KRAKEN AFFILIATE AGREEMENT

By submitting your application for the Kraken Affiliate program you agree to be bound by this AFFILIATE AGREEMENT (this “Agreement”) between Payward, Inc., a Delaware corporation (“Company”) and you (“Affiliate”). Company and Affiliate may be collectively referred to as the “Parties,” and individually as a “Party.”

RECITALS

WHEREAS, Company, through its affiliates, operates a virtual currency exchange (the “Kraken Exchange”) and may offer other related products, services, features, or programs (together with the Kraken Exchange, the “Kraken Services”), whereby approved and onboarded customers may trade certain fiat currencies for virtual currencies and virtual currencies for other virtual currencies, in each case pursuant to the terms and conditions applicable to the relevant Kraken Services, which may include Company’s Terms of Service and any additional, different, or supplemental terms, conditions, policies, or program-specific agreements or requirements (collectively, the “Terms”), as in effect and updated from time to time in its sole discretion and set forth on Company’s website; and

WHEREAS, the Parties desire to enter into a relationship whereby Affiliate will have the opportunity to refer potential customers to the Kraken Exchange, as specified herein, in exchange for a percentage of the fees charged by Company and its affiliates to such customers.

NOW, THEREFORE, in consideration of the covenants contained herein, the Parties agree to the following:

Designated Service. This Agreement relates to the service(s), which may be updated from time to time in Company’s sole discretion, identified and selectable on Affiliate’s dashboard as made available by Company (the “Dashboard”). Each selected service is referred to herein as a “Designated Service.”

Registration Process. Affiliate will provide the following information though the Dashboard: the name, e-mail, and phone number of the Affiliate who will be designated contacts in connection with this Agreement.

Referral Process.

Links. Company will provide Affiliate website addresses that potential customers may use to enter the websites for the Designated Service(s) (the “Link(s)”). Affiliate will provide the Links to potential customers using the methods and/or media as set forth in the Designated Service.

Linked Referrals. The Links will direct potential customers to the websites for the Designated Service(s) (the “Company Websites”), where they will have the opportunity to become customers of the same.

Customer Referrals. Each potential customer that becomes a customer of a Designated Service after arriving at the Company Website of the Designated Service via the applicable Link is referred to herein as a “Customer Referral.” A Customer Referral with respect to each Designated Service excludes any customer that is an Existing Customer of such Designated Service at the time of such referral. An “Existing Customer” means any customer that is: (i) already a customer of the Designated Service, (ii) a beneficial owner of a customer of the Designated Service, or (iii) an entity that controls, is controlled by, or is under common control with, the customer of the Designated Service, in each case, whether or not such customer is active, or any entity with whom the Company or one of its affiliates is then negotiating to provide such Designated Service.

Existing Customers. For the avoidance of doubt, a potential customer of one Designated Service can become a Customer Referral of such Designated Service, notwithstanding that such person is an Existing Customer of the other Designated Service (if applicable).

No Obligation. The Company will have the sole discretion whether to accept a referral as a customer.

Affiliate Representations and Warranties.

Affiliate will not make any representations or warranties, including but not limited to false or misleading representations with respect to the specifications, features, or functionality of the Designated Service(s). Affiliate agrees that it will not impose or collect any fee of any kind, including but not limited to an application fee or referral fee, from any potential customer for any product or service offered by Company or its affiliates, including the Designated Service(s).

If Affiliate displays either Link on a website, Affiliate represents and warrants that such website does not contain or link to any content, web page or site that contains any:

• pornography or other sexual or adult material;
• hate propaganda or material that encourages or promotes illegal activity or violence;
• content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents, or any other third-party intellectual property, contract, privacy or publicity rights; material that violates any local, state or national law, rule or regulations;
• viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines; or
• material that is threatening, abusive, harassing, defamatory, obscene, profane or indecent.

Affiliate represents and warrants that it will not undertake any deceptive or fraudulent methods to increase Customer Referrals. If Affiliate is found in violation of this section, this Agreement will be immediately terminated and void, and all fees will be canceled and forfeited.

Affiliate represents and warrants that it will comply with all local, state and federal laws and regulations governing its actions under this Agreement. Without limiting the foregoing obligation, Affiliate will comply with all applicable laws that govern financial promotions, and marketing emails, including, but not limited to UK FCA rules and guidelines, the CAN SPAM Act of 2003 and other anti-spam laws.

Affiliate represents and warrants that it will not “frame” any Company content on any website.

Affiliate represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.

Pricing and Payment.

Payment of Fees. Company will pay to Affiliate an amount calculated in accordance with this Section (the “Weekly Fee”) on a weekly basis. The Fee will be payable as set forth in the Designated Service.

Calculation of Fees. Affiliate may access the fee schedule, as may be updated from time to time in Company’s sole discretion, through the Dashboard. With respect to a revenue share of a Designated Service, the Weekly Fee equals the Designated Service Percentage multiplied by the Weekly Customer Revenue for that Designated Service.

“Designated Service Percentage” means the percentage set forth in the Designated Service for a Designated Service.

“Weekly Customer Revenue” means the revenue earned by the Company and its affiliates attributed to Customer Referrals for the applicable Designated Service for any calendar week. For the avoidance of doubt, the calculation of Weekly Customer Revenue for a Designated Service will not include revenue attributed to Customer Referrals for the other Designated Service. With respect to a cost per action Designated Service, the fee is set forth in the Designated Service.

Report. Company will provide Affiliate a report setting forth the Weekly Customer Revenue and the Weekly Fee for each Designated Service (the “Report”). The Report will be provided to Affiliate through the Dashboard within seven (7) days of the end of the week to which it relates. The Report will not include any customer identifying information. Weekly Customer Revenue data will be provided on an aggregated basis.

No Audit. To the maximum extent permitted by applicable law, Affiliate has no right to audit, inspect, examine, or access Company’s (or its affiliates’ or vendors’) books, records, accounts, systems, methodologies, source data, or supporting documentation relating to the Program, Customer Referrals, Weekly Customer Revenue, or Weekly Fees, and Company has no obligation to provide customer-level data or other back-up beyond the Report. Except for manifest error (or as otherwise required by applicable law), Company’s tracking, referral attribution, eligibility determinations, clawback, reversal, withholding, adjustment, and fee calculations are final and binding.

Discounts and Refunds. The Company and its affiliates may, in their sole discretion, provide discounts and refunds to their customers. The Weekly Fee will be calculated on the basis of revenue earned by Company and its affiliates, taking into account any discounts or refunds. If a refund is issued after the Weekly Fee relating to that refunded transaction has been remitted to Affiliate, the next payment of the Weekly Fee to Affiliate will be reduced accordingly.

Adjustments and Clawback Rights. If Company determines that any Weekly Fee was paid, credited, or calculated based on (i) an invalid referral, (ii) inaccurate, incomplete, or misleading information or data (including tracking or attribution data), (iii) fraudulent activity as determined by Company in its sole discretion, and/or (iv) error (including technical, tracking, or calculation errors), then Company may, at any time and without limiting any other right or remedy: (a) exclude the affected Customer Referrals and associated revenue from Weekly Customer Revenue; (b) revise any Reports and retroactively recalculate Weekly Customer Revenue and Weekly Fees; (c) reverse, cancel, or claw back any Weekly Fee previously paid or credited; (d) withhold, delay, suspend, and/or place in reserve any payment (in whole or in part) pending review or investigation; and/or (e) set off any amounts owed by Affiliate under this Agreement against any amounts payable to Affiliate under this Agreement.

Taxes. Affiliate will pay all sales, use, withholding and other taxes, duties or fees imposed by any applicable laws and regulations as a result of the payments it receives under this Agreement.

License and Ownership. Company grants Affiliate the non-exclusive right to use the Company trademarks, including but not limited to any “Kraken” trademarks, (collectively, the “Marks”) for the purpose of establishing the Links to a Designated Service and for no other purpose. Affiliate acknowledges that the Company retains all ownership, right, title, and interest in and to its trademarks (including the Marks), trade names, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of the Company Websites and services provided thereunder. Affiliate will not, at any time, do or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of Company’s right, title, and interest in the Marks. Affiliate’s rights are strictly limited to the rights expressly granted in this Agreement.

Confidentiality.

Definition. For purposes of this Agreement, “Confidential Information” means any technical or business information that might reasonably be presumed to be proprietary or confidential in nature. It shall also include all personally identifiable information of any customer. Without limitation, the terms of this Agreement will be deemed Confidential Information.

Exceptions. Confidential Information will not include information that the receiving Party can demonstrate: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of the receiving Party; (ii) was known by the receiving Party prior to receiving such information from the disclosing Party and without restriction as to use or disclosure; (iii) is rightfully acquired by the receiving Party from a third Party who has the right to disclose it under the circumstances and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without access to any Confidential Information of the disclosing Party.

Obligations/Restrictions. Each Party agrees: (i) to take all reasonable action necessary to protect the confidentiality of the other Party’s Confidential Information; and (ii) not to use any such Confidential Information for any purpose except in accordance with the terms of this Agreement. Each Party may disclose the Confidential Information of the other Party to its employees and consultants who have a bona fide need to know such Confidential Information, but solely to the extent necessary for each Party to fulfill its obligations under this Agreement; provided that each such employee or consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other Party’s Confidential Information as those set forth in this Agreement. In the event a Party is required to disclose the other Party’s Confidential Information pursuant to a valid order by a court or other governmental body or, in the reasonable opinion of such Party’s counsel, as otherwise required by law or regulation, prior to any such required disclosure, such Party will, to the extent permissible by law, promptly notify the other Party so that such other Party may obtain a protective order narrowing the scope of such disclosure. If such protection against disclosure is not obtained, a Party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such required disclosure.

Term and Termination.

Term. This Agreement begins on the Effective Date, and unless terminated earlier in accordance with this Section, will be automatically renewed for one (1) year periods thereafter (the “Term”).

Termination. Each Party may terminate this Agreement immediately on notice to the other Party if the other Party breaches any provision of this Agreement. With respect to termination for convenience, (i) the Affiliate may terminate this Agreement upon providing Kraken thirty (30) days’ prior written notice; and (ii) Kraken may terminate this Agreement effective immediately upon written notice to the Affiliate.

Effect of Termination. As of the effective date of termination (a) Affiliate will immediately cease distributing, posting, or otherwise using the Links and the Marks, and (b) no Weekly Fees will be generated or accrue after such date. If Company terminates for convenience, Company will pay any Weekly Fees properly earned and unpaid for periods prior to the effective date of termination, subject to the Report, applicable adjustments (including refunds/chargebacks/reversals), and any withholding/setoff rights in this Agreement. If Company terminates for cause (including for fraud, deception, policy violations, or breach), Company may withhold, set off, and/or forfeit any unpaid Weekly Fees and recover any overpayments to the maximum extent permitted by law. Company may at its sole discretion update, and/or terminate a Designated Service at any time. Promptly upon expiration or termination of this Agreement and/ or any Designated Service, Affiliate will cease distributing, posting, or otherwise publishing the Links. The rights and obligations contained in the following provisions of this Agreement will survive the expiration or termination of this Agreement: Sections 5, 7, 9, 10, 11, and 12.

Disclaimer of Warranty.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR AS OTHERWISE REQUIRED BY LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHERMORE, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT ANY GRAPHICS, TEXT, LINKS OR OTHER MATERIALS OR ASSETS PROVIDED BY COMPANY, OR FEEDBACK PROVIDED ON GRAPHICS, TEXT, LINKS OR OTHER MATERIALS OR ASSETS INTENDED TO BE USED BY AFFILIATE ARE IN COMPLIANCE WITH ANY LAWS, REGULATIONS AND REGULATORY GUIDELINES APPLICABLE TO THE AFFILIATE AND THE AFFILIATES ACTIVITIES. FOR THE AVOIDANCE OF DOUBT AFFILIATE BEARS THE FULL AND SOLE RESPONSIBILITY TO ENSURE THE ACTIVITIES THEY UNDERTAKE TO PROMOTE COMPANY ARE IN COMPLIANCE WITH ANY APPLICABLE LAWS, REGULATIONS AND REGULATORY GUIDELINES.

Indemnification by Affiliate. Affiliate will defend, indemnify, and hold harmless Company, its affiliates, and each of their respective officers, directors, employees, agents, and representatives from and against any and all third-party claims, demands, actions, investigations, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) Affiliate’s marketing, advertising, promotions, websites, content, or communications relating to Company or any Designated Service; (ii) any breach or alleged breach of this Agreement by Affiliate; (iii) any violation of applicable law, regulation, or self-regulatory guidance by Affiliate, including any endorsement, advertising and email marketing rules; (iv) infringement, misappropriation, or violation of any intellectual property, privacy, publicity, or other rights by Affiliate Materials; or (v) any tax obligations of Affiliate. Company may, at its option, participate in the defense with counsel of its choosing at its own expense. Affiliate may not settle any claim in a manner that imposes any obligation or admission on Company without Company’s prior written consent.

Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT; PROVIDED THAT THIS LIMITATION OF LIABILITY SHALL NOT APPLY IN THE EVENT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. TO THE MAXIMUM EVENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, ARISING OUT OF THIS AGREEMENT, EXCEED THE FEES PAID UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM GIVING RISE TO SUCH LIABILITY . THE FOREGOING LIMITATIONS SHALL NOT APPLY TO BREACHES OF SECTION 7 HEREUNDER.

General Provisions.

Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without giving effect to any principles of conflict of laws. Any dispute, claim or controversy arising out of or relating to this Agreement will be determined by arbitration in the County of San Francisco, California. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. To the maximum extent permitted by applicable law, all disputes must be brought solely in the Parties’ individual capacities, and not as a plaintiff or class member in any purported class, collective, coordinated, consolidated, or representative proceeding. The arbitrator may not consolidate claims or preside over any form of class, collective, coordinated, consolidated, or representative proceeding, and may award relief only in favor of the individual party seeking relief and only to the extent necessary to resolve that party’s individual claim.

Modification. Company may modify this Agreement, any Designated Service terms, fee schedules, policies, and Program requirements at any time by posting updated terms in the Dashboard and/or on Company’s website, and/or by providing notice to Affiliate via the Dashboard or email. Unless Company states otherwise, changes are effective upon posting. Affiliate’s continued participation in the Program after the effective date constitutes acceptance of the modified terms. If Affiliate does not agree to a modification, Affiliate’s sole remedy is to terminate participation in the Program (and cease use of the Links and Marks).

Entire Agreement. This Agreement, the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes all other prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.

Notice. Company will provide all notices and other communications to Affiliate via the Dashboard and/or via the e-mail addresses specified by Affiliate on the Dashboard. Notice to Company by Affiliate will be sent to [email protected] with a mandatory copy sent to [email protected]. The foregoing are the only effective channels for providing notice and all other forms of notice will be ineffective for purposes of this Agreement. Notices will be effective when sent.

Severability. In case any provision of this Agreement may be invalid, illegal, or unenforceable, that portion of such provision that is not invalid, illegal or unenforceable will remain in effect, and the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible.

Successors and Assigns. Company may assign or transfer this Agreement (in whole or in part), without Affiliate’s consent, to any affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all assets. Affiliate may not assign or transfer this Agreement (in whole or in part) without Company’s prior written consent, and any attempted assignment in violation of this section is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

Waiver. The failure by any Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

Third-Party Rights. Other than the Parties, no person or entity will have or acquire any right by virtue of this Agreement.

Independent Contractors. Affiliate is an independent contractor, and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Affiliate will not have the power to bind the Company or incur obligations on the Company’s behalf without the Company’s prior written consent.