Customer wishes to appoint Custodian to provide custodial services, and Custodian is willing to perform such services directly or through any nominees, agents or sub-custodians selected by Custodian, on the terms and conditions contained in these Terms and Conditions ("Terms"). Coinbitco (as defined below) will act as Customer's agent in respect of Custodian Services (also as described below) provided to Customer by Fireblocks LTD under these Terms.
Coinbitco is not a party to these Terms and does not provide any Custodian Services or services similar to the custodian services. Therefore, the parties agree as follows:
(a) "Wallet", for purposes of these Terms, means a set of private keys ("Key") which can be used to transmit cryptocurrency on the blockchain where Custodian has possession of at least one Key.
(b) "Hot Wallet" means a Wallet where a majority of the Keys are held in online computer systems.
(c) "Cold Wallet" means a Wallet where a majority of the Keys are held offline.
(d) "Custodial Wallet" means a Wallet where a Custodian holds all of the Keys.
(e) "Non-custodial Wallet" means a Wallet where Custodians hold a minority of the Keys.
(f) "Vault" means a Custodial, Cold Wallet where Custodian holds all of the Keys and a majority of those Keys are stored offline.
(g) "Custodial Coins" means those digital currencies held by Custodian for Customer in a Custodial Wallet, Non-custodial Wallet or Vault.
(h) "Account" means any Wallets described in Section 1 (a), (b), (c), (d), (e), (f) (collectively, the "Coinbitco Wallets") established by Customer, or established on behalf of Customer by Custodian, together with any subaccounts associated therewith.
(i) "Fiat Account" means any fiat currency account established by Customer or established on behalf of Customer by Custodian, together with any subaccounts associated therewith.
(j) "Authorized Person" means an employee or officer of Coinbitco (or one of its Affiliates) who Coinbitco has designated to be an authorized party of Coinbitco to access and use the Account, including to send digital currency for deposit into the Account and withdraw digital currency from such Account under these Terms.
Such persons will continue to be Authorized Persons of Coinbitco until Custodian receives Instruction (as defined herein) from Coinbitco that any such person is no longer an Authorized Person of Coinbitco.
Coinbitco shall ensure that any person designated as an Authorized Person is an employee or officer of Coinbitco and shall immediately notify Custodian when it has determined that an Authorized Person shall no longer be an Authorized Person.
(k) "Coinbitco, or Coinbitco Entities" means Custodian and its affiliates.
(l) "Instruction" means an instruction by Coinbitco (as agent for Customer) that has been verified in accordance with a Security Procedure or, if no Security Procedure is applicable, which Custodian believes in good faith to have been given by an Authorized Person.
(m) "Vault Withdrawal Timeframe" means (i) forty-eight (48) business-day hours after Custodian's receipt of Coinbitco's (as an agent of Customer) valid withdrawal request from the Vault by Authorized Person(s) received (and completion of all due diligence and identification requests, including video identification by Coinbitco, collectively "ID Verification").
Coinbitco has agreed with Coinbitco that it will make Authorized Persons available to perform ID Verification within the first twenty-four (24) hours of submission to Custodian of the withdrawal request.
(n) "Custodian Services" means those services provided for Customer under these Terms via Web site and offline storage facilities, including, without limitation, the Account (as defined herein). Custodian will obtain services from Coinbitco, Inc., an affiliate and leading security technology company implementing security and scalability platforms for digital currencies and digital assets.
(o) "Coinbitco" means Imperator Limited UAB, a Lithuanian registered limited company (under the code 306084809) with its registered address Konstitucijos Av. 21A, Vilnius, LT-08130, Lithuania, as well as its owners, directors, investors and employees.
(p) "Customer" means a registered member of Coinbitco's services through its exchange platform as made available on the website www.coinbitco.com (and any successor websites).
a. Custodian is authorized to appoint any nominees, agents or sub-custodians, whether in its own name to perform any of the duties of the Custodian under these Terms and will notify Coinbitco of such appointment in advance and within a reasonable time to allow Coinbitco to notify Customer.
Any reference in these Terms to the Custodian shall, where the context requires, include its nominees or agents sub-appointed by the Custodian on its behalf. Coinbitco will act as Customer's agent in respect of Custodian Services provided to Customer by Coinbitco under these Terms.
Coinbitco is not a party to these Terms and does not provide any Custodian Services or services similar to the custodian services.
b. Customer may instruct Coinbitco (as agent for Customer) to use Custodian Services to request the establishment of, and Custodian shall establish and maintain, an Account as a custodian for the benefit of Customer. For practical purposes, all Wallets operated by Coinbitco will be held by Coinbitco in the name of Coinbitco, acting as an agent for all its members, including each Customer’s Custodial Coins.
c. Custodian hereby acknowledges and agrees that it is a custodian of the Custodial Coins stored in the Account. Any fiat currency stored in a Fiat Account, that (subject to section 2(d)), all legal and beneficial title to the Custodial Coins and fiat currency remains vested in Customer, and that Custodian has no right, interest, or title in such Custodial Coins or Fiat Account.
Custodian hereby confirms that the Custodial Coins and any fiat currency do not constitute an asset on the Custodian’s balance sheet. The Custodial Coins and Fiat Account will, at all times, be identifiable in Custodian's database as being stored in the Account on behalf of Coinbitco (as agent of Customer and other Coinbitco Customers).
d. The parties acknowledge and agree that where Coinbitco charges transaction fees to Customer, it may collect such fees in Customer's Custodial Coins, in which case legal and beneficial title to such Custodial Coins (amounting to no more than the fee) shall transfer from Customer to Coinbitco, and Coinbitco will reflect this in its ledger.
Customer acknowledges and agrees that Coinbitco will be entitled to give instructions for withdrawing such Custodial Coins without Customer's instructions.
e. Custodian acknowledges that its obligations, including the Custodian Services, are performed for Customer, and that as regards the receipt of the Custodian Services, Coinbitco's role is limited to acting as agent of each Customer. Where Customer has a claim or right of enforcement under these Terms, Coinbitco may act as its agent in relation to such claim or enforcement if instructed to do so by Customer.
These Terms form a contract between Custodian and Customer. For the avoidance of doubt, Coinbitco having agreed to pay the Coinbitco fees on behalf of Customer does not prejudice in any way the above position.
f. The parties agree and acknowledge that notwithstanding the direct contractual custodial relationship between Custodian and Customer for the supply of Custodian Services and as otherwise set out in these Terms, if for any reason Coinbitco is held or declared to have any legal or beneficial interest in Customer's Custodial Coins, Coinbitco will, in accordance with the Coinbitco terms of use with Customers, thereafter hold on trust for Customer all such right title and interest which Coinbitco is held or declared to have and (i) all references in these Terms to Coinbitco acting as agent for Customer shall be deemed to be references to Coinbitco acting as trustee for Customer and (ii) all references to Customer shall be deemed to be references to Coinbitco acting as trustee for Customer.
g. The parties acknowledge that Coinbitco may only place Instructions in its role as Customer's agent and only under instructions from Customer in accordance with Coinbitco's terms of use.
(a) Custodian will use best efforts in performing its obligations under these Terms.
(b) Subject to these Terms, Custodian shall not be responsible for any loss or damage suffered by Customer due to the Custodian performing such duties unless the same results from fraud, willful default or negligence on the part of the Custodian.
In such event the liability of the Custodian in connection with the Custodial Coins or Fiat Account so affected by the Custodian's fraud, willful default or negligence shall not exceed the market value (as determined by the Custodian and Coinbitco (as agent for Customer) in a reasonable manner) of such Custodial Coins or Fiat Account at the time when Coinbitco or Customer discovers such fraud, willful default or negligence.
(c) Custodian will be entitled to rely on, and may act upon the advice of, legal counsel and accountants with expertise in the relevant area, concerning matters of law, regulation or market practice.
(d) Custodian shall not, as stated in Section 3(b) above, be responsible for the title, validity or genuineness of any of the Custodial Coins or fiat currency (or any evidence of title to it) received or delivered by it according to these Terms.
(e) Custodian is not acting under these Terms as manager or investment adviser to Coinbitco or Customer, and responsibility for the selection, acquisition and disposal of the Custodial Coins and any fiat currency remains with the Customer at all times. Custodian shall have no obligation to explain or warn of any risks taken or to be taken by Customer (or by Coinbitco on its behalf as agent).
(f) Except for cases of willful fraud or negligence from the Custodian, neither Custodian nor its affiliates shall be liable for any consequential, incidental, exemplary, punitive, special or indirect damages, whether or not Custodian or its affiliates knew the likelihood of such damages.
(g) (g) Each party shall have a duty to reasonably mitigate damages for which the other party may become responsible.
a. Each party represents warrants and covenants that it will perform its obligations under these Terms lawfully. Customer represents warrants and covenants that it will only use the Custodian Services for lawful purposes.
b. Custodian represents, warrants and covenants that Custodian has no ownership interest in the Custodial Coins or Fiat Account.
The duties and obligations of Custodian shall include the following:
a. Safekeeping of Custodial Coins: Custodian shall use best efforts to keep in safe custody on behalf of Customer all Custodial Coins received by Custodian. All Custodial Coins credited to the Account shall be held in the Account at all times, and Custodian shall control the Account at all times.
Custodian will use their best efforts to keep all Keys to the Wallet secure and shall maintain at least one (1) backup Key to use as a replacement. Neither Coinbitco nor Customer will have access to any Key related to Custodial Coins held by Custodian in a Vault. Custodian shall exercise all best efforts to prevent unauthorized access to or use of the Keys to the Wallet.
b. Record Keeping: The books and records pertaining to Accounts, which are in the possession or under the control of Custodian, shall be the property of Customer (only insofar as they relate to Customer's own Custodial Coins) and may be held and accessed by Coinbitco as agent for Customer.
c. Custodian has no duty to inform Coinbitco or Customer of any information on an asset in the Account which the Custodian may have learned in connection with another account or other customer or from any source other than in the operation of the Account.
a. Customer shall only be able to (via Coinbitco as Customer's agent) withdraw Custodial Coins stored in the Vault to a compatible wallet on which Custodian has conducted the due diligence reasonably necessary to ensure that Customer has the rights, title and interest in the compatible wallet necessary for Custodian to perform its obligations under these Terms and applicable law.
Customer will be able to make such withdrawals (via Coinbitco as Customer's agent) within the Vault Withdrawal Timeframes, and agrees to execute instruments, provide information, or perform any other acts as may reasonably be requested by Custodian to carry out due diligence as may be required by applicable law.
b. It is the Customer's responsibility to determine if such compatible wallets (non-custodial wallet) meet any and all requirements, laws and regulations the Customer must fulfill.
c. Custodian shall provide Coinbitco such information as is necessary for Authorized Persons to make deposits to the Account on behalf of Customer.
d. Coinbitco and Authorized Persons shall be able to access the Account at substantially all times, by electronic means, to check information about the Account, add digital currency to the Account, withdraw digital currency from the Wallet and initiate withdrawal of digital currency from the Vault on behalf of Customer.
e. Customer shall not resell Custodian Services or software.
f. Custodian shall credit to the Account all digital currency properly sent to Custodian following Custodian's procedures via Custodian Services by Authorized Persons for the Account. Custodian shall notify Coinbitco (who may notify Customer) electronically of such receipt of Custodial Coins and of such credit to the Account.
g. Custodian shall not allow withdrawals of any Custodial Coins from the Account except those withdrawals made by Authorized Persons on behalf of Customer, as identified by Coinbitco to Custodian and whose identity has been reasonably confirmed by Custodian using best efforts, in its capacity as a professional, using methodology agreed by Coinbitco and consistent with Custodian's customer identification protocols.
Custodian shall debit all Custodial Coins withdrawn by Authorized Persons from the Account. Custodian shall notify Coinbitco and the relevant Authorized Person(s) of such withdrawal and debit from the Account.
h. Custodian shall not accept fiat currency deposits from third parties for the benefit of Customer. Fiat currency deposits shall only be accepted from banks that have successfully completed Custodian's BSA/AML program and are in the name of an individual or an institution named on the Fiat Account.
i. Fiat currency withdrawals are only permitted to bank accounts that have successfully completed Custodian's BSA/AML program and are in the name of an individual or an institution named on the Fiat Account.
j. Notwithstanding the foregoing, Custodian reserves the right, at is discretion, to suspend Coinbitco's (as Customer's agent)access to the Account or use of Account by any Authorized Persons, and extend, indefinitely, Vault Withdrawal Timeframes if, in Custodian's good faith belief, such restriction is reasonably necessary to comply with Custodian's anti-money laundering programs and policies, any requirements under applicable law, to prevent fraud, prevent suspicious transaction, or for any security reasons.
Customer acknowledges that Coinbitco has agreed with Coinbitco on certain arrangements regarding the identity of Authorized Persons and their activities, and does so on Customer's behalf. Customer shall not be entitled to access the Account other than via Coinbitco as Customer's agent following Customer's instructions to Coinbitco.
a. Customer agrees that all "airdrops" and "forks" will be handled by Custodian pursuant to its custodial fork policy (the "Coinbitco Fork Policy"). Customer acknowledges that Custodian is under no obligation to support any airdrops or forks or handle them in any manner, except as detailed in the Coinbitco Fork Policy.
Customer further acknowledges that Custodian, at its sole discretion, may update the Coinbitco Fork Policy from time to time and post it on Custodian's website and Custodian will provide notification to Customer (which it may do via Coinbitco) of any significant modification to the Coinbitco Fork Policy in advance and within a reasonable time.
b. Customer further acknowledges and agrees that Custodian may, from time to time, offer support for select ERC20 tokens or other tokens, metacoins, colored coins, side chains, or coins which enhance or interoperate with coins supported by Custodian (collectively, "Tokens"). Until Custodian notifies Customer (which it may do via Coinbitco) and the general public that Custodian supports a particular Token, neither Customer nor Coinbitco on its behalf may use the Account, Wallet, or any of the Custodian Services in any manner whatsoever for such Token.
This means, in particular and without limitation, neither Customer nor Coinbitco on its behalf should not attempt to receive, request, send, store, or engage in any other type of transaction involving any Token unless expressly supported by Custodian. Customer acknowledges that Custodian may, in its sole discretion and with reasonable notice, amend its list of supported Tokens from time to time by posting the update on the Custodian website.
Customer further acknowledges and agrees that, upon the occurrence of any event outside the control of Custodian resulting in the migration of any ERC20 token from Ethereum to another protocol, including but not limited to a "mainnet launch" (a "Migration Event"), Custodian may immediately cease any support for such ERC20 token, and that Custodian will be under no obligation to provide support for any Token related to or resulting from such a Migration Event.
CUSTODIAN WILL HAVE NO RESPONSIBILITY OR LIABILITY IF CUSTOMER OR COINBITCO ON ITS BEHALF LOSES, BURNS, OR OTHERWISE CANNOT ACCESS OR CONTROL ANY TOKEN THAT CUSTODIAN DOES NOT SUPPORT.
a. Customer agrees that Customer will not voluntarily use the Account or Custodian Services to perform any type of illegal activity of any sort or take any action that negatively affects the performance of Custodian Services. Customer may not engage in any of the following activities with respect to Custodian Services, nor may Customer help a third party in any such activity:
b. Use of Custodian Services in any transaction involving illegal products or services is prohibited.
c. Custodian shall have the right to suspend Customer's (or any Coinbitco Authorized Person's) access to the Account in case of any breach of Section 9(a) of these Terms.
d. Customer shall remain fully responsible for any acts or omissions of Coinbitco's Authorized Persons. Custodian shall bear no responsibility for any transactions in Account or resultant losses or damages to Customer caused by any acts or omissions of Authorized Persons.
e. Customer shall not engage in any activity deemed by Custodian, in its sole discretion, to be potentially harmful to the reputation or business or Custodian or its affiliates or to interfere with such business activities tortiously.
Coinbitco (acting on behalf of Customer as agent) and Coinbitco will enter into arrangements in respect of money-laundering and other applicable laws relating to the Custodian Services.
a. Coinbitco (as agent for Customer) shall comply with any application security procedures concerning the delivery or authentication of Instructions and shall ensure that any codes, passwords or similar devices are safeguarded in keeping with security best practices. Custodian shall exercise best efforts in fulfilling its duties under this Section 11(a).
b. Custodian does not guarantee the value of digital currency. Custodian shall not be responsible for any third-party services. Furthermore, Custodian cannot cancel or reverse a transaction involving digital currency. Once a transaction request has been made, Coinbitco (as agent for Customer) will subsequently not be able to cancel or otherwise modify a transaction request.
Coinbitco (as agent for Customer) acknowledges and agrees that Custodian shall have no liability for losses Customer suffers in connection with any digital currency transaction voluntarily initiated by Coinbitco (as agent for Coinbitco's Members) via Custodian Services. Under these Terms unless such losses are the direct result of a negligent act by Custodian.
Custodian does not ensure that any transaction request Coinbitco (as agent for Customer) submits or causes to be submitted to a digital currency network via Custodian Services will be completed by the applicable network.
Customer acknowledges and agrees that the transaction requests Coinbitco (as agent for Customer) authorizes Custodian to submit for completion on a digital currency network that may not be completed or substantially delayed by the digital currency network.
Custodian is not responsible for any delay or failure of completion caused by the digital currency network. When Coinbitco (as agent for Customer) completes a transaction request, Coinbitco (as agent for Customer) authorizes Custodian to submit the transaction request to the digital currency network in accordance with the instructions Coinbitco (as agent for Customer) provides.
Custodian shall be indemnified by Customer against any liabilities, direct losses, damages, costs and expenses (including but not limited to legal fees) incurred by Custodian and arising out of any action taken or omitted to be taken in professional and good faith by the Custodian hereunder or pursuant to any Instructions, including but not limited to (i) any taxes or other governmental charges, and any expenses related thereto, which may be imposed or assessed concerning the Custodial Coins, and/or (ii) the Custodian or any nominee or agent of the Custodian, appearing as holder or holder of record of the Custodial Coins or any part thereof, but excluding those liabilities, losses, damages, costs and expenses which arise (whether through act or omission) as the result of fraud, willful default or negligence on the part of the Custodian in the performance of its duties under this Agreement.
Custodian agrees that Coinbitco may pay its fees. Customer will not be charged any fee for the Custodian Services. This does not prejudice the fact that Custodian provides the Custodian Services for Customer, and Coinbitco's role in respect of Custodian Services and Custodian Coins is limited to acting as agent of Customer.
Customer acknowledges that the Custodian Services will cease where Coinbitco's agreement with Coinbitco terminates or expires.
a. Customer shall be liable for all taxes with respect to any Custodial Coins held on behalf of Customer or any transaction related to it. Custodian shall instruct the applicable withholding agent to withhold and remit to the appropriate governmental authority the amount of any tax required to be withheld under applicable law in respect of any proceeds or income from the sale or transfer of any digital currency.
b. Customer is responsible for preparing and filing any tax return, paying taxes, and expenses and accountant or attorney expenses related to the preparation of the tax return or resulting from the operation of these Terms. Custodian is responsible for submitting reports to the IRS and Customer in accordance with IRS regulations.
a. Notwithstanding anything to the contrary in these Terms, Custodian shall not be responsible or liable to Customer for failure or inability to perform under these Terms or for any loss of Custodial Coins to the extent Custodian did not, through its negligence, cause or contribute to such loss and such failure, inability or loss is attributable to:
a. Neither party shall be liable to the other party (whether under contract, tort (including negligence) or otherwise) for any indirect, incidental, special or consequential losses suffered or incurred by the other party (whether or not any such losses were foreseeable or within the contemplation of the parties).
b. Neither party's total aggregate liability arising out of or relating to these Terms will exceed the total fees paid or payable to Custodian under these Terms during the 12-month period immediately preceding the incident giving rise to such liability.
c. The exclusions and limitations of liability shall not apply to (i) a party's breach of its confidentiality obligations under these Terms; (ii) a party's breach of its indemnification obligations under these Terms (or any amounts paid or payable in connection with such obligations); or (iii) a party's negligence or willful misconduct.
a. Headings: The headings in these Terms are for reference only and shall not affect the construction or interpretation of any of the provisions herein.
b. Notices: All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission and electronic mail ("e-mail") transmission, so long as a receipt of such e-mail is requested and received) and shall be given, if, to Customer, to its agent:
Imperator Limited UAB
(a Lithuanian registered limited company)
Attn: Legal Department
Konstitucijos Av. 21A
Vilnius
LT-08130, Lithuania
[email protected]
or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto. Each of the preceding addresses shall be effective unless and until notice of a new address is given by the applicable party to the other parties in writing.
Notice will not be deemed to be given unless it has been received.
c. Relationship of the Parties: Nothing in these Terms shall be deemed or is intended to be deemed, nor shall it cause, Coinbitco, Customer, and/or Custodian to be treated as partners, joint ventures, or otherwise as joint associates for profit.
d. Governing Law: These Terms shall be governed by and construed in accordance with the law of the State of South Dakota without regard to the conflicts of law rules of such state.
e. Jurisdiction: The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, these Terms or the transactions contemplated hereby shall be brought in a Lithuanian count, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts from there) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
f. Claims: It is the intention of the parties that no third party shall have or assert any rights, claims or remedies against any party in respect of any action, omission, failure or neglect in the performance of any responsibilities referred to in these terms.
g. Amendments and Waivers:
h. Successors and Assigns: The provisions of these Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns but the parties agree that no party can assign its rights and obligations under these Terms without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed.
i. Entire Agreement; Terms and Policies: These Terms embody the entire agreement and understanding among the parties hereto and supersedes all prior agreements and understandings, oral or written, relating to the subject matter of these Terms [including any agreements Coinbitco may have previously entered into with Custodian for its Hot Wallet solution(s).
No oral representations or other agreements have been made by the Parties or are to be taken as mutually explanatory of one another. And n the case of ambiguities or discrepancies within or between such parts, the same shall be explained. If interpreted in a manner which gives effect to each part and which avoids or minimizes conflicts among such parts, the parties have made no oral representations or other agreements.
j. Severability: If any term, provision, covenant or restriction of these Terms is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of these Terms shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the services contemplated hereby is not involved in any manner materially adverse to any party.
Upon such a determination, the parties shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the services contemplated hereby be consummated as originally considered to the fullest extent possible.
k. No Advice: Customer acknowledges that Custodian is not providing any legal, tax, or investment advice in providing the services under these Terms.
l. No Third-Party Beneficiaries: A person who is not a party to these Terms shall have no right to enforce any term of these Terms.