Terms of Service

last updated: October 20, 2021

1. Introduction

1.1 Background

Canvas Digital Pty Ltd (ABN 77 648 707 706) (we, us or our) will supply access to the CANVAS platform (Platform) and related services (Services) to you on these Terms. By using the Services, you agree to these Terms and our Privacy Policy, which is available on our website. These Terms and our policies may change from time to time. Your subsequent or continued use of our Services will constitute your acceptance of these changes. If you do not agree to a change, you may terminate your use of the Services.

1.2 Our Services

Our Services are: (a) Wallet Service, which allows you to create a Wallet to hold Digital Assets; (b) Exchange Service, which allows you exchange Digital Assets, including for fiat currencies, with third parties; and (c) DeFi Gateway Service, which allows you to loan Digital Assets to third parties and earn Interest. Details of these Services are set out in Annexure A. You may not be eligible to use all Services.

1.3 We are not a bank or ADI, we do not hold an AFSL

We are not a bank or an authorised deposit-taking institution. Digital Assets held by us and transactions undertaken using the Services are not government guaranteed. We do not hold an Australian financial services licence in relation to the provision of the Services.

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2. Digital Asset Risks

2.1 You understand Digital Assets

Holding and trading Digital Assets involves a high level of risk and could result in the loss of your investment. It is your responsibility to understand these risks and Digital Assets generally, including Bitcoin, Ethereum and other Digital Assets offered on our Platform. Before holding or trading Digital Assets you should carefully consider your financial situation and investment experience and objectives. We give no warranty as to the performance or profitability of any transaction or investment that may be effected in connection with the provision of the Services.

2.2 Specific Digital Asset risks

Not currency. Digital Assets are not currencies or legal tender. They are not backed by governments or central banks and may not have any source of value or asset backing.
Volatility risk: The value of Digital Assets may vary significantly and rapidly for various reasons including technology issues, scarcity, trading imbalances, trading behaviours, unlawful conduct or the development of new Digital Assets.
Lack of price transparency. The prices offered for Digital Assets may not reflect the prevailing market price.
Liquidity risk: It may not be possible to transfer Digital Assets for value from time to time or at all due to factors outside your or our control.
Counterparty risk: Users of the Services are not required to provide collateral or security and counterparties to Digital Asset transactions might not be creditworthy or honest.
Illegal activities: Individuals or organisations may engage in illegal activities, which could jeopardize your Digital Assets.
Irreversible transactions: Due to the nature of the underlying technologies, transactions involving certain Digital Asset cannot be reversed.
Loss of Digital Assets: Digital Assets can be lost due to fraud, unauthorised access or system failure. Such losses may not be recoverable.
Transaction speed and costs. The speed and cost of transacting with Digital Assets may be variable and may increase over time.
Regulatory risk. In some jurisdictions the status of Digital Assets is not settled and restrictions may apply to their ownership, use and transfer.

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3. Term and Termination

3.1 Termination or suspension of Services

We may terminate or suspend the Services if:

you notify us that you wish to terminate the Services;
you fail to pay us any money that is due;
you breach these Terms;
we suspect that you have misused, or are misusing, the Services;
you are a natural person and you die; or
if reasonably required due to events outside of our control or operational reasons (e.g., maintenance).

3.2 Post-termination rights

Termination of these Terms does not affect any cause of action that accrued before termination. Clauses 2 and 6 to11 survive termination of these Terms.

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4. The Services

4.1 Eligibility

You may only use our Services if you are at least 18 years old. You must also comply with our AML/CTF and KYC Policies, which are available on our website. These policies may change from time to time.

4.2 Verification of identity

We may make enquiries to verify your identity to protect you and us from being used in connection with fraud, money laundering, terrorist financing or other unlawful activities. This may take up to 10 Business Days.

4.3 Two-factor authentication

We use two-factor authentication to protect your Digital Assets. You must implement an authenticator on the hardware you use to access the Services.

4.4 Service interruption and faults

We will take reasonable steps to maintain the Services but do not guarantee the Services will be available, fault-free or delay-free at all times. Our Services may be affected by downtime, maintenance, processing issues, internet, network or server problems, hardware or equipment failure, software faults, unauthorised access, malicious acts or events outside our control. You understand these risks. We may suspend, amend or restrict access to the Services at our sole discretion.

4.5 Authority

We are authorised by you to do anything which we consider necessary or appropriate either to provide the Services (including but not limited to acting as your agent and delegating our authority as your agent to another), to mitigate any loss incurred in the provision of the Services or to comply with any applicable law relating to the Services.

4.6 Third parties

You may use the Services to transact with third parties or use third party web sites to access the Services. We do not guarantee that such third parties are reliable, solvent, secure, fault-free or free from unauthorised access, fraud or illegal activity.

4.7 Use of other platforms

We may use different platforms to hold your Digital Assets and fiat currencies in the course of providing the Service.

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5. Responsibilities

5.1 General responsibilities

You are solely responsible for assessing the financial, legal, tax and other risks and implications associated with using the Services.
You must ensure that your use of the Services complies with all Applicable Laws and your Digital Assets have not been gained from any unlawful activity.
You warrant that all information provided to us is accurate, complete and not misleading.
You are responsible for the accuracy of any instructions you submit to us.

5.2 Security-related responsibilities

You must not allow any unauthorised third party to use the Platform or the Services and must immediately notify us if you become aware of any such use.
You must keep your username, password, private key and account details secure and confidential.
You must not, and must not allow any third party to, copy, modify, reverse engineer or otherwise interfere with the Platform or the Services.

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6. Fees and payment

6.1 Our Fees

Our Fees for the Services are published on our website and include:

Foreign exchange fees for converting currency.
Spread fees for converting Digital Assets to fiat currencies and vice versa.
Custody fees for holding your Digital Assets, charged as a percentage of the value of the Digital Assets you have on our Platform.
Loan performance fees where you generate positive returns from Digital Assets loans, charged as a percentage of the Interest you receive.

6.2 Deduction / payment of Fees

We may deduct Fees from Digital Assets in your Wallet. If there are insufficient Digital Assets, we will invoice. You must pay our invoice within [7] days (Due Date).

6.3 Late payment

If you do not pay a Fee by its Due Date, we may suspend the Services and / or charge a Default Rate on the daily balance of the unpaid amount from the Due Date until paid.

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7. Liability

7.1 Your Consumer Rights

Nothing in these Terms excludes, restricts or modifies any rights that you have under Applicable Laws (including the Australian Consumer Law) that cannot be lawfully excluded, restricted or modified together (Your Consumer Rights).

You can find out more about Your Consumer Rights the ACCC and State/Territory fair trading authorities.

7.2 Our liability

Subject to Your Consumer Rights, and to the maximum extent permitted by Applicable Law, we are not liable for any loss or liability you suffer or incur in connection with:
(i) any breach of these Terms;
(ii) any failure to use the Services in accordance with these Terms or our instructions from time to time;
(iii) any matter expressed to be your responsibility under these Terms;
(iv) any risk identified in these Terms;
(v) any investment losses relating to your Digital Assets;
(vi) any losses relating to your Digital Asset loans; and
(vii) any reduction in the value of, or any loss of, your Digital Assets other than as a result of our breach of these Terms.

b. If we are required to take responsibility for loss under the ACL then, to the extent permitted, our liability is limited to resupplying, or paying the cost of resupplying, the relevant Services.

c. Subject to your Consumer Rights, and to the maximum extent permitted by Applicable Law, we are not liable for, and no measure of damages will, under any circumstances, include:

(i) special, indirect, consequential or punitive damages; or

(ii) damages for loss of profit, revenue, goodwill, anticipated savings or loss of data, whether in contract, tort (including negligence), in equity, under statute or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.

d. Our liability to you is diminished to the extent that your acts or omissions (or those of a third party) contribute to or cause the loss or liability.

e. If you suffer loss or liability in connection with the Services, you must take reasonable steps to minimise your loss or liability, including by promptly notifying us so we can take steps to help you minimise your loss or liability.

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7.3 Force majeure

We are not liable for any partial or non-performance of our obligations caused by events such as fires, telecommunications, utility, or power failures, equipment failures, labour strife, riots, war, non-performance of our vendors or suppliers, acts of God, pandemic or epidemic events, digital currency exchange default, custody provider default, bank default, suspension, failure or closure or other causes over which we have no reasonable control.

7.4 Your liability

You indemnify us against any loss or liability we suffer in connection with your conduct, negligence or breach of our IP Rights or Applicable Law. This indemnity continues for two years after termination of these Terms.

8. Privacy

8.1 Compliance with privacy laws

We will comply with applicable Privacy Laws in relation to the supply of our Services.

8.2 Data collection

We may collect Personal Information and other data, including contact details,payment and bank information, compliance information, necessary or desirable to provide the Services.
We may also collect aggregated data about the Services, including debugging information (Aggregated Data). Such Aggregated Data will not identify you or any individual.

8.3 Use of collected data

We may use and disclose the Personal Information and other data we collect to supply the Services (including diagnostics). We may use and disclose Aggregated Data for any purpose.
We may disclose the Personal Information and other data if required by an Applicable Law.

8.4 Data retention

We may retain the Personal Information we collect for as long as permitted by Applicable Law. We may retain the Aggregated Data during the Contract Term and thereafter.

9. Intellectual property

9.1 Trademarks

We own or license the trademarks used in connection with the Services. You must not reproduce, publish or otherwise use any such trademark without our consent. We may use your brand in our marketing collateral and on our website in connection with the Services.

9.2 Intellectual property rights

We own or license all IP Rights in the Platform and the Services. We own any IP we create in connection with the Platform or the Services.
We license you to use our IP Rights to the extent necessary to use the Services in accordance with these Terms. You have no other interest in or to our IP Rights.

9.3 Confidential Information

You must not use our Confidential Information except to use the Services in accordance with these Terms. You must not disclose our Confidential Information (other than to your employees, officers and advisors on a need-to-know basis) except as required by law.

10. Notices

10.1 Notices – from us to you

Subject to clause 10.1(b), we may give notices to you in person or by fax, post, email, any form of electronic communication (including via the Portal) or in any way allowed by law.
If Applicable Law requires a notice to be in writing, we will give it in writing.
We may direct a notice to your registered office, the most recent address you have notified us of or any other address that we reasonably believe to be current.
A notice is taken to have been received:
(i) if we give it to you in person – at the time of delivery;
(ii) if we post it – at noon on the 2nd Business Day after posting;
(iii) if we give it to you by email, electronic messaging or fax during business hours in your locality – two hours later;
(iv) if we give it to you by email, electronic messaging or fax outside business hours in your locality – at 9am on the next Business Day; or
(v) if there is evidence that you received it at an earlier time – that earlier time.

10.2 Notices – from you to us

Our website includes our contact details, including instructions about how to give a notice to us. This may be by email (to a specified address for notices) or any other way we specify. We may change these instructions from time to time.
A notice is taken to have been received at noon on the next Business Day in Sydney, New South Wales, Australia, subject to a ‘delivery failure’ message not being given.

11. General

11.1 Cooperation

If there are operational or performance issues with the Services, you must reasonably assist us to troubleshoot and rectify them.

11.2 Capacity

Neither the relationship between you and us nor the Services to be provided by us will give rise to any fiduciary or equitable duty which would oblige us to accept responsibilities more extensive than those set out in these Terms or which would prevent us from dealing in Digital Assets for any other person or entity. Nothing in these Terms (or any of the arrangements contemplated by them) shall be deemed to create a partnership, joint venture or equivalent relationship between you and us.

11.3 GST

In this clause, an italicised expression has the meaning in the GST Act.
Fees are taken to be GST inclusive unless they are expressed to be GST exclusive, + GST or similar.
If an amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any taxable supply for which the amount is paid. Otherwise:
(i) the consideration payable by you represents the value of any taxable supply for which payment is to be made; and
(ii) if we make a taxable supply for a consideration, which represents its value, you must pay immediately the amount of any GST payable in respect of the taxable supply.
If you are required to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount you must pay, reimburse or contribute will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under this clause.

11.4 Entire agreement

These Terms are the entire agreement between you and us regarding the Services (other than a Consumer Guarantee to the extent it may not lawfully be excluded).

11.5 Assignment

We may assign or novate your contract to a purchaser of our business without your further consent. You may not assign or novate any of your rights or obligations under your contract unless we agree in writing.

11.6 No waiver

A failure or delay by us in exercising any right under these Term does not operate as a waiver of the right.

11.7 Delays

Subject to clause 11.6(b), time is not of the essence in relation to the supply of the Services.
If you are an ACL Consumer and no time is fixed for the supply of the Services, the Services will be supplied within a reasonable time and you may have rights under the ACL if we fail to do so.

11.8 Governing law

Subject to clause 11.7(b), these Terms are governed by the laws of New South Wales, Australia. You and we submit to the exclusive jurisdiction of the courts of NSW South Wales, Australia.
If you are an ACL Consumer, these Terms are governed by the laws of your State or Territory of residence. You and we submit to the exclusive jurisdiction of the courts of that State or Territory.

12. Dictionary and interpretation

12.1 Dictionary

Unless the context indicates otherwise:
ACL – the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2012 (Cth).
ACL Consumer – [to be inserted]
Account – your account with us, which allows you to establish a Wallet.
AML/CTF & KYC Policy – our Anti-Money Laundering/Counter Terrorism Financing and Know Your Client policies available on our website.
Aggregated Data – see clause 8.2(b).
Authority – any governmental, semi-governmental, administrative, judicial or quasi-judicial body, authority, agency or entity and includes private authorities that have authority in relation to a party.
Applicable Law – any Law which you or we are required to comply with at any time.
Business Day – a day that is not a Saturday, Sunday or public holiday in Sydney, New South Wales.
Confidential Information – all information in any form relating or belonging to a party of a confidential nature, excluding information that:

becomes generally available to the public (except as a result of a breach of confidentiality); or
is independently developed by or already known to the disclosee.

Consumer Guarantee – the consumer guarantees in sections 51 to 63 of the ACL.
Corporations Act – Corporations Act 2001.
Default Rate – two percentage points above the Commonwealth Bank's 90-day bank bill rate or, if there is no such reference rate, Commonwealth Bank's rate for overdraft facilities in excess of $100,000 available to prime commercial customers.
Digital Assets – means a digital representation of value in relation to whichen cryption techniques are used to regulate the generation of digital units and verify the transfer of assets, operating independently from a central bank. The may include “crypto assets”, “crypto”, “virtual or digital currencies" or "virtual commodities" that may be held and traded on our Platform from time to time including , without limitation Bitcoin or Ether and stable coins such as USDC or GUSD.
Dollar or $ – Australian dollars.
GST – goods and services tax under GST Law
GST Act – the A New Tax System (Goods and Service Tax) Act 1999.
GST Law – as in the GST Act.
Exchange Service – see clause 1.2 and Annexure A.
Interest – interest payable in relation to loans made using the DeFi Gateway Service.
DeFi Account – an account that holds Digital Assets that you may lend to third parties.
DeFi Gateway Service – see clause 1.2 and Annexure A.
IP – anything in which IP Rights subsist.
IP Rights – all industrial and intellectual property rights that may subsist in Australia or anywhere, including patents, copyright, rights in circuit layouts, designs, trademarks and domain names.
Law – any law, statute, regulation, binding code or industry standard, as updated or replaced from time to time and includes a direction of an Authority.
Personal Information – as in the Privacy Law.
Platform – see clause 1.1.
Privacy Law – Privacy Act 1988 (including the Australian Privacy Principles) and any Law that applies to a party with respect to privacy.
Privacy Policy – our privacy policy available on our website.
Services – see clause 1.1.
Tax – any tax, rate, levy, impost or duty (other than income tax of any person) and any related interest, penalty, fine or expense.
Terms – this document as amended.
Wallet – your wallet with us.
Wallet Service – see clause 1.2 and Annexure A.
Your Consumer Rights – see clause 7.1.

12.2 Interpretation

Unless the context indicates otherwise:

a reference to the singular includes the plural and vice versa, and one gender includes all genders;
a ‘person’ includes any entity that can sue and be sued and any legal successor to or representative of that person;
a reference to a document or a Law includes the document or Law as modified or replaced from time to time;
‘in writing’ include any communication capable of being read; and
anything that is unenforceable must be read down, to the point of severance if necessary.

Annexure A

1. Wallet Service

1.1 Wallet Service functions

Provided you pay the applicable Fees, you may use your Wallet to:

deposit, store and transfer supported Digital Assets;
use the Exchange Services; and
use the DeFi Gateway Service.

1.2 Establishing a Wallet

When you open an Account, the Platform will generate a cryptographic private and public key pair that you may use to deposit and withdraw supported Digital Assets to and from your Wallet.

1.3 Backup Wallet and private keys

It is your responsibility to back-up your Wallet and its private key and to maintain its confidentiality. You may require your private key if we cease to provide the Services.

1.4 Unsupported Digital Assets

You must not deposit Digital Assets that are not supported by the Platform. Depositing unsupported Digital Asset may result in the Digital Assets being irreversibly lost.

1.5 Depositing Digital Assets

You can deposit or top up Digital Assets in your Account at any time by:

transferring Digital Assets to your Wallet from your personal wallet; or
purchasing Digital Assets available on our Platform.

1.6 Rejecting Digital Asset transfers

We may reject transfers of Digital Asset to your Wallet. If we do, we will transfer the same amount of the relevant Digital Asset to the wallet from which it was sent.

1.7 Transfers are irreversible

You cannot cancel or withdraw an instruction to complete a Digital Asset transaction. All Digital Asset transactions are irreversible.

1.8 Withdrawing Digital Assets

You may withdraw your Digital Assets to a private wallet or transfer your Digital Assets to a wallet held by a third party

1.9 Transaction limits

Digital Asset transaction and withdrawals are subject to limits published on our website. We may reject a request for withdrawal if the limits are exceeded.

2. Exchange Service

2.1 Exchange Service functions

Provided you pay the applicable Fees, you may use the Exchange Service to exchange Digital Assets in your Wallet with third parties for other Digital Assets.

2.2 Prerequisites of Exchange Service

To use the Exchange Service you must have Digital Assets in your Wallet. The Exchange Services is not available in relation to Digital Assets in your DeFi Account.

2.3 We are not a party to your exchange transactions

Exchange transactions take place between the holders of the relevant Digital Assets. We are not a party to these transactions.

2.4 Performing exchange transactions

To perform an exchange transaction, you must select the type and amount of Digital Asset that you want to exchange and the type of Digital Asset you want to receive.

2.5 Rejection of exchange transactions

We may reject exchange transactions if your Wallet has insufficient Digital Assets or the transaction exceeds our limits.

2.6 Notification of exchange transactions

We will notify you when your exchange transaction is complete and the required Digital Asset has been added to your Wallet.

3. DeFi Gateway Service

3.1 DeFi Gateway Service

Provided you pay the applicable Fees, you may use the DeFi Gateway Service to lend [and borrow] [approved] Digital Assets in your DeFi Account to third parties and earn Interest.

3.2 Prerequisites of DeFi Gateway Service

To use the DeFi Gateway Service you must have Digital Assets in your DeFi Account. The DeFi Gateway Service is not available in relation to fiat currencies.

3.3 Your DeFi Account

You may deposit Digital Assets that you wish to lend in your DeFi Account. No other types of transactions may be undertaken in relation to Digital Assets in your DeFi Account.

3.4 We are not a party to your loans

Loan transactions take place between the lender and borrower of the relevant Digital Assets. We are not a party to these transactions.

3.5 Loan terms are your responsibility

Loan of Digital Assets are provided by you to the borrower. You are responsible for negotiating the loan terms. We are not responsible for any default by any borrower.

3.6 Loans are unsecured

Digital Asset loans made using the Services are unsecured. Borrowers do not provide collateral or security.

3.7 Loans are not insured or guaranteed

Digital Asset loans made using the Services are not insured or guaranteed by us or any governmental or non-governmental body.

3.8 Borrower’s creditworthiness

You are responsible for assessing a borrowers’ creditworthiness. We may prevent a user from borrowing Digital Assets from time to time. However, we make no representations in relation to any user’s creditworthiness.

3.9 Authority to share information

You authorise us to share your Personal Information with borrowers (and potential borrowers) for the purpose of allowing you to provide loans. This may include your name, date of birth and state and country of residence.

3.10 Authority to transfer Digital Assets

You authorize us to transfer your Digital Assets on your behalf to make them available for loans.

3.11 Termination of loan

You may request us to terminate any loan made using the DeFi Gateway Service in accordance with the loan terms you agreed with the borrower. You are responsible for ensuring that your request complies with your loan terms.

3.12 Liquidity reserve

We may maintain a liquidity reserve on your behalf to fund your withdrawal requests by withholding some of the Digital Assets in your DeFi Account from lending. Withheld Digital Assets are not collateral or security and may not be reinvested but will not be subject to additional Fees.