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Terms of Service - Custody
Customers are reminded that
they and any and all persons authorized to initiate deposits and withdrawals are required to successfully complete the Custodian's account opening process pursuant to its AML Policy, which may be amended from time to time, before making use of the Custodian's custody services;
they are solely responsible for, and shall pay, all taxes, assessments, duties, and other governmental charges, including any interest or penalty rightfully owed by Customers with respect thereto, with respect to any Custody Assets or any transaction related thereto;
Supported Assets are new forms of assets that the law regarding their ownership, custody, and transfer is developing and uncertain, and that custody of such assets poses certain risks that are not present in the case of more traditional asset classes. Customers will bear such risks and the potential loss or diminution in value of Supported Assets due to changes or developments in the law or conditions under existing law in which Customer's rights in and to such Supported Assets are not adequately protected;
(i) Custodian does not own or control the underlying software protocols of networks which govern the operation of Supported Assets, (ii) Custodian makes no guarantees regarding their security, functionality, or availability, and (iii) in no event shall Custodian be liable for or in connection with any acts, decisions, or omissions made by developers or promoters of such Supported Assets;
the Custodian retains external server, telecommunication and other infrastructure providers that are selected with great diligence based on state-of-the-art technical capabilities. Malfunctions, failures and breakdowns of such external systems may affect the Services and the connected or underlying systems;
there is a risk of hacking that even a high level of diligence cannot completely exclude. Hacking may affect the functioning of the custody service and the connected or underlying systems;
they are solely responsible for obtaining all regulatory licenses, approvals and consents as applicable to their business, Custodian is only responsible for compliance with regard to their custody services. Without limiting the generality of the foregoing, the Customer may not use the services provided by the Custodian hereunder in any manner that is, or would result in, a violation of any applicable laws and regulations.
1. Definitions and interpretation
1.1 Capitalized terms used in this Custody Agreement shall have the following meaning:
"Assets" - any digital asset, notwithstanding other denominations such as "cryptocurrency", "virtual currency", "digital currency", which is a digital representation of value based on (or built on top of) a cryptographic protocol of a computer network;
"Custody Asset Balance" - the quantity of each Custody Asset denominated in the appropriate Supported Asset type;
"Authorized Person" - is any person designated by the Customer to have access to the Customer's Custody Account based on the role-based permissions the Customer assigns;
"Blockchain Address" - a public address on a blockchain in which Assets can be held (including, but not limited to, a Bitcoin address for the Asset commonly known as Bitcoin and an Ethereum address for the Asset commonly known as Ether);
"Cold Storage System" - the proprietary offline storage system that the Custodian uses to custody the Customer's Custody Assets;
"Custody Asset" - any Supported Assets that have been Delivered to the Custodian to be held in a Custody Account established by the Custodian on the Customer's behalf (as described in the 'Custody Account' section), in each case until such Custody Assets are withdrawn or cease to be Custody Assets pursuant to this Custody Agreement. Custody Assets shall also mean any Asset resulting from Forks that the Custodian, in their sole discretion, deem to be a Supported Asset;
"Customer Interface" - the Custodian's interface potentially to be provided in the future on the Custodian's website at https://www.swarm.com that allows for Custody Account actions including, but not limited to, the ability to view balances and request and approve withdrawals;
"Cut-Off Time" - 6:00pm CET each Business Day;
"Delivery" (or "Deliver", "Delivering" or "Delivered") - the transfer of Supported Assets to one or more Blockchain Addresses controlled by the receiving Party and provided by the receiving Party to the sending Party for such transfer. Supported Assets will only be considered Delivered to the Custodian after the required number of network confirmations, as determined by the Custodian in its sole discretion, have occurred on the blockchain for such Supported Assets;
"Effective Date" - the date of Delivery of Supported Assets from the Customer to the Custodian;
"Other Functionality" - functionality that may be associated with certain Custody Assets including, but not limited to, staking, protocol governance, smart contract functionality, and other similar uses;
"Parties" - (each, individually a "Party") means the Customer and the Custodian;
"Supported Asset" any Asset with regard to which Custodian offers its services
"Withdrawal Request" - a request sent to the Custodian by the Customer that specifies the type and amount of Custody Assets to be withdrawn from the Customer's Custody Account and the destination Blockchain Address.
In this Custody Agreement:
1.2.1 where the context so admits, a reference to the singular includes the plural and vice versa;
1.2.2 any reference to a defined document or provision of statutory law is a reference to that defined document or provision as amended, supplemented, restated or novated from time to time;
1.2.3 headings are for ease of reference only and shall be ignored in the construction of this Agreement;
1.2.4 where a German language term has been added to an English language term, such German term shall be decisive throughout; and
2.1 The Customer hereby appoints the Custodian to act as the custodian of Custody Assets to be held in the Customer's Custody Account in accordance with this Custody Agreement. The Custodian accepts such appointment.
2.2 The Custodian does not provide any investment advice or advice on trading techniques, models, algorithms, or any other schemes.
2.3 Unless provided explicitly in this Custody Agreement, as may be revised from time to time, we will not support any Other Functionality associated with any Custody Assets.
2.4 Custody services may not be used for any unlawful or unauthorized purpose, as determined by Custodian.
3.1 The Custodian shall establish a Custody Account in the name of the Customer. The Custody Account will have one or more associated unique Blockchain Addresses in which the Customer's Custody Assets will be stored. The Custodian shall provide the Customer with all Blockchain Addresses associated with the Customer's Custody Account.
3.2 The attribution of the Custody Assets to the Customer will be clearly recorded in the Custodian's books as belonging to the Customer. The Custodian's records shall at all times provide for the separate identification of the Customer's Custody Assets. The Custodian shall not loan, hypothecate, pledge, or otherwise encumber any Custody Assets in the Custody Account, absent specific instructions from the Customer.
3.3 The Custodian may use its Cold Storage System to custody its own Supported Assets and/or the Supported Assets of third parties; provided that separate Blockchain Addresses are utilized to segregate the Customer's Custody Assets from such other property.
The Custodian has no obligation with respect to any Supported Assets unless such Supported Assets have been Delivered to a Blockchain Address provided by the Custodian. In addition, the Custodian is not required to accept Delivery of any Supported Assets, and has no liability therefor (except, if Delivered by the Customer, to ensure return by Delivery of such Supported Assets to the Customer), if the Custodian believes that the acceptance thereof would or is reasonably likely to expose the Custodian or any of the Custodian's affiliates to any liability (contingent or otherwise).
5.1 Deposits of Supported Assets to a Blockchain Address of the Customer's Custody Account may occur without the Custodian's involvement. Deposits will be credited to the Customer's Custody Account once they are Delivered.
5.2 The Customer is asked to only initiate deposits of Supported Assets to a Blockchain Address of their Custody Account when such Blockchain Address and Custody Account is active and compatible with the respective Asset and/or take into account any other notices relevant to the deposit. The Custodian is not liable for the loss of Assets due to the disregard of such obligations or loss of Assets prior to arrival in the Custody Account.
5.3 The Custodian reserves the right to refuse to process, cancel or reverse, any deposit in their sole discretion in accordance with applicable law and this Custody Agreement, even following deposit of Supported Assets in the Customer's Custody Account.
6.1 The Custodian offers (i) a full custody solution and (ii) a multi-sig solution.
6.2 Full custody solution
6.2.1 The Customer submits a Withdrawal Request to the Custodian via
188.8.131.52 the Custodian's Customer Interface; or
184.108.40.206 Or any other method agreed to and verified by the Parties
6.2.2 Following either method, the Authorized Person will receive an email notification or other communication previously agreed to informing them of the Withdrawal Request. The Authorized Person must approve the Withdrawal Request through the Custodian's Customer Interface or via email, depending on the form of Customer's submission ("Withdrawal Confirmation").
6.3 Multi-sig solution
6.3.1 Upon submission of a Withdrawal Request via the Custodian's Customer Interface, all Authorized Persons will receive an email notification informing them of the Withdrawal Request. An Authorized Person (other than the Authorized Person who initiated the Withdrawal Request) must then approve the Withdrawal Request via the Custodian's Custody Interface ("Withdrawal Confirmation").
6.3.2 If only one Authorized Person is designated on an Account, a Withdrawal Request will be approved.
6.4 Once a Withdrawal Confirmation has been made, the Customer's Withdrawal Request will be processed within one Business Day of the next Cut-Off-Time.
6.5 With respect to the Custodian's Customer Interface and use of correct email address and other credentials, the Custodian cannot authenticate whether or not the Withdrawal Request originated from an Authorized Person. As such, Custodian may rely upon any action that they believe in good faith to have been taken by an Authorised Person. It is the Customer's sole responsibility to protect and secure their user name, password and other credentials from unauthorized use and disclosure.
6.6 Any Withdrawal Request from Customer's Custody Account shall only request delivery of Custody Assets to a wallet that is attributed and has previously been verified to the Customer or an Authorized Person and controlled by these. The Customer shall upon the Custodian's request evidence such attribution and control.
6.7 The Custodian has the right to refuse to execute any Withdrawal Request that the Custodian believes to (potentially) be in violation of any Applicable Laws and Regulations.
7.1 The fee denominated in the respective Custody Asset type (the "Custody Fee") is: (i) calculated on a daily basis at 4:00pm CET; and (ii) accrues each calendar day against the respective Custody Asset Balance beginning on the day the Supported Assets were Delivered to the Custodian (i.e., becoming Custody Assets).
7.2 The Custodian will deduct the Custody Fee from the Custody Assets the Custodian holds on the Customer's behalf on a monthly basis, on or around the last Business Day of every calendar month, or more frequently, in the Custodian's sole discretion. The Custodian will deduct the accrued and uncollected Custody Fee from the Assets the Custodian holds on the Customer's behalf any time the Customer's Custody Asset Balance falls below the accrued but uncollected Custody Fee, including when the Customer withdraws its Custody Assets.
7.3 The Custodian may deduct an administrative withdrawal fee (the "Administrative Withdrawal Fee") in connection with a Withdrawal Request and in accordance with the Custody Fee Schedule.
7.4 The Custody Fee Schedule is incorporated by reference and is made available individually to Customers.
7.5 The Custodian reserves the right to change, modify, or increase the Custody Fee Schedule at any time. Any change to the Custody Fee Schedule will be posted at least three calendar days prior to taking effect and no change will be in effect for less than 30 calendar days.
7.6 The Custodian maintains the right to retain or set-off any matured obligation due from a Customer against any Custody Assets (or the value thereof, as reasonably determined in the Custodian's sole discretion) or any other satisfiable (erfüllbar) obligation (within the meaning of Section 387 German Civil Code (Bürgerliches Gesetzbuch)) against any obligations that the Customer may have to the Custodian. If the obligations are in different currencies or Supported Assets, the Custodian may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
8.1 Forks may result in Forked Networks and the Custodian holding an identical amount of Custody Assets associated with each Forked Network.
8.2 Underlying protocols of Supported Assets are subject to changes in operating rules (each a "Fork") that may result in more than one version (each, a "Forked Network") and the Custodian holding an identical amount of Custody Assets associated with each Forked Network. Forks may materially affect the value, function, and/or name of the Custody Assets.
8.3 In the event of a Fork, Custodian may temporarily suspend the operations of the custody service (with or without advance notice to Customers) while the Custodian chooses, in its sole discretion, except as described herein, which Forked Networks to support. In our best estimation the Custodian is unlikely to support most Forked Networks and the Custody Assets of most Forked Networks will likely not be made available to Customers.
8.4 Digital asset values can fluctuate substantially which may result in a total loss of the value of digital assets held by the Custodian on the Customer's behalf. The supply of digital assets available to the Custodian to provide to Customers as a result of a forked network and our ability to deliver digital assets resulting from a forked network may depend on third party providers that are outside of the Custodian's control. The Custodian does not own or control any of the protocols that are used in connection with digital assets and their related digital asset networks, including those resulting from a forked network. Accordingly, the Custodian is not liable regarding such protocols and any change in the value of any digital assets (whether of a forked network or otherwise), and does not make any guarantees regarding the security, functionality, or availability of such protocols or digital asset networks.
8.5 The Custodian shall deduct a Daily Fee from the Custody Assets of each Supported Forked Network held by the Custodian on the Customer's behalf pursuant to the Custody Fee Schedule.
The Custodian provides the Customer with an itemized account statement ("Custody Statement") monthly via the Custodian's Consumer Interface or via email, which will list the accrued Daily Fees for the Custody Assets.
10.1 The Custodian may cancel the deposit or withdrawal process at any time. Reasons for cancellation include, but are not limited to, technical error, market abuse, manipulation, prohibited activities and other circumstances referred to in Section 11 of this Custody Agreement.
10.2 Customers are entitled to refunds. Refunds may not be granted where the Customer is solely responsible for the cancellation or Assets are linked to criminal activity. The Custodian may deduct all fees and charges due from any refund.
10.3 In case the Custodian transfers to the Customer any excess Supported Assets that the Customer is not entitled to, the Customer agrees to inform the Custodian and transfer back that excess amount without undue delay.
The Custodian has the right to suspend and/or terminate the custody services under this Custody Agreement pursuant to the account suspension and account termination provisions of the Terms of Service and updated from time to time.
12.1 The Custodian accepts liability for intent and gross negligence. The Custodian's liability is limited to contract-typical damages foreseeable at conclusion of this Custody Agreement in case of mildly negligent breach of a main obligation or a secondary obligation, the breach of which endangers the achievement of the contract's purpose, or the fulfillment of which is essential for the proper execution of this Custody Agreement, and on the observance of which Users could reasonably rely ("Essential Secondary Obligation").
12.2 Towards other corporations, the Custodian is only liable for intent or gross negligence on its part, by their lawful representatives, executive employees or other vicarious agents, except in the case of breaches of material contractual obligations. In the event of a breach of material contractual obligations, the Custodian shall be liable for any culpable act of its lawful representatives, officers or other employees.
12.3 The Custodian is not liable for the mildly negligent violation of secondary obligations that are not Essential Secondary Obligations.
12.4 With the exception of tort claims, the Customers' claims for damages with limited liability shall become statute-barred one year after the beginning of the statutory limitation period. As far as the liability of the Custodian is excluded or limited, the statute of limitations also applies to the personal liability of its employees, other staff and vicarious agents.
12.5 The Custodian takes all necessary and prudent precautions to safeguard Custody Assets from hacking.
12.6 Force Majeure: The Custodian is not liable for any damages due to Force Majeure.
12.7 The Custodian takes all necessary and prudent efforts to provide the Customer with high-level custody services, including applying the necessary diligence in retaining third-party services. The Custodian accepts no liability for interferences with the normal service level that are not under the control of the Custodian. It will inform Customers on the website if the service level is interrupted for more than 24 hours.
13.1 The Custodian keeps and maintains, or causes to be kept, accurate books and records with respect to any Custody Account and Custody Assets, including with respect to the receipt and withdrawal or transfer thereof.
13.2 The Custodian maintains a commercially reasonable system for (i) recovery, in case of disaster, of all of its records associated with the Customers' Custody Accounts, and (ii) the continued provision of the services under this Custody Agreement in the event of any Downtime and Maintenance.
14.1 The Customer shall not assign or transfer any of its rights, claims or obligations under or in connection with this Custody Agreement without prior consent of the Custodian.
14.2 The Customer may at any time assign and transfer its rights, claims and obligations, including by way of assumption of contract (befreiende Vertragsübernahme), under or in connection with this Custody Agreement to a person appointed as successor Custodian under the terms of this Custody Agreement. The Customer hereby consents to any such transfer.
14.3 The Custodian may perform any of their duties or obligations under this Custody Agreement through subcontractors or agents (including affiliates), whenever and on such terms and conditions as the Custodian, in its sole discretion, deems necessary or appropriate to perform such duties or obligations or liabilities; provided, however, that no arrangement with such subcontractor or agent shall discharge the Custodian from its obligations hereunder.
15.1 Sections “Your Account”, “International Users”, “Indemnification”, “Disclaimer of Certain Liabilities” of the Terms of Service and updated from time to time apply mutatis mutandis to this Custody Agreement.
15.2 The English language version of this Custody Agreement is authoritative and shall prevail over any translation.
15.3 The Custodian reserves the right to change or extend services, notably its Customer Interface.
15.4 The Custodian strives to continuously improve and extend its custody services. Thus, the Custodian reserves the right to adapt this Custody Agreement from time to time. The updated version of the Custody Agreement as published on the website at https://docs.swarm.com/about/terms/tos-custody and made known to Customers via email will automatically become part of this agreement if the Customer does not object to the changes within four weeks.
15.5 For all disputes arising from the contractual relationship between the Parties, the Customer agrees that the laws of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods.
15.6 The courts of Berlin, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Custody Agreement (including a dispute relating to the existence, validity or termination of this Custody Agreement [or any non-contractual obligation arising out of or in connection with this Custody Agreement].
15.7 Should any of the provisions of this Custody Agreement be or become invalid or unenforceable in whole or in part, the validity or the enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The invalid or unenforceable provision shall be replaced by a provision that, to the extent legally possible, provides for an interpretation in keeping with the meaning and the economic purposes of this Custody Agreement. If this Custody Agreement proves to be incomplete, a supplementary interpretation in accordance with the meaning and the purposes under due considerations of the legitimate interest of the Parties shall be applied.