[Version: 1.0, Last updated: 17.08.2022]
This Agreement is between you and SMART VALOR AG (Liechtenstein) (“Delegator”) and is effective on the date that you designate Staking Digital Assets for the Staking Services on the platform made available to you by Delegator (this “Agreement”). You agree to the provisions of this Agreement by designating Staking Digital Assets for the Staking Services on such platform. Neither you nor Delegator are required to sign this Agreement for this Agreement to take legal effect and be binding on you and Delegator. Certain capitalized terms used in this Agreement are defined in the Definitions Schedule below.
- Staking Services. If you designate Staking Digital Assets for the Staking Services, the Staking Services may be performed by the Staking Affiliate. The Staking Services include using commercially reasonable efforts to act as a transaction validator on the applicable blockchain network (each, a “Network”) in respect of the Digital Asset being staked (the “Staking Services”). In addition to contributing to the security of the Network, the Staking Services are intended to generate the granting of rewards to you by the applicable Network (the “Rewards”) and to the Staking Affiliate and/or the Delegator (“Service Fee”). The Staking Affiliate will not take custody of your Staking Digital Assets or Rewards.
- Withdrawal. Staking Digital Assets withdrawn by you from the Staking Services may be subject to withdrawal or unbonding periods imposed by the applicable Network(s) during which time the Staking Digital Assets and Rewards may be unavailable.
- Determinations by Networks. The protocols of Networks govern or affect aspects of the Staking Services outside of the control and responsibility of Delegator and the Staking Affiliate, including (each, a “Network Determination”): (a) the granting or failure to grant of Rewards and Service Fees; (b) unbonding, withdrawal, and unavailability periods; (c) protocol activity and changes; (d) airdrops; (e) forks; and (f) other restrictions or limitations.
TERM OF AGREEMENT
- Term. The term of this Agreement starts on the date that you first designate Staking Digital Assets for the Staking Services and ends when you withdraw your Staking Digital Assets from the Staking Services or Staking Affiliate discontinues providing the Staking Services (the “Term”). Upon any termination of this Agreement, you will stop delegating Staking Digital Assets in connection with the Staking Services and make any related payments owing by you. Sections 2 through and including 25 will survive any termination of this Agreement.
REPRESENTATIONS AND WARRANTIES
- Representations and Warranties. You represent and warrant to Delegator and the Staking Affiliate, as of the first day of the Term and for the duration of the Term, that: (a) if you are an individual, you are of legal age in your jurisdiction of residence and of sound mind and body; (b) if you are a business entity, partnership or other organization (each, a “Business Entity”), you are duly organized and existing in good standing under the Laws of your jurisdiction of organization; (c) you have all required capacity, authority and power to enter into and perform your obligations hereunder; (d) this Agreement constitutes a legal, valid and binding obligation of you enforceable against you in accordance with its terms, except as limited by bankruptcy, insolvency or other Laws of general application relating to or affecting the enforcement of creditors’ rights generally and principles of equity; (e) you have all right, title, and interest in and to the Staking Digital Assets; (f) the execution, delivery, and performance of this Agreement by you does and will not conflict with or violate any Law and is not in violation or breach of, and will not conflict with or constitute a default under, any contract or commitment binding on you; (g) you are not entering into this Agreement or designating Staking Digital Assets for the Staking Services for the purpose of making an investment with respect to Delegator or the Staking Affiliate or its respective securities, but instead, and only, to receive the Staking Services; (h) without limiting the foregoing, you acknowledge and agree that the entering into and performance of this Agreement by the parties hereto does not represent or constitute a loan or a contribution of capital to, or other investment in, any party here, provide you with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in, Delegator or the Staking Affiliate, or create or imply any fiduciary or other agency relationship between Staking Affiliate (or any of its directors, officers, employees, agents, or affiliates) and you or entitle you to any fiduciary duty or similar duty on the part any of the foregoing Persons; (i) you, your agents (and, if you are a Business Entity, your officers, directors, and employees (collectively, the “Representatives”)) are in compliance with all Laws, including all applicable anti-money laundering and anti-terrorist financing Laws, within the jurisdiction of the Liechtenstein and your Place of Residence, and as otherwise applicable to you or your Representatives; (j) you have not (and, if you are a Business Entity, your Representatives have not) been convicted of, or have agreed to enter into a pretrial diversion or similar program in connection with the prosecution of, a criminal offense involving theft, dishonesty, breach of trust, money laundering, the illegal manufacture, sale, distribution of or trafficking in controlled substances, or substantially equivalent activity in a domestic, military, or foreign court; (k) you are not a Politically Exposed Person (PEP) (l) without limiting the generality of the foregoing, you are not, and are not owned or controlled by, or acting on behalf of, any Person who is identified on any list of prohibited parties under any Law or by any governmental authorities, including any lists maintained by the United Nations Security Council, the European Union (EU) or its member states, and the government of your Place of Residence; (m) you are not, and are not owned or controlled by, or acting on behalf of, any Person who is located, ordinarily resident, organized, established, or domiciled in a sanctioned or embargoed country; (n) the Staking Digital Assets are not derived from, and do not otherwise represent the proceeds of, any activities done in violation or contravention of any Law; (o) you are sophisticated and experienced in using and evaluating the Networks, Staking Services and applicable protocols and related technologies; (p) you understand the risks associated with the use, holding and staking of Staking Digital Assets and have conducted your own due diligence and analysis of the Staking Digital Assets, staking thereof and the matters provided under this Agreement in order to determine whether you wish to enter into this Agreement and designate Staking Digital Assets for the Staking Services, and whether you can bear any corresponding economic risks; (q) you are not relying on Delegator or Staking Affiliate to generate profits or returns; and (r) you have not relied upon any information, statement, omission, representation or warranty, express or implied, written or oral, made by or on behalf of Staking Affiliate in connection with the entering into and performance of this Agreement by any party.
PROPERTY; DISCLAIMER; ACKNOWLEDGEMENT; RESTRICTIONS; TAXES & LAW
- Exclusive Property. All rights and interests in any technology, processes or other assets used by Delegator or Staking Affiliate in connection with the performance of this Agreement (together, the “Staking Technology”) remain the sole and exclusive property thereof, and none of such rights or interests are transferred to you under this Agreement.
- Disclaimer. You acknowledge and agree that you designate Staking Digital Assets for the Staking Services at your sole risk. The Staking Services are provided on an “as-is” and “as-available” basis and, to the maximum extent permitted by Law, Staking Affiliate disclaim all representations, warranties, and conditions regarding the Staking Services and your use thereof, including any warranties or conditions of merchantability, merchantable quality, durability, fitness for a particular purpose, non-infringement, title, quiet enjoyment or quiet possession and those arising at Law, or from a course of dealing or usage of trade. Neither Delegator nor Staking Affiliate represent or warrant that the Staking Services will meet your requirements, expectations or desired outcomes, will operate without interruptions, be error-free or virus-free, that results obtained from the Staking Services will be timely, accurate, reliable or current, or that any or all deficiencies can be found or corrected. Neither Delegator nor Staking Affiliate represent or warrant that the Staking Services are legal for use by you in your Place of Residence. Staking Affiliate may disclose information about the Staking Services if required to do so by Law.
- Acknowledgement of Risk. You acknowledge and agree that (a) the continued ability to provide the Staking Services is dependent on elements beyond Delegator and Staking Affiliate’s control, including the publication of blocks, Network connectivity, hacking, Network Determinations, Force Majeure Events, and otherwise; (b) you alone are responsible for controlling access to any devices, websites or portals that may be used to access the Staking Services; (c) you alone are responsible for complying with Laws applicable to you; (d) no regulatory authority has reviewed or passed on the merits, legality or fungibility of Staking Digital Assets or the use, holding or staking of Staking Digital Assets; (e) the staking of Staking Digital Assets or the use of the Staking Services may become subject to regulatory controls that limit, restrict, prohibit or otherwise impose conditions on such activities; (f) the Staking Services may become subject to regulatory controls that limit, restrict, prohibit or otherwise impose conditions on such Staking Services; and (g) the transfer of Rewards is not guaranteed and may depend on elements beyond Delegator or Staking Affiliate’s control, including Network Determinations.
- Restrictions. You will not, and will not authorize, permit, or encourage any third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discern the object or source code or interface protocols of the Staking Technology; (b) modify, adapt, or translate the Staking Technology; (c) make any copies of the Staking Technology; (d) resell, distribute, or sublicense the Staking Technology; (e) remove or modify any proprietary marking or restrictive legends placed on the Staking Technology; (f) use the Staking Technology: (i) in violation of Law, (ii) to build a competitive product or service, (iii) for any purpose not contemplated by this Agreement; nor (g) introduce, post, upload, transmit, or make available to or from the Staking Technology any Prohibited Content.
- Taxes and Law. You alone are responsible for (i) the payment to applicable governmental authorities of all taxes, penalties, duties, levies, and interest (together, “Taxes”) applicable to your Rewards and other amounts receivable or received by you under this Agreement and without limiting the foregoing (ii) your compliance with Law. You are encouraged to seek advice from your legal and tax advisors with respect to your duties relating to any Laws, taxes and otherwise before entering this Agreement.
- Limitation of Liability. Delegator and Staking Affiliate will not in any event be liable or responsible to you or any other Person for any incidental, consequential, special, exemplary, or punitive damages, losses, costs, charges or expenses of any kind, including missed Rewards, revenues, profits, penalties, or Slashing Penalties (together, “Damages”) arising from or relating to the entering into or performance of this Agreement, regardless of whether Staking Affiliate was advised, had other reason to know, or in fact knew of the possibility thereof. Without limiting the generality of the foregoing sentence, Staking Affiliate will not in any event be liable or responsible to you or any other Person for any Damages arising from or relating to any Network Determination, acts of a malicious Person including a hacker, and/or Force Majeure Events.
- Indemnification. You will indemnify and hold harmless Delegator and Staking Affiliate, and each of their respective affiliates and their respective subcontractors, licensors, agents, directors, officers, employees, other representatives, and each their respective successors and assigns (together, the “Indemnified Parties”) from and against all Damages arising from or related to any third party or governmental claim, charge or legal proceeding arising from or related to your acts or omissions, including any breach or violation of this Agreement. Without limiting the foregoing sentence, you will indemnify and hold harmless the Indemnified Parties in respect of all taxes levied, applied or assessed by any governmental authority on your Staking Digital Assets, Rewards, and other amounts receivable or received by you in connection with this Agreement.
- Conditions. The obligations of Staking Affiliate to perform the Staking Services are conditional on the satisfaction of the following conditions precedent as of the first day, and throughout the duration, of the Term: (a) the Network has selected Delegator or Staking Affiliate to operate a validator node on the Network sufficient to stake your Staking Digital Assets; (b) your covenants under this Agreement are performed and satisfied; (c) your representations and warranties under this Agreement are true, accurate, and complete; (d) neither your designation of Staking Digital Assets for the Staking Services, nor the performance of the Staking Services for you, constitute, or would be reasonably expected to result in (with or without notice, lapse of time, or both) a breach, default, contravention or violation of any Law, or agreement to which you and/or Staking Affiliate are party, bound or subject; and (e) without limiting the generality of the foregoing portions of this sentence, under Law: (i) Staking Affiliate is not deemed to be a "money transmitter" or a similar classification in accordance with applicable anti-money laundering, know-your-customer or similar rules or regulations, and (ii) the performance by Staking Affiliate of this Agreement does not require any licenses, permits, or registrations not possessed by Staking Affiliate.
- Interpretation. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement. The term "Agreement" and any reference to this Agreement or any other agreement or document includes, and is a reference to, this Agreement or such other agreement or document as it may have been, or may from time to time be amended, restated, replaced, supplemented or novated. The language used in this Agreement is the language chosen by the parties, and no rule of strict construction will be applied against a party. The words "including", "includes", and "include" mean "including (or includes or include) without limitation". Any reference in this Agreement to a Person includes his, her, or its heirs, administrators, executors, legal representatives, successors, and permitted assigns, as applicable. Any reference in this Agreement to gender includes all genders, and words importing the singular number only include the plural and vice-versa.
- Waiver. No failure or delay by Delegator or Staking Affiliate in exercising any right or remedy under this Agreement will operate or be deemed as a waiver of any such right or remedy. Without limiting the generality of the foregoing sentence, the conditions described in Section 13will not be deemed to have been waived , nor any claim, right, power, privilege or remedy related thereto waived or released, by virtue of providing the Staking Services to you. Staking Affiliate may terminate the performance of the Staking Services after learning of the non-satisfaction of any of the foregoing conditions irrespective of how long such condition has not been satisfied.
- Governing Law & Forum. This Agreement will be governed by and construed in accordance with the Laws of Liechtenstein. If any claim, dispute, or controversy occurs between the parties relating to the interpretation or implementation of any of the provisions of this Agreement, such dispute will be resolved by private, confidential, and binding arbitration conducted by a single arbitrator. The arbitrator will be appointed by written agreement of the parties, or, in the absence of an agreement, such arbitrator will be appointed by a judge upon the application of a party following notice to the other parties. Arbitration will be held in the jurisdiction agreed to by the parties in writing. The arbitration procedure and rules to be followed will be agreed in writing by the parties or, in absence of an agreement, as determined by the arbitrator. Subject to any right of appeal, the decision arrived at by the arbitrator will be final and binding. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Without limiting the forgoing portions of this Section 16, you may only make a claim or proceeding against Staking Affiliate in your individual capacity and not as a plaintiff or class member in any purported class or representative action or proceeding.
- Notices. Any demand, notices or other communication to be given to Delegator or Staking Affiliate in connection with this Agreement must be delivered by email to Delegator at email@example.com and upon receipt Delegator will promptly deliver a full and true copy of the same to Staking Affiliate.
- Severability. If any provision of this Agreement 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 and legal effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is so amended or unenforceable in any jurisdiction, will be so amended or ineffective only as to that jurisdiction, and only to the extent of such amendment or unenforceability, without invalidating the remaining provisions hereof.
- Force Majeure. Delegator will not be deemed to be in breach of this Agreement for, and Staking Affiliate shall not be liable for any losses, damages, or costs related in any way to, any failure or delay in performance to the extent caused by reasons beyond Delegator’s or Staking Affiliate’s, as applicable, reasonable control, including acts of God, epidemics or pandemics, earthquakes, strikes, shortages, unavailability of materials or resources, acts of hackers or other malicious Persons, and/or Network Determinations (“Force Majeure Events”).
- Third-Party Beneficiaries. Except as set forth in Sections 12, 22, and this Section 20, there are no third-party beneficiaries under this Agreement. Staking Affiliate is a third-party beneficiary of this Agreement and is entitled to rely on and enforce the provisions of this Agreement, including the covenants and representations and warranties made by you and/or Delegator under this Agreement, as though Staking Affiliate were a party to this Agreement.
- Independent Contractors. You, Delegator, and Staking Affiliate are independent contractors. Nothing in this Agreement is or will be deemed to create between you, Delegator, and/or Staking Affiliate a partnership or joint venture or a relationship of principal and agent, employer-employee, or franchisor-franchisee.
- Assignment & Enurement. Neither this Agreement nor any of your rights or obligations under it may be transferred or assigned by you, in whole or in part, without the prior written consent of Delegator and Staking Affiliate and any such attempted assignment or transfer will be null and void. Staking Affiliate may assign any of its rights or duties hereunder without notice or consent. This Agreement will enure to the benefit of and be binding upon the respective successors and permitted assigns of each party.
- Modifications. This Agreement will not be amended or modified by any party without the prior written consent of each of Delegator and Staking Affiliate.
- Paramountcy. If there would otherwise be any legally binding agreement involving you, Delegator, and/or Staking Affiliate that conflict or are inconsistent with this Agreement, this Agreement will prevail over such other agreement to the extent of the inconsistency.
- Entire Agreement. This Agreement is the final and complete agreement between the parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written. No term included in any confirmation, acceptance, or any other similar document from you in connection with this Agreement will apply to this Agreement or have any force or effect. This Agreement will be effective upon any designation of Staking Digital Assets by you for the Staking Services, notwithstanding the non-execution or delivery of this Agreement by any party.
- “Agreement” means these end user terms, dated the date when you first designate Staking Digital Assets for the Staking Services, between you and Delegator, as may be updated, supplemented, or amended from time to time in accordance herewith.
- “Staking Digital Assets” means proof-of-stake blockchain tokens and other digital assets.
- “Law” means any applicable national, provincial, international, federal, state, county, and local statute, law, ordinance, regulation, rule, code, order, decision, standard, policy or terms or conditions having the effect of law.
- “Person” means any individual, organization, business, partnership, entity, corporation, decentralized autonomous organization (DAO), or government.
- “Place of Residence” means the jurisdiction where a Person is located, ordinarily resident, organized, established, or domiciled.
- “Prohibited Content” means content that: (i) is illegal under Law; (ii) violates any intellectual property rights, including copyrights, trademarks, patents, or trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; or (vii) contains viruses, Trojan horses, worms, or any other harmful, malicious, or hidden procedures, routines, mechanisms, or code.
- “Slashing Penalties” means any penalty assessed by the Supported Blockchain for failures in respect of the performance of the Staking Services.
- “Staking Affiliate” means the third-party staking services provider retained and directed by Delegator to perform the Staking Services.
Ethereum Staking. In addition to the terms outlined above, the following terms apply to staking your Ether (“ETH”) through the Staking Services. In the event of a conflict between the terms contained in this section and anything else in this Agreement, the terms in this section will govern:
(i) Lockup Period. If you choose to stake your ETH, your ETH will be pledged for staking and will become locked on the Ethereum protocol until Phase 1.5 of the Ethereum network upgrade is completed. Delegator has no control over the duration of or end date for the lockup period, which will ultimately be determined by the success of the update to the Ethereum network. You will not be able to opt out of ETH staking once you’ve staked your ETH. Delegator will not refund or replace any ETH you wish to unstake. You will not be able to trade, transfer or otherwise access your staked ETH or ETH staking rewards during the lockup period.
(ii) No Guarantee of Success of Network Upgrade. Delegator makes no guarantees that the upgrade to the Ethereum network will be successful, and you understand that if the network upgrade ultimately fails, you may lose all, or a portion of, your staked ETH. Delegator will not be responsible for any ETH lost due to a network upgrade failure.
(iii) Ethereum Staking Rewards. Any rewards earned while staking your ETH through Delegator will, unless otherwise stated, remain locked onchain until Phase 1.5 of the Ethereum network upgrade is completed.