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v2 - January 2024
LEGAL NOTICE
Kiln, french company (société par actions simplifiée) with a share capital of € 7.021,52 registered in the Paris R.C.S. register under the number 839 230 125 and whose head office is located at 14 Avenue Trudaine, 75009, Paris, France
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING OUR WEBSITES, APIs OR OTHER PRODUCTS OR SERVICES THAT HAVE LINKED TO THESE TERMS AND CONDITIONS, YOU AGREE TO BE BOUND BY THEM INCLUDING ALL TERMS THAT MAY BE INCORPORATED BY REFERENCE TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. Control, for the purposes of this definition, means the ownership of more than 50% of the voting shares or the ability to direct the management or policies of the entity, whether through ownership, contract, or otherwise.
Authorized User means employees, contractors, or agents authorized by Customer or its Affiliates to access and use the Nodes under these T&Cs.
Blockchain means a digital ledger in which transactions made with a Digital Asset are recorded chronologically.
Commission Rate means the specified percentage of Staking Rewards fixed by Fireblocks which the Customer has to pay for the Service provided.
Customer’s Cryptocurrencies means the Digital Assets staked by the Customer and its End Users on the Nodes under these T&Cs.
Customer Materials means any data, information, and other materials that Customer or its Authorized Users submit to the Nodes, including, without limitation, the personal information (such as name, email address, and other identifying information) of Customer and its Authorized Users.
Digital Asset means digital currencies, cryptocurrencies, decentralized application tokens, protocol tokens, smart contracts, Blockchain-based assets, stablecoins, crypto assets and other crypto finance and digital assets and instruments.
Documentation means the manuals, specifications, and other materials describing the functionality, features, operating characteristics, and use of the Nodes as Kiln may make available to Customer or its Authorized Users from time to time, whether in a written or electronic form.
End Users means the customers of the Customer and its Affiliates.
Fees mean the charge for the Customer’s access to and use of the Services calculated by applying the Commission Rate.
Fireblocks means Fireblocks Ltd, an Israeli limited liability company having its principal place of business at Floor 25, 8 Yitzhak Sade Street, Tel Aviv, Israel 6777508.
Force Majeure Events means acts of God, acts of any governmental body, war, insurrection, sabotage, pandemic, armed conflict, terrorism, embargo, fire, flood, strike or other labour disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
Infringement Claim means an allegation that the Customer’s access to and use of the Nodes in compliance with these T&Cs infringes or misappropriates any third party intellectual property rights.
Node(s) means a copy of the distributed ledger which serves as a communication point that executes various essential network functions, such as creating, receiving, or sending information and validating transactions within a Blockchain supported by server hardware and software.
Platform means Kiln’s proprietary computational infrastructure or platform that it uses to perform the Services.
Protocol Rules means all applicable rules of the relevant Blockchain Applicable Protocol.
Representatives means, with respect to any Person, the directors, officers, employees, financial advisors, attorneys, accountants, consultants, agents and other authorized representatives of such Person, acting in such capacity.
Services mean staking services, which can be more particularly described as the locking, for a fee, of a certain amount of Digital Assets within a wallet (or another medium) to validate transactions on the blockchain, based on proof of stake mechanism to be provided by Kiln as described in these T&Cs. For the avoidance of doubt, the Services will be enabled through the Fireblocks platform.
Slashing Penalty means any penalty assessed by a network protocol for unavailability or slow, incorrect or malicious performance.
Staking Rewards means any Digital Asset due under the protocols for the relevant Blockchain to Kiln as a result of the Customer’s use of the Service, including block rewards, endorser rewards, and transaction fees, and Digital Asset rewards earned by Customer’s End Users and delegators, to the extent such End Users or delegators have staked their Digital Assets on the Nodes licenced to the Customer by Kiln under these T&Cs.
2. KILN STAKING SERVICES
Kiln is a “staking as a service” platform. It enables the Customers and End Users who hold Digital Assets to stake them directly on the Kiln platform. These T&Cs between Kiln and the Customer govern the execution and receipt of the Kiln Staking Services provided by Kiln to the Customer.
3. RISKS ACCEPTANCE
The Customer shall acknowledge the following aspect in relation to:
Regulatory changes. Blockchain technologies and regulation related to anti-money laundering and financial regulations. The Customer(s) need(s) to acknowledge that certain Services, including their availability, could be impacted by one or more regulatory requirements.
Tax. The Customer(s) hereby accepts the fact that the Staking Rewards may be considered tax events according to the legislations under which the Customer is subject to taxation. Consequently, Kiln cannot be liable for any losses in this regard.
Cybersecurity. Ransomware organizations may attempt to interfere with our products, including service attacks, spoofing, malware attacks etc. Customer must take any steps that Kiln may reasonably require to reduce, manage, or report any cybersecurity breach. Kiln shall not be liable in case of unauthorised access, breach of firewalls or other hacking by third parties unless caused, fully or in part, by Kiln’s fraud, negligence or willful misconduct.
4. APPLICABILITY OF THE T&Cs
The Customer will have access to the Services via Fireblocks’ platform where it will be required to accept these T&Cs which will constitute a legally binding agreement between Kiln and the Customer. The latter acknowledges having read them carefully, understood and accepted them in their entirety. This contractual set determines the contractual relationship between Kiln and the Customer in its completeness. These T&Cs will be available through the Fireblocks’ platform and where the Customer will have the ability to acknowledge and accept the T&Cs. In case of any questions, reservations or comments related to the present T&Cs, the Customer will have the ability to contact Kiln directly on the following email address: legal@kiln.fi.
Acceptance of these T&Cs is necessarily full and complete. Any Customer who does not agree to be bound by these T&Cs will not be able to access the Services. Kiln retains the right to modify, at any time and at its reasonable discretion, these T&Cs. Kiln will provide Customer with at least thirty (30) days prior written notice of any modification or discontinuation of Services (or portion thereof) that would result in a material diminution of features of the Services offered to Customer as of the Effective Date; provided, however, that Customer may, at its option, elect to terminate this Agreement as a result of the aforementioned modification or discontinuation of Services (or portion thereof) pursuant to Clause 7.1(i). It is the Customer's responsibility to review the revised T&Cs and to explicitly accept them before accessing the Services again.
5. SERVICE LEVELS
5.1 Service. Kiln shall host the Nodes, periodically monitor the Nodes to optimize the performance thereof and provide the Services in a manner that meets or exceeds the Service Levels set out in these T&Cs. Kiln shall perform all Services not otherwise subject to a Service level required following leading industry standards.
5.2 Minimum Service Level. On all protocols supported by Kiln in Mainnet and listed natively in the Fireblocks console, Kiln guarantees a 99% uptime over each one (1) year period and 95% uptime over any thirty (30) day period starting from the moment the Customer has issued their staking transaction and it has been activated by the Blockchain network.
5.3 Failure of the Service. To the extent that Kiln went below the aforementioned guaranteed rate and provided that the Customer has submitted a written refund notification to Kiln within 90 days, Kiln shall reimburse the Customer for the Staking Rewards lost during the relevant Service downtime. The Customer shall be entitled to receive such refund that will be paid by Kiln within 90 calendar days following the reception of written refund notification from the Customer. This obligation is subject to the cap on Kiln’s maximum liability set out in Clause 12.2.
5.4 Processing Exits
Ethereum validator unstaking
There are two processes.
- Customers, on behalf of an End User, can send an exit request message to Kiln. Kiln has an SLA to process this type of request within 12h and the validator exit message is sent on-chain.
- Customers can retrieve from Kiln's API a pre-signed exit message. This is a message that the Customer can broadcast to exit their validator, without any involvement from Kiln.
dPOS protocols unstaking
The Customer, on behalf of an End User, can unilaterally unstake by sending an unstake transaction request. This transaction request will then be processed along with any other similarly prioritized blockchain transactions.
Once an exit request has been broadcast on-chain, the exiting delays of the validator are those of the underlying blockchain network and not controlled by Kiln.
6. ACCESS AND USE OF THE NODES
6.1 Access to the Nodes. Kiln hereby grants Customer and its Affiliates a worldwide, non-exclusive, non-assignable right and license, without the right to grant sublicenses (save to their End Users), to access and use, subject to the provisions of these T&Cs, the Services and Nodes and any Documentation that Kiln may provide in connection therewith to develop, launch, and manage the Nodes for Customer’s business purposes which includes the deposit and staking of Digital Assets which the Customer and/or its Affiliates hold on a custodial basis from End Users.
6.2 Custody of the Customer’s Cryptocurrencies: Kiln operates non-custodial services, which means that Kiln does not store and does not have access to the Customer’s Cryptocurrencies or their private keys.
6.3 Modifications. Kiln reserves the right to modify the Services and Nodes from time to time by adding, deleting, or modifying features to improve the Customer experience or for other business purposes subject to the provisions of Clause 4. Kiln further reserves the right to discontinue any feature of the Nodes or any portion thereof at any time during the Term at Kiln’s reasonable discretion. Kiln will provide Customer with at least thirty (30) days prior written notice of any modification or discontinuation of Services (or portion thereof) that would result in a material diminution of features of the Services offered to Customer as of the Effective Date; provided, however, that Customer may, at its option, elect to terminate this Agreement as a result of the aforementioned modification or discontinuation of Services (or portion thereof) pursuant to Clause 7.1(i). Notwithstanding the foregoing, Kiln shall provide the Services to the Minimum Service Level.
6.4 Slashing Penalties. If a cryptocurrency network subjects staked Digital Assets to a Slashing Penalty as a result of Kiln, as the Node Operator, incorrectly validating a transaction, Kiln will replace such Digital Assets at no additional cost and as a service included in the Fees, subject to the Limitations detailed in Clause 6.9. In addition, Kiln shall immediately, on demand, reimburse the Customer for any Slashing Penalties imposed as a result of the malicious operation of the Nodes by Kiln and breach by Kiln of the Protocol Rules. This obligation is subject to (i) the liability cap on Kiln’s maximum liability set out in Clause 12.2 and (ii) the exclusions outlined in Clause 6.5.
6.5 Exclusions. Unless caused in part or in the whole by Kiln’s gross negligence, willful misconduct or fraud, Kiln shall not be responsible nor liable for any failure in the Services, missed Staking Rewards, Slashing Penalties or any other damages or losses resulting from, caused by or attributable to (i) protocol-wide malfunction of a supported Blockchain, (ii) bug in validator customer software, or malfunction by other validators than those operated by Kiln (except for smart contract software utilized or developed by Kiln), (iii) Customer’s delay in or failure to take any actions upon which Kiln’s performance is dependent; (iv) Customer’s failure to use the Services following Kiln’s requirements, including without limitation, the Documentation; (v) Customer’s failure to act in accordance with the network protocol; or (vi) Customer's products or services, or Customer’s (or its Authorized Users’ or Representative’s or End User’s) gross negligence, willful misconduct. For the avoidance of doubt, Kiln will not be liable for correlated Slashing Penalties caused by non-Kiln validators slashing on the Ethereum Blockchain.
6.6 Restrictions on Use. The Customer will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than its Authorized Users to access and use the Nodes; (ii) allow its Authorized Users to share with any third party his or her access credentials; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Nodes; (iv) modify, adapt, or translate the Nodes; (v) make any copies of the Nodes; (vi) except as permitted in Clause 6.1, resell, distribute, or sublicense the Nodes; (vii) remove or modify any proprietary markings or restrictive legends placed on the Nodes; (viii) use the Nodes in violation of any applicable law, rule, or regulation; (ix) use any robot, spider, scraper, or other automated means to access the Nodes for any purpose without Kiln’s express written permission, or (x) introduce, post, or upload to the Nodes any harmful code.
6.7 Staking Rewards: All Staking Rewards will be payable by Kiln to the Customer in the same Digital Assets in which the relevant Customer cryptocurrencies are denominated.
6.8 Cancellation of Contracts: if the Customer does not deposit sufficient Customer Cryptocurrencies on a Node to enable Kiln to perform the Services, Kiln may terminate the relevant contract and, in these circumstances, the Customer shall un-delegate their staked Cryptocurrencies from Kiln’s validators. Where the Customer and Kiln are in dispute regarding the Fees, Kiln shall have the right to refuse to accept an order placed by the Customer under the terms of these T&Cs.
6.9 Suspension: Kiln may, without notice, temporarily or permanently suspend access to the Services in the event of (i) material breach by the Customer of these T&Cs; (ii) fraudulent, criminal or malicious behavior by the Customer, which, without prejudice to the generality of the foregoing shall include suspicious transactions on the account for which the Customer is not able to provide a reasonable explanation, distribution of the Customer login and password to third parties, use of several accounts; (iii) the introduction of legal or regulatory obligations, court decisions, injunctions or any administrative request that would justify suspending the Services immediately; (iv) interference by the Customer that may cause damage or degradation of Kiln's or third parties' equipment; (v) late payment of an invoice for more than thirty (30) calendar days; (vii) bankruptcy, reorganization, liquidation, dissolution or similar proceedings against the Customer. Before or immediately after suspension, Kiln shall inform the Customer of the reason for the suspension by email to the e-mail address associated with the account, indicating (i) the reason for the suspension, (ii) its scope, (iii) its permanent or temporary nature and, in the latter case, (iv) its duration.
6.10 Liability for Fees during suspension: The Customer shall remain liable for all the Fees during the suspension period except to the extent that the suspension is pursuant to Clause 6.9(iii) or due to Kiln’s gross negligence, fraud or willful misconduct.
7. TERMINATION
7.1 Termination. Either Party may terminate these T&Cs upon the happening of each of the following events: (i) at any time, for any reason, upon thirty (30) days advance written notice to the other Party, (ii) upon written notice to the other Party if the other Party materially breaches these T&Cs and fails to cure such breach within thirty (30) calendar days of its receipt of a written notice identifying the breach (for “Cause”), or (iii) immediately upon written notice if Kiln’s provision of the Services or Customer’s use of the Nodes infringes or misappropriates the intellectual property of a third party or infringes the privacy rights of a third party. Kiln may terminate these T&Cs for Cause immediately upon written notice if: (i) Customer uses the Nodes in any manner that violates applicable law, (ii) Customer transmits or attempts to transmit any harmful code to the Nodes, or (iii) Kiln reasonably determines that it is appropriate following an Infringement Claim. Customer may terminate these T&Cs for Cause immediately upon written notice if: (i) a bankruptcy, reorganisation, liquidation, dissolution or similar proceedings is started against Kiln, or (ii) Customer’s use of the Services would constitute a violation of applicable law.
7.2 Effect of Termination. Upon termination of these T&Cs for any reason, Customer shall immediately cease all access to and use of the Nodes, provided, however, that for thirty (30) days following any termination, Kiln shall permit Customer to access the Nodes solely to download its Customer Materials and remove any staked Digital Assets. After thirty (30) days, Kiln shall have no obligation to return to Customer any Customer Materials or grant Customer any further access to the Nodes. If these T&Cs are terminated by Kiln, or terminated by Customer for Cause, Kiln will issue Customer a refund for any Fees that have been pre-paid, which refund will be pro-rated to the effective date of termination. If Kiln terminates these T&Cs for Cause, Customer shall not be entitled to such a refund.
7.3 Survival. The following provisions will survive termination of these T&Cs: Clause 1 (“Definitions”), Clause 7.2 (“Effect of Termination''), this Clause 7.3 (“Survival”), Clause 9 (“Intellectual Property”), Clause 10 (“Confidentiality”), Clause 11 (“Warranties;”), Clause 12 (“Limitation of Liability”), Clause 13 (“Indemnification”), and Clause 14 (“General Provisions”).
8. COMMISSIONS FEES
8.1 Kiln will be entitled to receive the percentage of the Staking Rewards (“Commission Fees”), which will be payable, as the case may be, either through the smart contract functionality or such Commission Fees will be retained directly by Kiln, depending on the Applicable Protocol. The Customer explicitly authorizes Kiln to deduct and levy fees from the Staking Rewards due to the Customer. If applicable, the Customer will pay on top any value added taxes (VAT), any tax in the nature of a withholding tax and any duties payable in respect of the fees due hereunder or otherwise arising in respect of these T&Cs.
8.2 Commission Fees. The Customer agrees to pay Kiln all Fees due and payable. All Fees are exclusive of all sales, use, and other applicable taxes, all of which shall be for the Customer’s account. If such taxes apply to the Services, Kiln shall charge Customer any such taxes and indicate such taxes as a separate line item in Customer’s invoice. Unless expressly provided in these T&Cs, all Fees are non-refundable.
8.3 Payment Method. Where Fees are not paid directly to Kiln under the relevant protocol, all Fees due hereunder shall be invoiced monthly via email to the billing contact. All payments of undisputed amounts are due within thirty (30) days of the date of receipt of the invoice.
8.4 Suspension for Non-Payment. In addition to Kiln’s other rights and remedies under these T&Cs and at law, Kiln may suspend Customer’s access to the Service if an invoice remains unpaid for more than thirty (30) days past the date on which it is due. Kiln will use commercially reasonable efforts to notify Customer and provide Customer with an opportunity to provide updated payment information before suspending access. During the suspension period, Kiln shall not be responsible for any Slashing Penalties relating to the Node(s).
9. INTELLECTUAL PROPERTY
9.1 Trademarks: The trademarks, service marks, and logos used and displayed on the Platform are registered and/or unregistered trademarks or service marks of Kiln or its licensors (collectively, the “Trademarks”). Nothing in these T&Cs should be construed as granting any license or right to use the Trademarks without Kiln’s prior written consent specific for each such use.
9.2 Ownership. Subject to Clause 6.1 as between the Parties, all rights, titles, and interest in and to the Nodes and the Documentation, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of Kiln. All rights, titles, and interests in Customer Materials, including all modifications, improvements, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property.
10. CONFIDENTIALITY, SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF AND USE OF DATA
10.1 Confidentiality. At all times, the receiving Party will protect and preserve the Confidential Information of the disclosing Party as confidential, material, non-public, business-related information, written or oral, whether or not it is marked as such, that is disclosed or made available to the receiving Party, directly or indirectly, through any means of communication or observation (“Confidential Information”) using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under these T&Cs. The receiving Party may disclose, distribute, or disseminate the disclosing Party’s Confidential Information to any of its Representatives. The receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives without the prior written consent of the disclosing Party. The receiving Party will always remain responsible for any violations of these T&Cs by any of its Representatives. If the receiving Party is legally compelled to disclose any of the disclosing Party’s Confidential Information, the receiving Party will promptly provide the disclosing Party prior written notice of such requirement if legally permitted to do so. The receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed and will use its reasonable best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
10.2 Specific Performance and Injunctive Relief. The receiving Party acknowledges that in the event of a breach of Clause 10.1 by the receiving Party or its Representatives, substantial injury could result to the disclosing Party for which monetary damages will not be a sufficient remedy for such breach. Therefore, if the receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Clause 10.1, the disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Clause 10.1. The disclosing Party will not be required to post a bond or other security in connection with granting any such relief.
10.3 Use of data. Kiln may collect and store information regarding the Customer and share it with its Affiliates, agents and service providers in order to: (i) provide the Service; and (ii) manage the services including, but not limited to, Customer on-boarding, financial and operational management and reporting, risk management, legal and regulatory compliance and service management. Kiln shall require any Affiliate, agent or service provider to which it has disclosed Data pursuant to this section to comply with the confidentiality and data protection provisions in accordance with the 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).
11. WARRANTIES
11.1 Mutual Warranties.
Each Party warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization, has the right to enter into these T&Cs and holds all licenses, permissions and authorizations necessary to conduct its business in each jurisdiction in which it operates; (ii) the execution, delivery, and performance of these T&Cs and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding T&Cs of such Party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under these T&Cs shall comply with all applicable laws, rules, and regulations, including, without limitation, all applicable national and international laws, regulations, notices, and guidelines relating to information privacy.
11.2 Kiln Representations and Warranties. Kiln further represents, warrants and covenants to Customer that it will provide the Nodes and the Services in accordance with the Protocol Rules in such a manner as to minimize any Slashing Penalties. 12. LIMITATION OF LIABILITY12.1 Indirect Losses: neither Party shall be liable to the other Party, whether in contract, tort, equity or otherwise, for any indirect, incidental, consequential, special, punitive or exemplary losses, lost profits or lost revenues (even if such losses are foreseeable, and regardless of whether a Party has been advised of the possibility of such losses) resulting from, arising out of, caused or incurred by, or related to each Party’s performance of its obligations under these T&Cs.
12.2 Maximum Liability: Either Party’s maximum liability for any direct damages shall in no event exceed, in the aggregate, the higher of (i) the total Fees that Customer has paid to Kiln within the twelve (12) months immediately preceding the events giving raise to any claim; or (ii) USD 1,000,000. In addition, Kiln shall not be liable for any indirect damages, lost profits, or damages resulting from lost data or business interruption resulting from the use or inability to access and use the Nodes provided there has been no gross negligence, willful misconduct or fraud on the part of Kiln. Nothing in this Clause 12.2 excludes or limits either Party's liability where such limitation is prohibited by applicable law, rule, or regulation.
12.3 Authorized Users: Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Nodes using any of Customer’s or its Authorized Users’ access credentials.
12.4 Security and Backup: Kiln shall have no liability for any loss arising from the loss of a password by the Customer or the theft of a password from the Customer (including by its Authorized Users) or from the resulting account impersonation. The Customer shall take all measures to secure access to the login and password of its account. The Customer is responsible for the actions of any non-authorized third party related to the account. The Customer agrees to report any fraudulent use of its account, log in or password to Kiln promptly.
13. INDEMNIFICATION
13.1 Indemnification by Customer. Customer will indemnify, defend, and hold Kiln, its Affiliates, licensors, and hosting providers, and each of their respective Representatives harmless from and against any damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by any of such indemnified parties in connection with any third-party action, claim or proceeding (each, a “Claim”) arising from or relating to (i) Customer’s breach or violation of these T&Cs; or (ii) Customer’s gross negligence or willful misconduct.
13.2 Indemnification by Kiln. Kiln will indemnify, defend, and hold Customer and its Representatives harmless from and against any Losses incurred by any such indemnified parties in connection with any third-party Claim arising from (i) Kiln’s gross negligence, fraud or willful misconduct, (ii) Kiln’s breach or violation of these T&Cs; (iii) an Infringement Claim. If Kiln reasonably determines that the Nodes is likely to be the subject of a third-party Infringement Claim, Kiln will have the right (but not the obligation), at its own expense, to (i) procure for Customer the right to continue to use the Nodes as provided in these T&Cs; (ii) replace the infringing components of the Nodes with other components with equivalent functionality; or (iii) suitably modify the Nodes so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to Kiln on commercially reasonable terms, Kiln may terminate these T&Cs without further liability to Customer and refund any Fees that have been pre-paid. Notwithstanding the foregoing, Kiln is not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any third-party Infringement Claim to the extent the Infringement Claim arises from or is based upon (i) Customer’s use of the Nodes not in accordance with the Documentation or these T&Cs; (ii) any unauthorized modifications, alterations, or implementations of the Nodes made by or on behalf of Customer (other than by Kiln); or (iii) use of the Nodes in a manner or for a purpose for which it was not designed. This Clause 13.2 states Customer’s sole and exclusive remedy, and Kiln’s sole and exclusive liability, regarding any third-party Infringement Claim.
13.3 Procedure. The indemnification obligations outlined in Clause 13.1 and Clause 13.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim, provided, however, that any failure of the indemnified Party to provide prompt written notice according to this Clause 13.3 shall excuse the indemnifying Party only to the extent that it is prejudiced thereby; (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
14. GENERAL PROVISIONS
14.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under these T&Cs without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer these T&Cs to an Affiliate or in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Clause will be null and void. Subject to the foregoing, these T&Cs will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
14.2 Waiver. No failure or delay by either Party in exercising any right or remedy under these T&Cs will operate, or be deemed to operate, as a waiver of any such right or remedy.
14.3 Governing Law and Jurisdiction: These T&Cs and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of France. Each Party irrevocably agrees that the courts of Paris, France, shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these T&Cs or its subject matter or formation.
14.4 Independent Contractors. The Parties are independent contractors. Neither Party will be deemed an employee, agent, partner, joint venture, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to enter into obligations on behalf of the other Party.
14.5 Severability. If any provision of these T&Cs is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of these T&Cs will remain in full force and effect. Any provision of these T&Cs, unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
14.6 Force Majeure Events. Neither Party will be deemed in breach of these T&Cs for any failure or delay in performance to the extent caused by Force Majeure Events. If Kiln is unable to provide the Services due to a Force Majeure Event, the Customer shall not be obliged to pay the Fees for the relevant period.
14.7 Third-Party Beneficiaries. Save as expressly provided otherwise, the Parties agree that there are no third-party beneficiaries under these T&Cs.
14.8 Publicity. All publicity regarding these T&Cs will be mutually coordinated and approved in advance in writing by the Parties.
14.9 Notices. Any notice under or in connection with these T&Cs shall be in writing and shall be sent by nationally recognised (in the country of the sending Party) overnight courier or certified mail (return receipt requested) to the address for notice set forth above or otherwise provided to the other Party, or to the current address of Kiln’s corporate headquarters set forth on Kiln’s corporate website at www.Kiln.com (in the case of notice to Kiln).
14.10 Export rules: The Customer(s) shall comply, at their own expense, with all laws that apply to or result from their obligations under these T&Cs. By accessing and using the Services, the Customer represents and warrants that it is not on any trade or economic sanctions lists, such as (but not limited to) the UN Security Council Sanctions list, designated as a “Specially Designated National” by OFAC (Office of Foreign Assets Control of the U.S. Treasury Department) or placed on the U.S. Commerce Department’s “Denied Persons List”.
Kiln reserves the right to select the markets and jurisdictions where it operates and may restrict or deny access to the Services in certain countries, states or territories.