Master Agreement

This Kulipa Master Agreement (together with its Exhibits) is made by and between Kulipa SAS,  with a capital of 1.000 € whose registered office is located at 56 rue Beaubourg, 75003 Paris, France, registered with the Trade and Companies Register of Paris under the number 981570088, represented by Axel Cateland in his capacity as CEO, duly authorized for the purposes hereof, contracting for and on behalf of itself and its Affiliates (“Kulipa”) and the client as identified on the Order Form (the “Client”). Kulipa and Client are hereinafter referred to individually as a “Party” and collectively as the “Parties”.

Kulipa is a white-label card payment distributor and facilitator of virtual currency exchange services to allow performance of on-chain payment transactions in virtual currencies and/or from virtual currencies into fiat currency. Kulipa relies on financial partners that provide financial services with which Kulipa interacts to provide its services.

The Client is a self-custodial wallet services provider and wishes to rely on the services provided by Kulipa to offer to its wallet users a self-branded payment card and services to pay with their own virtual currencies.

1. Definitions

For the purposes of this MSA, terms beginning with a capital letter will have the following meaning. Terms mentioned in the singular will also apply in the plural and vice versa, depending on the context. Capitalised words used in this MSA but not defined below have the meaning given in the Order Form.

"Adverse Tax Consequences" means the imposition of additional taxes or higher rates of taxes payable by Client under an Agreement. 

“Affiliate” means any entity under the control of a Party at the effective date of an Order Form, provided that such control remains effective during the Agreement Term; it being specified that the term “control” means the holding, directly or indirectly, of more than 50% of the voting rights of an entity.      

“Agreement” means this MSA and an Order Form relating thereto agreed upon by the Parties from time to time.

"Agreement Term" is defined in Article 4.

"All Required Information" means the information (except for certain KYC data of the Client to be defined after signature) required of the Client in Exhibit 2, which are required for the Card Program to go live.

“API” means any of the application programming interfaces provided by Kulipa for access and use of the Payment Solution.

“Applicable Law” means any laws, enactments, orders, ordinances, rules, regulations, regulatory guidance, regulatory requirements and any form of secondary legislation, resolutions, policies, guidelines, recommendations, decisions, orders, concessions from any judicial, legislative or regulatory body or regulatory authority having jurisdiction over a Party that may be issued or modified from time to time that are binding on a Party and that are applicable to the performance, receipt or use of the Services in the relevant jurisdiction pursuant to the Agreement.

“Back-Office” means the web-based application provided by Kulipa to the Client for the purpose of managing the access and use of the Payment Solution, in particular for the provision of the Level 1 Support.

“Back-Office Credentials” means the connection credentials intended to identify a Client’s User (login) and the Client’s User’s personal and confidential password for access to and use of the Back-Office. 

“Brand” means any trademark (registered or unregistered), trade name, logo and/or any other graphical elements of Client.

“Card” means a physical or virtual Mastercard or Visa payment card issued with Client’s Brand for use by a Cardholder in connection with a Wallet.

“Cardholder” means an individual who is a customer of Client and who agrees to use and/or receive Payment Services in connection with a Wallet.

“Cardholder Credentials” means the connection credentials intended to identify a Wallet and the related Cardholder for use of the Card. 

“Cardholder Terms of Services” means the general terms and conditions of use of governing the issuance of a Card to a Cardholder and the use of the Card to process Payment Services.

"Card Program" means the services provided by Kulipa related to the supply of the Cards offered by Kulipa to Client in accordance with the terms of the MSA and the Order Form.

“Change of Control” means any direct or indirect change in the ownership or control of a Party, including but not limited to, a change in the ownership of more than fifty percent (50%) of the voting rights, shares, or equivalent interests of such Party.

“Client Data” means all data or information provided, uploaded or submitted by the Client to the Payment Solution during the course of using the Services other than KYC Elements and KYC Supplements. 

“Direct Competitor” means any entity that operates in the same market segment and provides substantially similar services or products as those offered by the other Party at the time of assignment, transfer or Change of Control.

“Documentation” means user information, feature descriptions of the API and any other document related to the use of the Payment Solution generally made available by Kulipa under the Agreement. 

"Fees" means the fees and charges contained in an Order Form.

“Financial Partner” means any third-party partner of Kulipa or Affiliates of Kulipa that provides Financial Services.  

“Financial Services” means any services      related to the issuance of the Cards and the provision of Payment Services.

"GDPR" means Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

"Go-Live Date" means the date of the Go-Live Notice.

"Go-Live Notice" means a document signed by the Parties confirming that: (i) all approvals required by Kulipa (from its Financial Partners or otherwise) to perform and for Client to receive the benefit of the Payment Services are in place, and (ii) the Platform and the Client's integration of the Payment Solution have been tested and are ready for commercial use.

“Key” means an individual API key (or any replacement) delivered by Kulipa to the Client for use of the API(s) pursuant to the Agreement.

“KYC Elements” means any documents and information relating to a prospective Cardholder that must be transmitted by Client to Kulipa for provision of the Services to allow Kulipa and its Financial Partners to comply with Applicable Law.

“KYC Supplements” means any additional documents and information relating to a prospective Cardholder or existing Cardholder that must be transmitted by Client to Kulipa for provision of the Services to allow Kulipa and its Financial Partners to comply with Applicable Law.

“Level 1 Support” means the assistance and support services to be provided by Client to Cardholders with respect to Cards and Payment Services according to the Order Form.

“MSA” means this Kulipa Master Agreement, its Exhibits and any amendments thereto agreed between the Parties. 

“Order Form” means the document(s) issued by Kulipa and executed by the Parties which specifies notably the Services being subscribed by the Client to be provided by Kulipa and its Financial Partners, the duration of the subscription to the Services, the Price and any other specific terms and conditions mutually agreed upon by the Parties.

“Payment Services” means the payment services available to a Cardholder for the use of a Card linked to its Wallet, and subject to the Cardholder Terms of Services.

“Payment Solution” means the proprietary software application of Kulipa in object code form as described in the Order Form which is accessible from a hosted Platform through the API for the delivery of Payment Services as well as from the Back-Office. The Payment Solution includes any related Documentation, and it incorporates any updates, revisions, modifications, fixes, additions, and enhancements provided to Client through Support. 

"Personal Data" is defined in Article 11.1.

“Platform” means the platform that is used to host and deliver the Payment Solution to Client. 

“Price” means the Fees payable by Client to Kulipa as part of the Services under an Agreement. 

"Service Level Agreement" means the document at Exhibit 1 to this MSA.

“Services” means the services provided by Kulipa related to the Card Program, the Payment Solution and supply of Cards as set forth in an Order Form. 

“Support” means the standard support services in relation to the Payment Solution provided by Kulipa to Client according to Kulipa support policy, a copy in force at the effective date of this MSA is attached hereto as Exhibit 1.

“Territory” means the specific country or region set in the Order Form in which the Client is authorized to issue the Cards and access and use the Payment Solution as provided by Kulipa under the Agreement. 

"Third-Party Approvals" means the approvals of those third parties listed in the Order Form and which are required for the Card Program to go live as evidenced by the Go-Live Notice.

“User” means (i) any employee, agent or contractor of the Client, duly authorized by the Client to (a) embed the API into Client’s system on behalf of the Client for the integration of the Payment Solution into the Wallets or (b) access and use the Back-Office for the provision of Level 1 Support and (ii) any Cardholder accessing and using the Payment Solution through its use of a Wallet under the right granted by Client. 

“Wallet” mean a self-custodial digital assets wallet made available by Client to store, manage and transfer virtual currency which embeds the API such as to enable Payment Services.

"xPays" means the services provided by third parties to host payment cards and in which the Client might decide to make its Cards eligible for. Examples of such services are Apple Pay provided by Apple and Google Pay provided by Google.  The conditions under which the Cards will be made eligible to be added into these services will be defined in detail in an Order Form.     

2. Purpose

The purpose of the MSA is to define the conditions that governs any Order Form placed for the purchase of Services by Client.

3. Ordering

The MSA does not constitute a commitment to order. Any subscription to the Services requires the prior execution of an Order Form by the Client, which is governed by and incorporates the MSA to form the Agreement. Each Order Form is separate and independent from any other Order Form.

As Client enters the MSA in its own name for its behalf and on behalf of its Affiliates, each Affiliate of Client is authorized to place an order pursuant to the MSA through an Order Form. The Client is responsible for communicating the MSA to its Affiliates. By executing an Order Form, the Client’s Affiliate agrees to be bound by the terms and conditions of the MSA which apply mutatis mutandis to the Affiliate as if it was the Client.  The Client and the Affiliate executing the Order Form are jointly and severally liable towards Kulipa to comply with the terms of the Agreement.

4. Term

The MSA will become effective on the date of signature by the Parties and expires one (1) year after the expiration or termination date of the last Order Form in force (the “MSA Term”), unless the MSA is terminated in accordance with the conditions set out in Article 18 of the MSA. 

Subject to the Third-Party Approvals identified by Kulipa, each Order Form shall enter into force and remain in force on the date and for the duration specified in the relevant Order Form (the “Initial Subscription Term”). Upon expiry of the Initial Subscription Term, the Order Form may be renewed for successive subscription periods of one (1) year each by mutual written agreement (each an “Additional Subscription Term”), unless terminated by either Party under the conditions set out in Article 18 of the MSA (the Initial Subscription Term and any Additional Subscription Term are together referred to as the “Agreement Term”). 

5. Financial conditions

1. Price

The Price due by the Client to Kulipa, including its breakdown, is set out in the Order Form and is exclusive of any applicable tax payable by the Client at the rate in force on the date of invoice. The Client's obligation to pay the monthly Service Platform Access Fees (as defined in the Order Form) shall commence on the Subscription Start Date, which is the earlier of (i) the date specified in the Order Form or (ii) the date of Implementation Completion.

Except as otherwise agreed in this MSA and any Order Form, the Price is non-refundable and not subject to deduction or offset by Client. 

All payments will be made in the currency indicated in the Order Form and on the invoice issued by Kulipa.

The Price is valid for the duration set in the Order Form and thereafter, any Price revision will be subject to mutual agreement in writing.

Subject to any limitations under Applicable Law, the Client (and the Client alone, not Kulipa nor any Financial Partner nor any KYC service provider) is free to set the fees and charges payable by the Cardholder.

2. Payment terms

The Price is due according to the payment schedules set in the Order Form. The Price is payable by bank transfer within thirty (30) days from the date of the invoice issued by Kulipa.

In the event of late payment, Kulipa reserves the right to claim, as of right and without prior formality, late payment interest on a daily basis from the day following the due date until the date of full payment, at the interest rate applied by the European Central Bank to its most recent financing operation increased by ten (10) points of percentage, as well as a recovery fee of forty (40) Euros per invoice, notwithstanding the right to claim for the total amount of the actual recovery costs upon justification. If the Client fails to pay the due fees more than thirty (30) calendar days after the payment due date, Kulipa reserves the right (after a further reminder to Client in writing) to suspend as of right the Services and (if the payment default continues for another 15 days) to terminate as of right the Agreement without prejudice to any damages that Kulipa may claim.     

6. Scope of the Services

1.      Services

The scope of Services is defined in the Order Form. Unless provided otherwise in an Order Form, Kulipa does not at any time enter into the possession of virtual currency stored in a Wallet or transacted through Cards.      

The Payment Solution includes the provisions of software-related services in relation to Wallet and an end-to-end solution for facilitating communication for the processing and settlement of payment transactions as well as any operations related to Financial Services to settle a payment transaction.

Kulipa undertakes to provide, directly and/or indirectly on behalf of Financial Partners where applicable, the Services in accordance with the Service Level Agreement. Client shall provide all information reasonably requested by Kulipa to enable it to provide the Services in accordance with Applicable Law and the Cardholder Terms of Services.

2. Remote provision of the Services

Unless expressly stated otherwise in the Order Form, the Services are supplied remotely. Where the supply of Services requires the intervention of the staff of Kulipa on the Client’s site, Kulipa will ensure that its staff comply with the applicable safety and security standards communicated in writing by the Client prior to the provision of the Services. The Client shall integrate with Kulipa's API as necessary for the performance of the Services. Where access to the Client’s facilities, software and/or equipment are necessary for the performance of an audit as required by any regulatory authority under Applicable Law and with jurisdiction over Kulipa or over its Financial Partners, the provisions set out under Article 13 below shall apply. It is the Client’s responsibility to take the appropriate safeguard measures of its IT system and data prior to any provision or access provided to Kulipa’s staff. Kulipa disclaims all liability in the event of loss or destruction of the Client’s data during the course of performance of the Services, to the extent such loss or destruction is not caused or contributed to by Kulipa's wilful misconduct or gross negligence.

3. Kulipa staff

Kulipa undertakes to perform the Services diligently, professionally, and to assign qualified staff for the supply of Services. Kulipa retains the sole and exclusive right to control or direct the manner, means, methods by which the Services are performed, including the staff assigned to carry out the Services. Kulipa’s staff remain under the hierarchical and disciplinary authority of Kulipa as sole and exclusive employer. Kulipa undertakes to comply with the social obligations and declarations that are applicable pursuant to Applicable Law. 

7. Card ordering and delivery of Payment Services to Users

1. Card ordering and Cardholder relationship

Client is responsible towards Kulipa for any ordering of Cards under the Agreement on behalf of Cardholders. 

Unless otherwise agreed in the Order Form, Kulipa will be responsible for delivering, on behalf of Client, the Cards to Cardholders’ addresses provided by Client. 

Client shall:

1. help collect and/or provide to Kulipa the KYC Elements related to any prospective Cardholders as well as any KYC Supplements regarding existing Cardholders;
2. have prospective Cardholders agree to the Cardholder Terms of Services, after having informed them that such acceptance is a necessary condition for the provision of the Card and the related Payment Services;
3. no later than seven (7) business days from receipt of the request, inform Kulipa of any request from a Cardholder to exercise its right of withdrawal as set out in the Cardholder Terms of Services; 
4. send Cardholders any updates to the Cardholder Terms of Services in accordance with the conditions and deadlines set out by Kulipa;
5. provide regular reports to Kulipa detailing those Wallets held by Cardholders which have been delinked; and
6. provide Level 1 Support to Cardholders.

2. Payment Services to Cardholders

The Client is responsible for the services it provides to Cardholders, including Level 1 Support, other than the Payment Services.

Subject to Client’s compliance with the Agreement, Kulipa and its Financial Partners are responsible towards the Cardholder for the Payment Services in accordance with the Cardholder Terms of Services.

Notwithstanding the foregoing, Client undertakes to:

1. embed the API in accordance with the Documentation and the terms of this Agreement and in compliance with Applicable Law;
2. not modify the API or modify any component of the Services;
3. not circumvent or otherwise interfere with any security measures implemented with respect to the Payment Solution;
4. without undue delay, implement any changes requested by Kulipa to remedy any security vulnerability or comply with any legal or regulatory changes to Applicable Law; and
5. implement and maintain appropriate administrative, physical and technical safeguards in accordance with best industry standards to ensure the security, confidentiality and integrity of any Wallet. 

The Parties expressly agree that where a Cardholder disputes a transaction or report a transaction as a fraud that has been authorized from use of its Wallet or the Card, Client shall be responsible for full refund to the Cardholder of the relevant transaction amount and shall indemnify Kulipa and/or the Cardholder of any losses or damages sustained if such dispute or fraudulent transaction arises from a breach by Client of its obligations to secure the Wallet and/or to maintain the security, confidentiality and integrity of the Wallet and of any Cardholder data. To the extent permitted under Applicable Law, the obligation to indemnify the Cardholder or Kulipa does not arise where the loss or damage arises from or is connected to the Cardholder's fraudulent or negligent act or omission provided that such Cardholder’s fraudulent or negligent act or omission has not been contributed to by a breach of Client of its obligations under the Agreement. 

8. Payment Solution

1. Right of use of the Payment Solution 

1. License grant

In consideration of Client’s compliance with the terms of the Agreement and the specifications set in the Document, Kulipa grants to Client and its Affiliates a personal, non-exclusive, non-transferable and non-sublicensable license for the Territory allowing (i) Client’s Users to embed the API into Wallets and to access and use the Payment Solution through the Back-Office to provide Level 1 Support and (ii) Client to provide products and services to Cardholders through the Wallets.

It is expressly understood that no Cardholder can access and use the Back-Office.

2. License restrictions

The Client is only entitled to use the Payment Solution under the conditions specifically permitted by the Agreement and in compliance with the Documentation, Kulipa reserves all other rights.

Client undertakes not to and shall ensure that Users shall not: (i) copy, make available and/or distribute in whole or in part in any way whatsoever the API, the Back-Office and the Payment Solution to third parties other than authorized Users; (ii) access and/or use the Payment Solution beyond any metric in the Order Form or outside the Territory without subscribing to an additional Order Form and paying the agreed Fees; (iii) assign, sell, rent, lend, sublicense, distribute, outsource or transfer the rights granted to it under the Agreement; (iv) adapt, modify including for the purposes of correction, or translate the API and/or Payment Solution; (v) disassemble, decompile, reverse engineer, or otherwise attempt to discover or reconstruct the source code of the Payment Solution, except as specifically provided by  Applicable Law; (vi) alter, destroy, or delete any mentions or notices relating to intellectual property rights, or any other proprietary notices of Kulipa appearing on the API, the Back-Office, the Payment Solution or in the Documentation; (vii) distribute all or part of any software other than the Wallet created in whole or in part with the API, the Back-Office and/or the Payment Solution; (viii) use the Payment Solution for benchmarking purposes or communicate to third parties the results of performance testing of the Payment Solution.

Use of the API, Back-Office and Payment Solution may be limited to the relevant rate limit (if any) set out in the Order Form and to compliance with the conditions specified in the Documentation. The Client undertakes to ensure that Users do not make grossly unreasonable and manifestly excessive use of the API, Back-Office and Payment Solution and, more generally, that their inappropriate use does not affect the stability, security, and quality of the API, Back-Office and/or Payment Solution.  The Client undertakes to immediately inform Kulipa, in writing, of any increased usage beyond the rate limit (if any) set out in the Order Form which it becomes aware of, and shall be liable to pay the applicable fees for such excess usage at the Volume Fee rate set out in the relevant Order Form.

2. Access and use limitation

1. Connection to the Payment Solution

Use of the Payment Solution requires an internet connection to the API and the Back-Office, at the Client’s expense, and prior registration to get a Key and Back-Office Credentials. The Client is required to keep the Key and Back-Office Credentials confidential and not to communicate them to third parties.  The Back-Office Credentials commit the Client to any Client’s User use of the Back-Office.

The Client is responsible for the access to and use of the API and the Back-Office by the Client’s Users. It is the Client’s responsibility to make each Client User comply with the terms of the Agreement and the Documentation. 

The Client is not authorized to allow Cardholders to access the Platform, the Back-Office and/or the Payment Solution directly. Cardholders can only access the Payment Solution indirectly, through the use of their Cards or Wallet with their Cardholder Credentials.

2. Prerequisite

The Client acknowledges and agrees that use of the Payment Solution requires in-depth technical knowledge and skills in development and software integration in order to make the API work with the Client’s Wallet and the systems of the Client. 

The right granted to access, install and use the API pursuant to this Agreement is subject to the activation by Client of a Key generated by Kulipa.

The Client is responsible for the configuration of its systems to access and use of the Payment Solution in accordance with the Documentation.

3. Support

In consideration of the Price paid by Client, Kulipa will provide to Client the Support according to Kulipa’s support policy as contained in the Service Level Agreement.

9. Ownership

Kulipa and its licensors have and will retain full title and ownership (including all material and intellectual property rights) over the Services (including the Payment Solution, the Platform, Back-Office and any API). The Agreement does not include any transfer of ownership to the Client and Kulipa reserves all rights not expressly granted herein. Client agrees not to challenge directly or indirectly Kulipa’s rights and title over the Services.

Client’s compliance with Kulipa’s intellectual property rights and the limited rights granted under the Agreement constitute essential conditions of the Agreement. 

Any material, intentional and repeated misuse of the Services, whether directly or indirectly, constitutes serious breach of the Agreement and entitles Kulipa to suspend (on no less than ten (10) days' prior written notice) or (on no less than a further ten (10) days' prior written notice) terminate the Agreement.  

The Client is and remains the sole owner of the Client Data. The Client grants Kulipa a worldwide and revocable licence to use the Client Data for the Agreement Term, whether such Client Data is provided by the Client and/or Users, in order to store and process the Client Data for the purpose of performing the Agreement, including notably analysing the performance of the Services, optimizing and improving the performance of any tools (but excluding any sale or lease of Client Data to third parties) and developing new services. 

The Client grants to Kulipa, a licence which is personal and sublicensable to third parties (including any Financial Partner) in charge of the production and issuance of Cards, worldwide and for the term of the Agreement to use the Brand solely for the production, design and distribution of Cards to Cardholders. Kulipa will comply and ensure that the third parties comply with any branding guidelines provided in writing by Client.

The Client warrants that it has the appropriate rights and authorizations to grant any of the aforementioned licences.

10. Warranty and Service Levels

The Client acknowledges and agrees that the Services are provided as is, without any warranty from Kulipa and/or its Financial Partners. Kulipa expressly disclaims any warranty of compliance, latent defect, compatibility, and fitness for Client’s particular purposes. Kulipa does not warrant that the API, Back-Office and/or Payment Solution is error-free or will operate without interruption. The Client expressly agrees to assume all risks inherent in accessing and using the Services. Client is solely responsible for implementing appropriate measures to minimize the harmful consequences of, in particular, a possible interruption in the operation of the Services or a loss of Client Data during use of the Services. 

The Client warrants that the Client Data does not (i) infringe the intellectual property rights, trade secrets, privacy or any other rights of third parties; (ii) contain unlawful, hateful, obscene, abusive, threatening, defamatory or otherwise offensive content; (iii) contain malicious code that could damage or corrupt the Payment Solution; and/or (iv) constitute unlawful processing of Personal Data.  The Client undertakes, at its own expense, to defend and hold Kulipa harmless from any action or claim raised by a third party (including but not limited to claims for infringement of intellectual property rights, unfair competition or free riding, privacy violation, violation of the protection of Personal Data) relating to Kulipa’s use of Client Data pursuant to the Agreement. The Client will indemnify Kulipa for all costs (including lawyers’ fees), losses and damages that Kulipa and its legal representatives and agents may incur together with the amount of any settlement and/or damages finally awarded against Kulipa by virtue of an enforceable and final arbitral tribunal or court decision or as approved by Client in respect of such third-party claims. Such defence and payments are conditional upon Kulipa giving Client prompt written notice of any such claim and the sole right to control its defence, negotiation or resolution; and, at Client's expense, Kulipa providing Client with reasonable assistance in its defence and settlement.

Kulipa warrants on a continuing basis during the Agreement Term that the API, the Back-Office, the Payment Solution, the Platform and the Payment Services do not (i)  infringe the intellectual property rights, trade secrets, privacy or any other rights of third parties; (ii) contain unlawful, hateful, obscene, abusive, threatening, defamatory or otherwise offensive content; (iii) contain malicious code that could damage or corrupt any Wallet; and/or (iv) constitute unlawful processing of Personal Data. 

Kulipa undertakes, at its own expense, to defend and hold the Client and its Affiliates harmless from any action or claim raised by a third party for breach of infringement of intellectual property rights, privacy violation, violation of the protection of Personal Data relating to Kulipa’s provision of the API, the Back-Office, the Payment Solution, the Platform and the Payment Services. Kulipa will indemnify the Client for all costs (including reasonable lawyers’ fees), losses and damages finally awarded against Client, its legal representatives and agents by virtue of an enforceable and final arbitral tribunal or court decision or as approved by Kulipa as part of any settlement for which Client and its Affiliates may be held liable.  Such defence and payments are conditional upon the following:

(a) that Client gives Kulipa prompt written notice of any such claim as detailed below, the sole right to control its defence, negotiation or resolution, and, at Kulipa’s expense, Client provides Kulipa with reasonable assistance in its defence and settlement, and

(b) that Client will permit Kulipa, at Kulipa’s option and expense, to procure for Client the right to continue using such API, the Back-Office, the Payment Solution and the Platform, to replace or modify it so that it becomes non-infringing, or, in the event Kulipa has made all reasonable efforts to achieve such procurement and such replacement or modification, Kulipa shall terminate Client’s rights and Kulipa’ obligations under this Agreement; and

(c) Kulipa shall have no obligation with respect to any such claim based upon (i) any modification by Client of the API, the Back-Office, the Payment Solution or the Platform or (ii) their combination, operation or use with data or programs not furnished by Kulipa or (iii) third-party code, including but not limited to open-source code or (iv) specifications requested by Client. The foregoing is subject to the provisions of this Agreement and states Kulipa's entire liability and Client's exclusive remedy with respect to any infringement of intellectual property rights, privacy violation and violation of the protection of Personal Data relating to Kulipa’s provision of the API, the Back-Office, the Payment Solution, the Platform and the Payment Services.

If Kulipa becomes aware that the Client or the Client Data may be in breach of the foregoing, Kulipa shall inform the Client in writing and reserves the right to delete the litigious Client Data.

11. Personal Data

1. Processing for the performance of the Agreement

Each Party undertakes to process personal data (the “Personal Data”) of Cardholders, the representatives and/or employees of the other Party in accordance with applicable laws and regulations, and in particular, in accordance with the French Law n°78-17 of 6 January 1978 as amended and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “Regulation”). In this context, each Party acts as data controller in relation to its own processing operations necessary to the performance of the Agreement and warrants that it will comply with all obligations arising from the Regulations.

The Personal Data processed as part of the Agreement includes identity data, such as the title, surname, first name, e-mail address and telephone number of the representatives and/or employees of the other Party. 

Personal Data is collected and processed by the Parties for the purposes of performance of the Agreement; the legal basis for processing is, as the case may be, the performance of the Agreement, the legitimate interest of a Party or compliance with a legal or regulatory provision. The collection of Personal Data is compulsory, failure to provide this data may result in the Agreement no longer being able to be performed by the Parties.

The Personal Data collected by the Parties may be communicated (a) in order to enable the proper management of the contractual relationship, to all Affiliates and to third-party companies in connection with the performance of the Parties' contractual relationship and (b) in order to comply with Applicable Law.

Each Party undertakes to inform the other Party as soon as possible of any request from a data subject to exercise his or her rights with regard to the Personal Data concerning him or her in order to enable the other Party to comply with the GDPR. 

2. Processing for the provision of the Services

The Parties agree that the processing of Personal Data required to access and use the Services are as detailed in Exhibit 1 to the MSA. 

12. Confidentiality

Each Party undertakes, with regard to information of a technical (including but not limited to the Platform, the API, the Back-Office, the Payment Solution and the Documentation), financial, commercial or otherwise sensitive nature (the “Confidential Information”) of the other Party that it may have become aware prior to or during the performance of the Agreement, to (i) keep such information strictly confidential, (ii) not copy, communicate or make available such information to third parties, with the exception of its legal representatives, agents and advisors within the limit of what they need to know to carry out their tasks and provided that they have signed a confidentiality agreement or are subject to an obligation of confidentiality ensuring a level of protection at least equivalent to the provisions of this article, and (iii) not to use such information, directly or indirectly, for any purpose other than the performance of the Agreement. 

Each Party will ensure and represent that the persons referred to in (ii) above comply with the confidentiality obligations.

The confidentiality obligations shall not apply to Confidential Information for which the receiving Party is able to prove that it (i) was in the public domain on the day of its disclosure or subsequently without any breach from the receiving Party, (ii) was legitimately obtained from a third party not bound by an obligation of confidentiality, (iii) was developed independently by the receiving Party without breach of the Agreement, (iv) was disclosed by the disclosing Party or the Party to which they belong, or (v) was disclosed by the receiving Party with the prior written consent of the disclosing Party. 

If the Party receiving Confidential Information is required to disclose it pursuant to legal or regulatory provisions, or upon the order of a competent court or administrative authority, such Party shall inform the other Party in advance and as soon as possible, so as to enable the latter to object to it. 

The obligations of the Parties with respect to the Confidential Information will remain in force for the term of the Agreement and for as long as the information concerned is deemed to be information protected by trade secret within the meaning of Applicable Law.

Upon termination of the Agreement, each Party undertakes to return or destroy, at the request of the disclosing Party, the Confidential Information of the other Party in its possession or under its control.

13. Audit

The Client acknowledges and agrees that, during the term of the Agreement and for a period of two (2) years following its termination, Kulipa reserves the right to verify the conditions of access to and use of the Services by the Client (including the Client’s Users and/or the Cardholders), no more than once (1) per year, unless reasonable grounds or required by any regulatory authority with jurisdiction over Kulipa or of its Financial Partners, in each case pursuant to Applicable Law. To this end, the Client undertakes to provide, within twenty-one (21) calendar days of the request or as otherwise required by the regulatory authority, such documents and information as is reasonably required by Kulipa in order to allow Kulipa or any third party appointed by it to verify compliance with the terms and conditions of the Agreement and with Applicable Law. Without prejudice any other right or remedies Kulipa may have, if the audit reveals any material non-compliance, the Client undertakes to remedy the situation as soon as practicable. and to reimburse the reasonable, applicable third-party fees paid by Kulipa subject to Kulipa providing documentary evidence of such third-party fees. Where the audit is performed on the request of a regulatory authority, each Party bears its own cost for the conduct of the audit.

14. Liability

Client is responsible to ensure that the Client Data and its equipment necessary to access and use the Payment Solution are suitably protected. 

The Client is responsible for and represents that Users comply with the terms and conditions of the Agreement, Client remains liable to Kulipa for any breach of the Agreement by a User. 

Kulipa disclaims all liability for the inaccuracy, loss or alteration of Client Data as well as the costs associated with their recovery or in case of indirect damage including, without limitation, in the event of loss of income, loss of profits, operating losses or loss of goodwill resulting from the Services.      

To the fullest extent permitted by the governing law of the Agreement, each Party’s liability towards the other in aggregate under the Agreement is strictly limited to the amount paid and due by the Client during the twelve (12) calendar months preceding the event giving rise to the claim. The liability cap will not apply in the event of a breach by the Client and/or Users of the Client’s obligations under the first and second paragraphs of article 8.1.2 (License restrictions) and the second paragraph of article 9 (Ownership) and either Party's breach of article 12 (Confidentiality) of the Agreement.

15. Subcontracting

The Client acknowledges and agrees that Kulipa uses Affiliates and third-party providers to provide the Services. Notwithstanding the delegation or subcontracting of all or part of Kulipa’s obligations to such third-party service providers, Kulipa remains liable to the Client for the proper performance of the Services and any breach by its Affiliates or third-party service providers (and any Financial Partner) of the Agreement.

16. Force majeure

Except for payment obligations, neither Party can be held responsible for failure to fulfil its obligations under the Agreement if such a failure results from a force majeure event as defined by Applicable Law and the competent courts, including notably any government decision such as the withdrawal or suspension of authorizations of any kind, a total or partial strike, whether internal or external to the company, a fire, a flood, a natural disaster, an earthquake, an act of terrorism, a state of war, an epidemic, a pandemic, a total or partial interruption or blockage of the telecommunications or electricity networks, an act of computer hacking (“Force Majeure”).

The Party experiencing a Force Majeure event must inform, without delay and by any means, the other Party of its impossibility to perform its obligations, providing as much detail as it has on the event and what steps it is taking to mitigate the event. The Force Majeure event will entitle the affected Party to suspend the performance of the affected obligations. The Party whose performance has been delayed will use all reasonable commercial efforts to mitigate the effects of the Force Majeure. In case of a Force Majeure event lasting more than thirty (30) consecutive calendar days, each Party is free to terminate the Agreement as of right. The termination will be effective from the day following the notice of the termination.

17. Assignment and change of control

Each Party reserves the right to assign or transfer, without the prior written consent of the other Party (but shall notify the other Party in writing no less than twenty (20) days before its completion), whether in exchange for payment or free of charge, for any reason whatsoever, the MSA and any Agreements to (i) any company of the group to which it belongs or (ii) to any other third party, in the event of a merger or a total or partial transfer of its assets or business, or a Change of Control, which the Client acknowledges and agrees. 

However, no such assignment to, transfer to or Change of Control by a Direct Competitor of the other Party can be performed by a Party without the prior written consent of such other Party. 

In the event of an assignment, transfer or Change of Control involving a Direct Competitor or which may result in Adverse Tax Consequences, the other Party may elect to terminate the Agreement, without further liability and without being able to claim any credit or refund, of part or all of the Price and / or any other amounts paid by the Client or which have become due (even if not yet paid or payable) by the Client up to the date of termination of this Agreement, both Parties waiving any claim or action in this regard.

18. Termination

1. Termination of the MSA

Only the Client and Kulipa which have executed this MSA, or their successor and assignee where applicable, can terminate the MSA pursuant to the following conditions in this Article 18. No Affiliate is entitled to terminate the MSA pursuant to such conditions. 

1. Termination for insolvency

Each Party reserves the right, to the fullest extent permitted by Applicable Law, to terminate the MSA and/or any Agreement in the event that the other Party enters into insolvency or liquidation proceedings, upon written notice. The period of such written notice is the greater of (a) thirty (30) calendar days, and (b) the period provided for under Applicable Law.

2. Termination of the Agreement 

Kulipa reserves the right to terminate the relevant Agreement in the event of a breach by the Client of one or more of its material obligations (such as those set out under Articles 5, 7, 8, 10, 12 and 13 of the MSA). Termination will occur as of right (i) after a prior notice in writing sent to the Client and which remained uncured for a period of thirty (30) calendar days, or (ii) in case of judicial liquidation for the period provided for under by Applicable Law. Termination will be effective on the day following the expiry of the aforementioned period, if any, and shall be without prejudice to the rights and remedies of Kulipa under the Agreement and at law.

The Client may terminate the relevant Agreement in the event of a breach by Kulipa of its material obligations (such as those set out under Articles 6, 7, 11 and 12 of the MSA). Termination will occur as of right after a prior formal notice sent to Kulipa which remains uncured for a period of thirty (30) calendar days. Termination will be effective on the day following the expiry of the aforementioned period, and shall be without prejudice to the rights and remedies of Client under the Agreement and at law.

Termination of an Agreement does not automatically terminate other ongoing Agreements, which shall remain in full force and effect. 

3. Consequence of termination 

1. Termination of the MSA

In the event of termination of the MSA for insolvency of the Client, any and all ongoing Agreements will immediately and automatically terminate at the effective date of termination of the MSA and the Client must immediately cease and have ceased all use of the Services by the Users.

2. Termination of an Agreement

In the event of termination of an Agreement, regardless of the cause of this termination, the rights granted to the Client with respect to the use of the Services shall immediately and as of right terminate with respect to such Agreement only and Client shall cease and cause Users to cease all use of the Services. In the event of termination, Kulipa will retain the full amount of the Price paid by the Client, notwithstanding Kulipa’s right to claim any amounts due and unpaid. 

Any other ongoing Agreements shall remain in full force and effect, termination of an Agreement shall not prevent the execution of any other Order Form by the Parties.

3. General provision

Termination shall not affect the rights and obligations of the Parties arising prior to the termination of the MSA and/or Agreement. The provisions of the Agreement which, by their nature, are intended to continue beyond the termination (such as the obligations set out under Articles 5, 9 to 14 and 18 of the MSA) shall remain in full force and effect.

19. Miscellaneous 

1. Independence

The Parties are and remain for the entire duration of the Agreement independent contracting parties. The MSA and any Agreement does not constitute, in any way, a mandate contract, a partnership, an employment contract or a joint venture between the Parties.

2. Integrality

The MSA (and any Order Forms) constitutes the entire agreement between the Client and Kulipa with respect to its subject matter, and supersedes any prior agreement or statement, written or oral. No changes to the MSA or to an Agreement shall be made without a prior written amendment signed by the Parties. The Order Form shall take precedence over any contrary provisions of the MSA. 

The Client’s terms and conditions contained in an Order Form or similar document issued by the Client in connection with the subscription to the Services are expressly rejected by Kulipa and are null and void.

3. Notification

Any notice given under the MSA or an Agreement shall be in writing and may be delivered by hand or sent by registered letter with acknowledgement of receipt in France or by express mail outside France, properly addressed to the other Party as specified on the header of the MSA or, if applicable, on the Order Form. Notices delivered by hand shall be deemed to have been given when handed over, notices sent by registered letter with acknowledgement of receipt shall be deemed to have been given when first presented, and notices sent by express mail shall be deemed to have been given when first presented against signature. Either Party may change its address by giving notice to the other Party. A copy for information purposes of any notice must be sent by email to the relevant address:

Client: as specified in the Order Form

Kulipa: axel@kulipa.xyz, cc michael@kulipa.xyz 

4. Non-waiver

The fact that one of the Parties does not exercise any of its rights under the Agreement shall not constitute a waiver on their part. Any waiver must be in writing and signed by an authorized representative of the concerned Party.

5. Commercial reference

The Client expressly authorizes Kulipa to use and reproduce for business reference purposes, the name, trade name, trademark and/or logos of the Client and make reference to the contractual relationship with the Client on all promotional media used by Kulipa.

6. Nullity

If any of the provisions of the MSA or the Agreement is null and void, inapplicable or unenforceable by virtue of a law or a final court decision, the other provisions of the MSA or Agreement shall retain their full force and scope. 

7. Non-solicitation of personnel

Unless otherwise agreed by the Parties, the Client undertakes not to employ or have employed in any way whatsoever any employee of Kulipa. This undertaking will apply throughout the term of the MSA and the Agreement, and will remain in effect for six (6) months from its termination. In the event of breach by the Client, the latter will be bound to pay liquidated damages corresponding to the last twelve (12) months of the gross remuneration for said employee.

8. Convention of proof 

Information collected by Kulipa relating to access and use of the Services may be stored by Kulipa as evidence throughout the term of the Agreement and for five (5) years after termination or expiry for any reason. In the event of a dispute, the Parties expressly agree that the information collected by Kulipa is admissible and enforceable between the Parties.

9. Electronic signature

When the Parties agree to use an electronic signature means to sign the MSA and/or any Order Form, the Parties expressly agree that affixing their electronic signature constitutes evidence of their consent to the content of the MSA and/or relevant Order Form so that it is enforceable and legally binding in the same way as if it had been received, executed and stored in a paper-based format. The Parties acknowledge and agree that computer data recorded by Kulipa and/or the provider of an electronic signature means, as well as the technical information related to the use of the electronic signature means, will prevail between the Parties and constitute valid evidence that are admissible and enforceable in any proceedings.

20.      Governing law and jurisdiction 

The MSA and each Agreement and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, French law. 

All disputes arising out of or in connection with the MSA and any Agreement which are not resolved by the parties' respective CEOs within 30 (thirty) days of either party's notice in writing to the other of the dispute shall be submitted to the exclusive jurisdiction of the competent courts of Paris (France) notwithstanding plurality of defendants or warranty claims, including for urgent or interim proceedings, whether in summary proceedings or by application proceedings.

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Exhibit 1

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Service Level Agreement and support policy     

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Summary

This Service Level Agreement and support policy (the “SLA”) sets forth the Service levels, policies and procedures with respect to the services (the “Service”) provided by Kulipa to Client pursuant to the separate Service Agreement between Kulipa and Client (the “Master Service Agreement”). 

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Availability

Kulipa will use commercially reasonable efforts to provide Client with the following availability to the Service (the “Service Availability”).

The Service Availability will be measured on a monthly basis, with all hours weighted equally. Service Availability is calculated by subtracting from 100% the average of the Error Rates from each 5-minute interval in the month. If Client did not make any requests in a given 5-minute interval, that interval is assumed to have a 0% Error Rate.

Error Rate means, for each request: (i) the total number of internal server errors returned for a request type divided by (ii) the total number of requests for such request type during the applicable 5-minute interval of the monthly cycle. The calculation of the number of internal server errors will not include errors that arise directly or indirectly as a result of any of the following exclusions:

• Reasonable scheduled downtime for system maintenance, subject to notice having been provided to the Client no later than ten days prior;
• Any actions of Kulipa when complying with the request or acting under the direction of Client;
• Access or use of the Service by Client and/or its Affiliates and/or the Users contrary to the Agreement;
• Client’s failure to respond to support requests that require Client’s participation (including in the identification or resolution of Incident), as determined by Kulipa acting reasonably;
• Failures, degradations, or fluctuations in electrical, connectivity, network, or telecommunications equipment or lines, including those caused by Client’s conduct or circumstances beyond Kulipa’s control;
• Client’s or a third party’s equipment, software or other technology not within the sole and exclusive control of Kulipa or of any person under Kulipa's control;
• Modifications to the Service not made or authorized by Kulipa in writing; 
• Arising from suspension or termination of Client’s right to use the Service;
• Arising from suspension or termination of Client’s right to use the Service;
• Force Majeure events as defined in the MSA.

If the Service Availability is missed in any month, then as Client’s sole and exclusive remedy (and Kulipa’s sole liability, being specified that Client expressly waives its rights to make any other claim for indemnity, to claim for damages or to offset any other fees payable to Kulipa), Kulipa shall provide a credit for the subsequent Service invoice as follows:

To receive Service credit, Client must notify Kulipa support within one (1) month from the time of downtime. Failure to provide such notice will forfeit the right to receive Service credit. All Service credits provided hereunder are non-refundable.

If Client terminates or elects not to renew the Agreement, such that the above Service credit cannot be applied, Kulipa will provide Client an amount in euros equal to the value of the Service credit, capped at one free month of Service Platform Access Fees under that Agreement as its sole remedy in lieu of such Service credit. For clarity, no Service credits shall be due or owing with respect to any period during which Client does not pay Fees due, owing and payable for the applicable Service.

Incident Management 

Each Party is responsible for reporting to the other any incidents it identifies in the Payment Services, particularly those negatively impacting the key components thereof (KYC, AML monitoring and screening, Card authorisations, Card issuing, Cardholder 2nd and 3rd level support). Incidents must be reported by each Party to the other as soon as reasonably possible. Client will report incidents via the channels indicated in the Order Form.

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Incident classification and severity prioritization

Kulipa will adapt its response to an incident according to its severity. Incident's severity is defined as follows: 

Response times

Depending on the severity of the incident, Kulipa will handle them according to the following target resolution times. Kulipa will provide an incident report including a root cause analysis as shown in the table below.

Exhibit 2

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All Required Information

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• Know Your Customer (KYB) related data
• Digital assets and design for the branding of the Cards (logo, Card design)
• Technical details for the integration (iOS and Android application IDs)

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