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17 shall not affect the validity and enforceability of the rest of the Contract.

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18. Notice

18.1 Any notice given under or in connection with the Contract shall be in writing and shall be:

delivered by hand or by pre-paid first-class post or other next working day delivery service at the address specified in the Order Form or such other email address as may be notified by Coincover or the Licensee to the other party in writing from time to time; or

sent by email to the address specified in the Order Form or such other email address as may be notified by Coincover or the Licensee to the other party in writing from time to time.

18.2 Any notice shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address;

if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

18.3 In this clause 18, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

18.4 This clause 18 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

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19. Third party rights

The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

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20. Governing law

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

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21. Jurisdiction

Coincover and the Licensee irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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