These terms & conditions (“Terms”) set out the conditions under which KP Asset Management Pty Ltd (ACN 625 309 417), trading as Chillur (the “Company”, also referred to by “we”, “us” and “ours”) offers the use of its online platform (the “Platform”) to Users (Users are described below and are referred to in these Terms as “Users”, “you”, “your” and “they”).
Please read these Terms carefully. Your use of the Platform indicates your acceptance of and agreement with these Terms.
The Platform, managed by the Company, is an electronic subscription software service for users to invest in and track portfolios (“Portfolios”) created by the User through the purchase of cryptographic tokens (“Tokens”) on the Platform. Users must successfully apply to the Company for an account (“Account”), and then log in to their Account, using a password and other account information and depositing Deposited Currency which will be recorded in their Account. Users can then use the Account to track the performance of their Portfolio of Tokens.
Changes to the terms
The Company reserves the right, at its sole discretion, to vary these Terms, at any time. The Company will endeavour to notify you promptly of such variations through your Account or via email, and upon such notification it is your responsibility to review the amended Terms and decide whether to continue using the Platform.
You acknowledge that the Company may vary these Terms immediately without notice if it is reasonably necessary to do so for security reasons or to comply with law or regulation or to protect its legitimate business interests.
Your continued use of the Platform, following the posting of changes (including immediate changes made without notice) will mean that you accept and agree to the changes to these Terms. You agree that all subsequent Instructions given by you and Transactions arising from these Instructions will be subject to the Terms then in effect.
As long as you comply with these Terms as modified from time to time, the Company grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited right to enter and use the Platform.
General risk warning
Investing in cryptocurrencies and other cryptographic tokens carries a high level of risk and may not be suitable for all investors. Before deciding to purchase Tokens, you should carefully consider your objectives, financial situation, needs and investment experience and seek financial and/or legal advice from professional advisers.
The value of the Tokens purchased through this Platform may rise or fall, and will be affected by matters outside of the Company’s control. By investing in Tokens, you are susceptible to risks connected with the developing nature of the financial technology behind Cryptographic Tokens. These risks could cause you to lose all of your invested funds. In particular, Cryptographic Tokens can be lost by the loss of access to private keys, unintentional disclosure of passwords and unauthorised access, system failure or fraud.
The User confirms that in using the Platform and investing in Tokens, the User fully understands and accepts the above general risk warning and the following additional risks:
Volatility Risk: The value of the Portfolio may rise or fall. The value of the Portfolios is affected by factors outside of the control of the Company. In particular:
a. Token prices are not set by the Company and the Company does not guarantee that any price offered by Users of the Platform reflects the prevailing market rate;
b. The value of Portfolios may be affected by new cryptocurrency tokens being created or developed or other forms of digital currencies or similar commodities being developed;
c. Token prices for transactions on the Platform may deviate significantly from the prevailing market rate for individual Tokens (“off-market pricing”) due to volatility, liquidity, trading behaviour of a User or technology and/or human error;
Liquidity Risk: Tokens of the type or quantity offered may not be transferrable for value or accepted for transfer for value or payment of goods and services by any third party at the time offered or at all;
System or hardware failure, Unauthorised Access or Fraud Risk: Cryptocurrency Tokens, Deposited Currency and/or other data held by the Company on your behalf may be lost if you or the Company or any third party holding the Cryptocurrency Tokens on behalf of the Company is subject to System or hardware failure, unauthorised access or a fraud event, and in general you bear the risk of that loss; and
Counterparty risk: The company holds Tokens on your behalf and you only hold a beneficial interest in them. There is a risk that the Company may become insolvent or subject to claims, liabilities or losses which may jeopardise its ability to deliver to you some or all of the value of your Tokens or repay to you Deposited Currency.
Use of the Website and Platform: Jurisdictional Limits
The Platform is available only to Australian residents, with an Australian bank account, over the age of eighteen (18) years, and is not intended to be offered or made available to any person who resides outside of Australia.
The information in this website and the use of the Platform is not intended for any person who is not an Australian resident and is not made available to any person in any jurisdiction where its distribution or use would be contrary to any law or regulation. Nothing in this website or the Platform should be considered an offer or solicitation to buy or sell any service or product to any person in any jurisdiction where such offer or solicitation would be unlawful.
The User authorises the Company (including where necessary as the User’s agent) to:
execute the User’s Instructions to purchase or sell specified Tokens, of which the User is the beneficial owner, for the value nominated by the User. Upon execution, all Transactions will be subject to settlement and delivery, and any Instruction is irrevocable authority from the User to the Company to settle the Transaction by transferring Deposited Currency and to deduct any Commission or Fee or other amount owing to the Company or a third party under these Terms or for any other reason, including in a situation where off-market pricing has occurred;
transfer some or all of the Tokens into or out of secure storage, in accordance with the Company’s internal risk management policies;
take any steps that the Company deems reasonably necessary to ensure that the economic value held by any User in their account is maintained and/or secure;
hold Tokens on the User’s behalf; and
nominate a third party to receive Digital Currency or Tokens.
No Australian Financial Services Licence
The Company is not licensed as an Australian Financial Services Licensee and it does not offer general or personal financial product advice. Nothing in this website is intended to be or should be taken as financial, legal or taxation advice. Users should seek their own financial, legal, tax and accounting advice as to the likely outcomes of using the Platform.
Users of the Platform
Subject to the clause, Use of the Website and Platform: Jurisdictional Limits, a User must be an Australian resident individual, which has met the Company’s Account opening procedures, including, if required, any client verification procedures, and which is authorised to use the Platform by the Company.
The Company retains absolute discretion in determining who may be a User of the Platform and may cease to allow a User to transact through the Platform at any time without prior notification. The Company shall have absolute discretion in accepting or rejecting an application to be a User or any Instruction.
On registration you agree to pay for our services as set out on in the website or these Terms.
Security of Users’ Account Information and Liability for its Misuse
Users are liable for losses incurred by the Company or any other User of the Platform due to any unauthorised use of the User’s Account or Account information. Users shall not use or access any Account other than their own at any time. Users may not attempt to gain unauthorised access to the Platform, and any attempt to do so or to assist others (Users or otherwise) to do so, or distribution of instructions, software or tools for that purpose, will result in the accounts of such Users being terminated. This does not limit the right of the Company to take any other action against you.
Users may not create or use more than one Account, or open an account on behalf of another. If a User would like to open more than one Account, the User may request permission from the Company, prior to the opening of multiple Accounts. Permission will be granted or withheld in the Company’s absolute discretion.
The creation or use of multiple Accounts without obtaining such prior express permission from the Company will lead to the immediate suspension of all User Accounts on the Platform, as well as all pending activities.
A User’s ability to deposit and withdraw Deposited Currency into or from its Account may be subject to applicable anti-money laundering and counter-terrorism financing laws including the Anti-Money Laundering – Counter Terrorism Financing Act 2006 (Cth) and its rules and regulations. The Company may restrict Instructions that may violate those laws or its internal AML/CTF policies. The Company’s AML/CTF policy is located on its website. The Company may restrict any Transaction that is flagged as a suspicious activity by the Company’s internal processes and/or file suspicious-activity reports on flagged Transactions.
All Deposited Currency credited to a User’s Account will be maintained in trust in a bank account with a reputable Australian deposit-taking institution under the Company’s name or in the name of a custodian or third party appointed by the Company. Such accounts may be segregated for each User or may be a pooled account containing funds of multiple Users of the Company’s products. The Company retains absolute discretion to determine whether to use segregated or pooled accounts and the Company retains the right to switch between segregated or pooled accounts without approval from a User. However, if the Company maintains User Accounts in a pooled account, it will ensure that proper procedures are maintained at all times to identify the assets of each User. Regardless of whether pooled or segregated accounts are used, at no time will the Company mix its own funds with funds held on behalf of Users.
The Company does not pay interest on Deposited Currency. You waive any right to interest paid by the Company’s Bank with respect to your Deposited Currency. You agree that the Company is entitled to retain the interest, if any, that is paid by the bank to the Company.
Deposited Currency recorded in User Accounts may be exchanged for Tokens upon a User entering into Transactions through the Platform.
Tokens are held on your behalf and the Company limits its liability for loss or theft of Tokens
Tokens are held by the Company on a User’s behalf and the Company holds legal title in the Tokens. The User is the beneficial owner of the value of the Tokens in Deposited Currency which are recorded in the User’s Account. The Company will maintain strict procedures to ensure that the correct value and number of Tokens is recorded as attributed to the relevant User, as well as adopting reasonable security measures to reduce the risk of Tokens being misused, misplaced, misappropriated or stolen.
The company’s liability for the loss or theft of any Tokens of whose value the User is the beneficial owner is limited as set out in the Liability clause. In addition, the Company has no liability to a User for any loss or theft of Tokens which arises from any unauthorised use of the User’s Account or Account information.
Transfers of Currency
The User may deposit Deposited Currency into their Account by way of direct bank transfer or direct debit request service. Deposits made via direct debit request service are subject to the direct debit request service agreements terms and conditions, including any fees levied by the direct debit request service agreements.
Deposits and withdrawals of Deposited Currency made by way of bank transfer are subject to the relevant bank’s transfer terms and conditions, timing and processes and Users should allow for these when making or requesting such transfers.
Fees and Commissions
The User acknowledges that the Company may charge fees in respect of the Account (“Fees”) and commissions on Transactions (“Commissions”), payable to the Company or a third party. Such Fees and Commissions are published on the Company’s website and may be updated from time to time by the Company. By proceeding to transact on the Platform, the User accepts and agrees to the Fees and Commissions published at the time of those transactions. Any updated Fees and Commissions apply from the date that the updated Fees and Commissions are set out on the Company’s website. The Company will endeavour to promptly notify Users through their User Accounts of any changes to Fees or Commissions.
Tokens may be bought and sold at rates different from what may be advertised on other websites/apps/exchanges. The rates at which we purchase and/or sell Tokens will be determined by us at our absolute discretion.
The Company is authorised to deduct from the proceeds of any Transaction or from a User’s Account the Commission payable in respect of any Transaction and any other Fees levied upon the User’s Account.
Limitations on the Use of the Platform
The Company in its absolute and sole discretion may:
restrict the number of open Instructions a User may have on the Platform at any one time;
restrict the ability of a User to change or cancel a posted Instruction at any time;
periodically define the incremental values for Instructions on the Platform; and
cancel in whole or in part Instructions that do not adhere to these limitations.
The Company’s Obligations and Powers
The Company warrants and represents that:
It will use all reasonable care and skill in facilitating the matching of Instructions of the Users via the Platform to facilitate Transactions.
It shall comply with the laws and regulations relating to offering the Platform in Australia.
The Company does not warrant or represent that:
its website or the Platform is free from errors, viruses, worms, Trojans and/or malware or other technical anomalies which may cause problems or damage to User’s own computer hardware or software; or
its security systems are impregnable, although the Company does take reasonable measures to ensure the Platform and all of the Company’s systems are reasonably secured and protected against attack.
In the case of fraud or other suspicious activities, the Company will report all necessary information, including names, addresses and all other requested information, to the relevant authorities dealing with fraud and breaches of the law.
User’s Obligations and Acknowledgements
The User acknowledges that once an Instruction is placed it is irrevocable by the User, and once a Transaction is matched, it will proceed to settlement and delivery unless the Company purges the Transaction. The User acknowledges that, when a Transaction is entered, the Platform adjusts the records of value of Tokens and Deposited Currency in the Accounts.
The User represents and warrants that:
it will only operate an Account and use the Platform in accordance with the conditions set forth in these Terms;
It will comply with the laws and regulations relating to offering the Platform in Australia.
it will comply with all applicable laws of Australia and any other jurisdiction in which or from which it seeks to operate its Account and give Instructions;
the User is solely responsible for the accuracy of information, documentation, statements or representations made by you via our site;
the Company has the right to report to the police or government institutions, any activity via our Platform which is in our opinion illegal or reasonably likely to be illegal or which we are required by law to report;
all Deposited Currency amounts deposited into its Account, come from legal sources which the User owns or otherwise has full legal authority to deal with; and
the User’s use of the Platform or provision of Instructions does not infringe the rights of any third party or any applicable law;
the User understands that their Account may be frozen at any time at the request of any government authority investigating a fraud or other suspicious activity; and
the User understands that loss of the value of Tokens, Tokens and/or Deposited Currency held on behalf of Users and data referring to or belonging to Users may occur.
The User will not:
use the Platform to perform any illegal activity of any sort, including, but not limited to, money laundering or terrorism financing;
post nor submit any content that is harmful or likely to damage other people or organisations including but not limited to content that is reasonably likely to: defame or harass; or that is sexist, racist or pornographic in nature;
use any data mining robots or other extraction tools. The licence also does not permit you to metatag or mirror our website without our prior written permission. We reserve the right to serve you with notice of termination if we become aware of your metatag or mirroring of our website;
give any Instruction or do or undertake any other activity, whether or not through the Platform, which would or may negatively affect the performance of the Platform or the reputation of the Company.
The User is responsible for any tax liability arising from its account and will indemnify the Company where the Company is obliged to pay tax on behalf of the User in respect of the User’s Account.
All intellectual property rights vested on the website and Platform, including texts, images, applets, graphics, images, layouts or any other content found on or related to the Platform are owned by the Company.
Accordingly, Users may not copy, distribute, reproduce, republish, upload, transmit, modify, post, frame-in or otherwise use in any way any such content without the prior express written authorisation of the Company.
All trademarks, brands and logos generally identified either with the symbols TM or ® which are used on this website are either owned by us or we have a licence to use them. Your access to our website does not license you to use those marks in any commercial way without our prior written permission.
Any comment, feedback, idea or suggestion (“Comments”) which you provide to us through this Platform becomes our property. If in future we use these Comments in promoting our Platform or in any other way, we will not be liable for any similarities which may appear from such use.
Furthermore, you agree that we are entitled to use your Comments for any commercial or non-commercial purpose without compensation to you or to any other person who has transmitted your Comments.
If you provide us with Comments, you acknowledge that you are responsible for the content of such material including its legality, originality and copyright.
The Company may take any action available in law or equity to protect its intellectual property and to remedy any breach or potential breach of its rights, including by seeking an injunction to prevent a breach of its rights.
The website may include commentary and information on individual Tokens or bundles of Tokens, the market for and uses of Tokens and other information, interactive tools, quotes, reports and data concerning trading in Tokens and other related subject matter. Some of this information may be supplied by entities not affiliated with the Company (“Third Party Information”). To the maximum extent possible, the Company will identify and attribute all information sourced from third parties.
The Company does not explicitly or implicitly endorse or approve the Third Party Information. While the Company takes reasonable steps to ensure that the Third Party Information on its website is correct and up to date, the Company does not verify or validate such information and takes no responsibility for its content or any consequence of any person placing reliance on the Third Party Information.
Access to the Platform
The Company takes reasonable steps to keep its Platform operational. However, the Company does not warrant, guarantee or represent that:
there will be operational stability, availability or continuation of the Platform or the website;
the Platform or the website is safe from unauthorised access, fraud or other suspicious or illegal activity; or
there will be a continuation of the agreement formed under these Terms.
In addition, the Company warns you that the Platform and the website may be inaccessible at times due to:
down time and maintenance;
internet, network or server problems;
equipment failure, including the failure of third party systems; or
a Force Majeure Event.
The User indemnifies the Company and each of its directors, officers, shareholders, advisers, consultants, agents and contractors (each a “Company Indemnitee”) against all liabilities, claims, losses and expenses (“Losses”) which may be incurred or suffered by the Company Indemnitee directly or indirectly arising out of any failure by the User to maintain its Account or otherwise for failing to meet its obligations under these Terms. Such Losses may include legal fees incurred in defending or responding to such Losses and consequential losses. This indemnity will apply regardless of whether an Instruction was entered into in error, but will not apply to the extent that Losses were incurred or suffered by a Company Indemnitee due to its own fraud or wilful default.
All statutory or implied terms are excluded to the extent permitted by law. Users may have rights against the Company under statutory implied terms which cannot legally be excluded. To the extent permitted by law, the Company’s liability to the User under any statutory implied terms which cannot legally be excluded is limited to supplying relevant services again, or paying the cost of having the relevant services supplied again.
The following exclusions and limitations of liability are subject to any liability the Company has to the User under statutory implied terms or other statutory rights which cannot legally be excluded.
To the full extent permitted by law, the Company is not liable for any damages, losses, costs, loss of profit, loss of revenue, loss of business, loss of opportunity, loss of data, loss of the value of Tokens or Deposited Currency or any other direct, indirect or consequential loss to any person including the User arising out of any use of the Platform, the Company acting or failing to act on any Instruction, any failure of the Platform, any error or failure or lack of any security measures by the Company or any third party including in relation to storage or transfer of Tokens by or on behalf of the Company or for any other reason, except to the extent the loss is directly caused by the Company’s fraud or wilful default. The Company shall not be liable for any loss as a result of cancelling in whole or in part a User’s Instructions.
The Company will not be liable for any malfunction, breakdown, delay or interruption to the Internet connection, or if for any reason the Platform is unavailable at any time or for any period.
Where the Company’s website contains links to other sites 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.
Subject to the foregoing, the Company’s aggregate liability in respect of claims based on events arising out of or in connection with a User’s use of the Platform, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total amount held in the User’s Account for the User making a claim, less any amount of commission that may be due and payable to the Company in respect of such account.
A User may close its Account at any time by notification to the Company in the form determined by the Company.
The Company may suspend or terminate a User’s Account at any time immediately upon written notice to the User for any reason, including without limitation for: (1) attempts to gain unauthorised access to the Platform or another User’s Account or providing assistance to others attempting to do so; (2) overcoming software security features limiting use of or protecting any content; (3) using the Platform to perform illegal activities such as money laundering, terrorism financing, paying of ransomware, online gambling or other criminal activities; (4) breach of of these Terms including any representation or warranty being untrue; (5) failure to pay or fraudulent payment for Transactions; (6) unexpected operational difficulties; or (7) requests by law enforcement or other government agencies; (8) Abusive behaviour.
The Company may by notice to Users discontinue or modify the Platform and/or revise or terminate these Terms at any time in accordance with these Terms. Users are deemed to have accepted these revisions or termination to the extent that they continue using the Platform.
Subject to these Terms and applicable laws, within 60 days of closure of a User’s Account, whether by the User or the Company, the Company must, insofar as it is possible, in respect of any Deposited Currency held in the User’s Account, pay to the User’s nominated bank account the amount of the Deposited Currency; and
The Company is entitled to retain from any amounts (whether Token or Deposited Currency) which may otherwise be payable to the User on closure of its Account any amount payable by the User to the Company, including as Fees or Commissions on sale of Tokens under these Terms. The Company may be legally limited in the values it may refund over a certain period of time and a User shall not hold the Company liable for an inability to refund all values as expeditiously as the User may desire.
In the event the Company has made reasonable efforts to obtain instructions from the User as to where to transfer any Deposited Currency in a closed Account but is unable to obtain such instructions or is unable to transfer as instructed the Deposited Currency held in the User’s Account or otherwise held by the Company on behalf of the User, due to no fault of the Company, within 120 days of closure of a User’s Account, ownership of the Deposited Currency and the Tokens will transfer to the Company.
The User also agrees that the Company may, in its sole discretion by giving notice, terminate Users’ access to the Platform, prohibit access to the Platform and its content, services and tools, delay or remove hosted content, and take technical and legal steps to prevent the User’s access to the Platform if the Company, in its exclusive discretion, believes that the User has breached or may breach these Terms or is otherwise acting inconsistently with the intentions of these Terms.
The Company reserves the right to terminate Accounts that have been inactive for a period of 6 months or more.
Notwithstanding any suspension or termination of a User’s Account, the User remains liable for all Fees and Commissions payable in respect of the Account or any Transaction entered prior to the suspension or termination.
These Terms and User’s use of the website and the Platform will be governed by the laws of New South Wales, Australia. All Users submit to the non-exclusive jurisdiction of the courts of New South Wales.
If any provision of these Terms is deemed invalid or unenforceable by a court of competent jurisdiction, the provision limited, narrowed, construed or altered as necessary to render it valid but only to the extent necessary to achieve such validity. If necessary the invalid provision will be deleted from these Terms and the remaining provisions will remain in full force and effect.
In these Terms:
Abusive behaviour includes the use of abusive or threatening language or behaviour, whether by email or otherwise.
Account means a User’s account maintained by the Company, which allows (among other things) the User to track the performance of a Portfolio of Tokens.
Account balance means the total of fiat currency and Tokens that appears in the User’s Account.
Beneficial interest means the right to use and sell the Tokens but is not the same as having legal title in the Tokens.
Beneficial owner means the person who has the beneficial interest.
Business day means a day that is not a Saturday or a Sunday or any other day which is a public holiday or a bank holiday in Australia.
Deposited Currency means the authorised currency of Australia.
Fee means an amount levied by the Company in relation to a User’s Account. It may be levied against a particular User’s Account or in respect of a class of Accounts or across all Accounts. Fees may also be levied in respect of specific services provided to Users.
Force Majeure Event means:
◦ any act, event or occurrence (including without limitation any strike, riot or civil commotion, act of terrorism, war, industrial action, acts and regulations of any governmental or supra national bodies or authorities) that, in the Company’s opinion, prevents it from maintaining the Platform;
◦ any breakdown or failure of transmission, communication or computer facilities, interruption of power supply, or electronic or communications equipment failure;
◦ any unauthorised access, suspicious activity or other interference in respect of the Platform; or
◦ the failure of any relevant supplier, financial institution or agent that, in the Company’s opinion, prevents it from maintaining the Platform or otherwise performing its obligations.
Instruction means allow the Company to execute a transaction for the value of the Deposited Currency arising from the continued use of the Platform.
Platform means the Chillur website and associated software which facilitates Instructions and Transactions.
Sanctions law means the Charter of the United Nations Act 1945, Autonomous Sanctions Act 2011, associated rules and other instruments.
Transaction means the purchase or sale of Tokens owned and held by the Company, at a price of its discretion arising from an Instruction.