Last revised: October 25, 2021
1. These are the Terms of service (hereinafter "Terms"), on which Kikimora AG, a company incorporated under the laws of Switzerland ("We", "Us", or "Our", and, in relation to the Services, "NearPay", as applicable), having its business address at: Baarerstrasse 10 Zug, ZUG, 6300 Switzerland, provides Services to you.
2. Please read this Agreement carefully before you start to use our Services. This Agreement (always together with the documents referred to in it) tells you who We are, how We will provide the Services to you, how this Agreement may be changed or ended, what to do if there is a problem and/or other important information. If you think that there is a mistake in this Agreement or require any changes, please contact Us at firstname.lastname@example.org.
3. This Terms refer to the following additional documents (hereinafter "Additional documents"), which also apply to your use of Our Services:
b) In order to receive some of our Services, you may be asked to agree to additional terms and conditions (including those referred to in section 24) which We will notify you about at the relevant time.
4. For avoidance of any doubt, any Additional documents referred to in this Agreement are not incorporated into this Agreement.
In this Terms:
Balance means any amounts held in your NearPay account.
Business Day means a day other than a Saturday, Sunday or a public holiday in Switzerland when financial institutions in Switzerland are open for business.
Services means all products, services, content, features, technologies or functions offered by Us and all related websites (including the Website).
Fiat Currency means the currency which you send to/receive from the NearPay that is legal tender that is issued by a central bank or equivalent public authority.
Cryptocurrency means the currency which you send to/receive from the NearPay that is not Fiat Currency. NearPay Account means the account you have opened with us in accordance with these Terms.
Website means any webpage, including but not limited to https://nearpay.co, where We provide the Services to you.
3.1. In consideration of you agreeing to abide by these Terms, We grant you a non-transferable, non exclusive licence to use the Services (including the Website), subject to these Terms. We reserve all other rights.
1. About your NearPay Account
a) Your NearPay Account is not a financial account — you cannot hold Fiat Currency with NearPay. Nor is it a blockchain wallet — you cannot hold Cryptocurrency with NearPay. Your NearPay Account is a profile which you must set up before you can use Our Services.
b) Your NearPay Account allows you to pay Fiat Currency to buy Cryptocurrency into a blockchain wallet, or to sell Cryptocurrency from your blockchain wallet and withdraw Fiat Currency.
c) Certain limits may be placed on your NearPay Account depending on your country of residence, verification checks or other legal considerations. Please contact Us at email@example.com if you have any questions about these limits.
d) Unless you have Our consent in writing, you must not allow anyone to operate your NearPay Account on your behalf.
6.1. To start using Our Services, you must open a NearPay Account and provide your details as prompted.6.2. All information you provide to Us must be complete, accurate and truthful at all times. You must update this information whenever it changes. We cannot be responsible for any financial loss arising out of your failure to do so. We may ask you at any time to confirm the accuracy of your information and/or provide additional supporting documents.
6.4. One account per person or entity. You may only open one NearPay Account unless We have agreed in writing the opening of additional accounts. NearPay may refuse the creation of duplicate accounts for
the same user. Where duplicate accounts are detected, We may close or merge these duplicate accounts at Our sole discretion.
7.1. We are required by law to carry out all necessary security and customer due diligence checks on you (including any parties involved in your transaction for example, your recipient) in order to provide any Services to you. You agree to comply with any request from Us for further information and provide such information in a format acceptable to Us. In addition, you agree that We may make, directly or through any third party, any inquiries we consider necessary to validate the information you provided to Us, including checking commercial databases or credit reports. You authorise Us to obtain one or more of your credit reports, from time to time, to establish, update, or renew your NearPay Account with Us or in the event of a dispute relating to these Terms and activity under your NearPay Account.
8.1. You acknowledge and agree:
a) to change your password regularly and ensure that it isn’t reused across other online accounts; b) to contact Us at firstname.lastname@example.org in the event that anyone asks for your login credentials;
c) to follow recommended password management practices, for example: https://support.google.com/ accounts/answer/32 040?hl=en;
d) to keep your e-mail account secure. You may reset your NearPay Account password using your email address. Let us know at email@example.com immediately if your email address becomes compromised.
8.2. You must NOT:
a) disclose your NearPay Account’s credentials, which includes your blockchain wallet private key, to anyone else. Keep them safe;
b) let anyone access your NearPay Account or watch you accessing it;
c) use any functionality that allows your login details or passwords to be stored by the computer or browser you are using or to be cached or otherwise recorded.
8.3. If you suspect your NearPay Account or other security credentials are stolen, lost, used without your authorisation or otherwise compromised, you must contact Us at firstname.lastname@example.org immediately, you are also advised to change your password. Any undue delays in notifying Us may affect the security of your NearPay Account and also result in you being responsible for financial losses.
9.1. To purchase Cryptocurrency for Fiat Currency with the use of the Service, you need to log into your NearPay Account and follow the steps as they appear on screen in order to place a Cryptocurrency Purchase order. For clarity, We will receive your Fiat Currency payment as payee and are not a payment services provider.
9.2. You may be presented with one or more methods of upload for example, bank transfer, credit cards or debit cards (hereinafter "Payment Methods"). The number of Payment Methods made available to you will depend on a number of factors including where you live and your verification status with Us. Payment Methods are not part of our Services, they are services provided by third parties for example, the card provider which issued you with your credit/debit card. We cannot guarantee the use of any particular Payment Method and may change or stop offering a Payment Method at any time without notice to you.
9.3. Any payment instrument (for example, the credit card or debit card) that you use with your chosen Payment Method must be in your name.
9.4. Chargebacks on your payment instrument. If you selected a Payment Method which gives you chargeback rights (for example in relation to your credit card, you may ask your card provider to reverse a transaction on your card), you acknowledge and undertake that you will only exercise this chargeback right if:
a) we have breached these Terms; or
b) there was an unauthorised use of your payment instrument.
If we need to investigate or take any actions in connection with a chargeback raised by you, we may charge you for our costs in doing so.
9.5. Once we have received your Cryptocurrency Purchase order, We will send you a confirmation by email. Each Cryptocurrency Purchase order is given a unique transfer number and is shown in the transaction history on your NearPay Account. You should quote this transfer number when communicating with us about a particular payment order.
9.6. We may place limits on the amount you may send per transfer.
9.7. If your payment order is received by us after 5pm on a Business Day or not on a Business Day, your payment order will be deemed received on the following Business Day.
9.8. We will only process your Cryptocurrency Purchase order if We have received sufficient cleared funds from you. It is your responsibility to fund your payment order in a timely manner. We cannot be responsible for the time it takes for the money to be sent to us by your bank or payment service provider.
9.9. We carry out verification checks, and these checks may increase the time it takes to process your Cryptocurrency Purchase order. We cannot be responsible for any delays as a result of carrying out those checks. The estimated time it will take us to process of your Cryptocurrency Purchase order is notified to you when you complete the setup of your payment order.
9.10. If we are unable to complete your Cryptocurrency Purchase order, we will let you know and, if possible, the reasons for the refusal and an explanation of how to correct any factual errors. However, we will not notify you if such notification would be unlawful. We will refund your Fiat Currency payment to the payment account from which you sent it, as long as we are permitted to do so under applicable laws.
9.11. You cannot cancel your Cryptocurrency Purchase order once your payment account provider has executed the Fiat Currency payment to us.
9.12. You must make sure that the information you provide when making a Cryptocurrency Purchase order is accurate. If we have processed your order in accordance with the information you have provided to us it will be considered correctly completed even if you have made a mistake.
9.13. If you provide incorrect exchange information with your Cryptocurrency Purchase order, we will use reasonable efforts to convert the incorrect Cryptocurrency into the correct Cryptocurrency, or to increase or decrease the size of the Cryptocurrency Purchase order to match the Fiat Currency payment you have made to us, and may need to charge you a fee for that.
9.14. Payments to NearPay are payments to purchase Cryptocurrency. As such they should not be treated as " cash advances" by your card provider. If your card provider decides, as some have in the past, to treat payments from NearPay as "cash advances" that is a matter entirely between you and your card provider. We suggest you monitor charges on your card to ensure this is not happening, and if it does to challenge your card provider and/or use an alternative card for crypto transactions. In any event NearPay is not liable for any decision of your card provider to act in this way.
10. Exchange Rates
10.1. NearPay uses a number of sources to determine the price at which it sells or buys Cryptocurrency. For example, the last-traded price from a major exchange may be used (with a small spread applied, to account for the spread in the order book and slippage). Other Cryptocurrencies may have price references from https://coingecko.com/ or https://uniswap.org/. NearPay strives to provide you with competitive pricing and transparency.
11. Maintaining your NearPay Account
11.1. All your transactions (including money you have deposited and/or withdrawn) are recorded in the transaction history section of your NearPay Account. You may access this information after you log in to your NearPay Account. We have allocated a reference number to each transaction, you should quote this reference number when communicating with us about a particular transaction.
11.2. You must check your NearPay Account regularly and carefully and contact Us at email@example.com immediately if you don’t recognise a transaction or think we have made a payment incorrectly. You must tell us about any unauthorised or incorrectly executed transactions immediately, but no later than 13 months from the transaction; otherwise you may not be entitled to have any errors corrected.
11.3. You are responsible for any taxes which may be applicable to payments you make or receive, and it is your responsibility to collect, report and pay the correct tax to the appropriate tax authority.
12. Selling Cryptocurrency
12.1. After you log in to your NearPay Account, you can sell Cryptocurrency for a Fiat Currency with the use of the Services (hereinafter "Cryptocurrency Sale order"). Press "Proceed" and follow the steps as prompted on screen. We will charge you a fee for each Cryptocurrency Sale order, and will let you know the exact amount when you submit your request
12.2. You may be presented with one or more methods by which Fiat Currency will be paid to you (hereinafter "Payout Methods"). The number of Payout Methods made available to you will depend on a number of factors including where you live and your verification status with us. We cannot guarantee the use of any particular Payout Method and may change or stop offering a Payout Method at any time without notice to you, but we will ensure that you will always have at least one Payout Method available to you.
12.3. Payout Methods are not part of our Services, they are services provided by third parties for example the bank where you hold your bank account. For the purposes of a withdrawal transaction, we are a payer and not a payment service provider.
12.4. When setting up your payout request, you must ensure that the information you provide is correct and complete. We will not be responsible for money sent to the wrong recipient as a result of incorrect information provided by you. If you have provided wrong information to us, you may ask us to assist you in recovering the money, but we cannot guarantee that such efforts will be successful.
12.5. You will be notified of the estimated time it will take us to process your Cryptocurrency Sale order when you complete the setup of your Cryptocurrency Sale order.
12.6. When setting up your Cryptocurrency Sale order, you must ensure that the information you provide is correct and complete. We will not be responsible for Fiat Currency sent to the wrong recipient as a result of incorrect information provided by you. If you have provided wrong information to us, you may ask us to assist you in recovering the Fiat Currency, but we cannot guarantee that such efforts will be successful.
12.7. If we are unable to complete your Cryptocurrency Sale order, we will let you know and, if possible, the reasons for the refusal and an explanation of how to correct any factual errors. However, we are not required to notify you if such notification would be unlawful. We will refund your Fiat Currency payment to the payment account (or equivalent) from which you sent it, if we are reasonably able to and as long as we are permitted to do so under applicable laws.
12.8. You cannot cancel your Cryptocurrency Sale order once Cryptocurrency has been credited from your Cryptocurrency wallet.
12.9. You agree that your NearPay Account is subject to withdrawal limits. If your withdrawal request exceeds the current limit, we may decline your request and require you to provide additional documents to us so that we can carry out additional checks before allowing the money to be withdrawn.
13. How much will you pay?
13.1. You must pay the fees in connection with the use of our Services. We will not process your transaction until we have received the fees from you.
14. Closing your NearPay Account
14.1. You may close your NearPay Account at any time. You may cease to be bound by these Terms and close your NearPay Account at any time by contacting Us at firstname.lastname@example.org.
14.2. You must not close your NearPay Account to avoid an investigation.
14.3. You agree that you will continue to be responsible for all obligations related to your NearPay Account even after it is closed.
15. Intellectual property rights
15.1. While you are using our Services, you may use the NearPay’s Materials only for your personal use and solely as necessary in relation to those Services.
15.2. "NearPay Materials" include any software (including without limitation developer tools, sample source code, and code libraries), data, materials, content and printed and electronic documentation (including any specifications and integration guides) developed and provided by Us or our affiliates to you, or available for download from our Website. You may not, and may not attempt to, directly or indirectly:
a) transfer, sublicense, loan, sell, assign, lease, rent, distribute or grant rights in the Service or the NearPay’s Materials to any person or entity;
b) remove, obscure, or alter any notice of any of our trade marks, or other intellectual property appearing on or contained within the Services or on any NearPay’s Materials;
c) modify, copy, tamper with or otherwise create derivative works of any software included in the NearPay Materials; or
d) reverse engineer, disassemble, or decompile the NearPay’s Materials or the Services or apply any other process or procedure to derive the source code of any software included in the NearPay’s Materials or as part of the Services.
16. Our responsibility for loss or damage
16.1. We are responsible to you for foreseeable loss and damage caused by us. If we do not reasonably meet our commitments to you, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill. We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during your account sign up process.
16.2. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation.
16.3. We are not liable for business losses. If you use our Services for any commercial or business purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
16.4. We are not liable for technological attacks. We will not be liable for any loss or damage caused by a virus, or other technological attacks or harmful material that may infect your computer equipment, computer programmes, data or other proprietary material related to your use of our Services.
16.5. We have no control over websites linked to and from our Website. We assume no responsibility for their content or any loss or damage that may arise from your use of them.
16.6. We are not liable for things which are outside of our control. We (and our affiliates) cannot be liable for our inability to deliver or delay as a result of things which are outside our control.
16.7. You are liable for breaking this Agreement or applicable laws. In the unlikely event of loss or claims or costs and expenses arising out of your breach of this Agreement, any applicable law or regulation and/ or your use of our Services, you agree to compensate Us and our affiliates and hold Us harmless. This provision will remain in effect after our relationship ends.
16.8. In the event you are liable for any amounts owed to us, you agree to reimburse us. We may also recover amounts you owe us through legal means, including, without limitation, through the use of a debt collection agency.
17. Accessing Our services
17.1. We will try to make sure our Services are available to you when you need them. However, we do not guarantee that our Services will always be available or be uninterrupted. We may suspend, withdraw, discontinue or change all or any part of our Service without notice. We will not be liable to you if for any reason our Services are unavailable at any time or for any period. You are responsible for making all arrangements necessary for you to have access to our Services. If you have granted permission to a third party to access your account, we may refuse access to that third party if we are concerned about unauthorised or fraudulent access by that third party. We will give you notice if we do this, either before or immediately after we refuse access, unless notifying you would be unlawful or compromise our reasonable security measures.
18. Third-Party Products and Services; Other Users
18.1. You acknowledge that the Service will enable or assist you to access, interact with, and/or purchase services from several supported platforms and other third parties via third-party websites or
applications (collectively, "Third-Party Services"). Such Third-Party Services are not under the control of NearPay, NearPay does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services and is not responsible for any Third-Party Services. You use all Third-Party Services at your own risk, and should apply a suitable level of caution and discretion in doing so. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not with NearPay. You shall comply in all respects with all applicable terms of the Third-Party Services that you access or subscribe to in connection with the Services. If at any time any Third-Party Services cease to make their programs available to us on reasonable terms, we may cease to provide such features to you without entitling you to refund, credit, or other compensation.
19. Information security
19.1. You are responsible for configuring your information technology, computer programmes and platform in order to access our Services. You should use your own virus protection software. We cannot guarantee that our Services will be free from bugs or viruses.
19.2. You must not misuse our Services. You must not misuse our Services by introducing viruses, trojans, worms, logic bombs or other materials which are malicious or technologically harmful. You must not attempt to gain unauthorised access to our Website, our servers, computers or databases. You must not attack our Website with any type of denial of service attack. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website and/or our Services will cease immediately.
20. Linking to the Website
20.1. You may link to Our Website provided you follow certain rules. You may link to our Website, provided:
a) you do so in a way that is fair and legal and does not damage our reputation or take advantage of it; b) you do not suggest any form of association, approval or endorsement on our part where none exists; c) you do not frame our Website on any other site.
20.2. We reserve the right to withdraw linking permission without notice.
21. When we can end terminate Agreement between you and Us under these Terms or suspend our Services
21.1. We may terminate the agreement between you and Us under these Terms by giving you two months notice. We may end this Agreement and close your NearPay Account or any service associated with it by giving you two months' prior notice.
21.2. We may suspend or close your NearPay Account without notice in certain circumstances. We may at any time suspend or close your NearPay Account and/or end agreement between you and Us under these Terms without notice if:
a) you breach any provision of this Agreement or documents referred to these Terms;
b) we are requested or directed to do so by any competent court of law, government authority, public agency, or law enforcement agency;
c) we have reason to believe you are in breach of any applicable law or regulation; or
d) we have reason to believe you are involved in any fraudulent activity, money laundering, terrorism financing or other criminal or illegal activity.
21.3. We may suspend your NearPay Account for security reasons. We may suspend your NearPay Account or restrict its functionality if we have reasonable concerns about:
a) the security of your NearPay Account; or
b) suspected unauthorised or fraudulent use of your NearPay Account.
21.4. We will give you notice of suspension where possible. We will give you notice of any suspension or restriction and the reasons for such suspension or restriction as soon as we can, either before the suspension or restriction is put in place, or immediately after, unless notifying you would be unlawful or compromise our reasonable security measures. We will lift the suspension and/or the restriction as soon as practicable after the reasons for the suspension and/or restriction have ceased to exist.
21.5. You cannot use the App if this Agreement ends. On termination for any reason all rights granted to you in connection with the App shall cease, you must immediately delete or remove the App from your devices.
22. Our right to make changes
22.1. We may change these Terms by giving you at least two (2) months' prior written notice. If we do this, you can terminate this Agreement immediately by providing written notice to us during the notice period. If we do not hear from you during the notice period, you will be considered as having accepted the proposed changes and they will apply to you from the effective date specified on the notice.
22.2. In some instances, we may change this Agreement immediately. Despite section 21.1, changes to this Agreement which are (1) more favourable to you; (2) required by law; or (3) related to the addition of a new service, extra functionality to the existing Service; or (4) changes which neither reduce your rights nor increase your responsibilities, will come into effect immediately if they are stated in the change notice. Changes to exchange rates shall come into effect immediately without notice and you shall not have the right to object to such a change.
23. How we may contact you
23.1. We usually contact you via email. For this purpose, you must at all times maintain at least one valid email address in your NearPay Account profile. You should check for incoming messages regularly and frequently, these emails may contain links to further communication on our Website. If you don’t maintain or check your email and other methods of communications, you will miss emails about your transactions and our Services. We cannot be liable for any consequence or loss if you don’t do this. If we have reasonable concerns either about the security of your NearPay Account, or any suspected or actual fraudulent use of your NearPay Account, we will contact you via telephone, email, or both (unless contacting you would be unlawful or compromise our reasonable security measures).
23.2. Other ways we may contact you. In addition to communicating via email, we may contact you via letter or telephone where appropriate. If you use any mobile services, we may also communicate with you via SMS. Any communications or notices sent by:
a) Email will be deemed received by you on the same day if it is received in your email inbox before 5pm on a Business Day. If it is received in your email inbox after 5pm on a Business Day or at any other time, it will be deemed received on the next Business Day.
b) Post will be deemed received three days from the date of posting for UK post or within five days of posting for international post.
c) SMS will be deemed received the same day.
23.3. Where legislation requires us to provide information to you on a durable medium, we will either send you an email (with or without attachment) or send you a notification pointing you to information on our Website in a way that enables you to retain the information in print format or other format that can
be retained by you permanently for future reference. Do keep copies of all communications we send or make available to you.
23.4. If you need a copy of the current Agreement or any other relevant document, please contact email@example.com.
23.5. This Agreement is made in the English language. Documents or communications in any other languages are for your convenience and only the English language version of them are official.
23.6. If you have any complaints about us or our Services, you may contact us at firstname.lastname@example.org. 24. Closing Provisions
24.1. Nobody else has any rights under this Agreement. This Agreement is between you and us. No other person shall have any rights to enforce any of its terms. Neither of us will need to get the agreement of any other person in order to end or make any changes to this Agreement.
24.2. We may transfer this Agreement to someone else. You may not transfer, assign, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights and obligations under this Agreement (including the NearPay Account) without our prior written consent. We reserve the right to transfer, assign or novate this Agreement (including the NearPay Account) or any right or obligation under this Agreement at any time without your consent. This does not affect your rights to close your NearPay Account under section 21.
24.3. If a court finds part of this Agreement illegal, the rest will continue in force. Each of the paragraphs of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
24.4. Even if we delay in enforcing this Agreement, we can still enforce it later. If we delay in asking you to do certain things or in taking action, it will not prevent us taking steps against you at a later date.
24.5. This Agreement supersedes any other previous agreements. This Agreement supersedes and extinguishes all previous agreements between you and NearPay, whether written or oral, relating to its subject matter.
24.6. Which laws apply to this Agreement and where you may bring legal proceedings. This Agreement is governed by English law. Any dispute between you and us in connection with your NearPay Account and/or this Agreement may be brought in the courts of England and Wales.