Last update: 12 March 2025
INTRODUCTION
Tokeny S.à r.l., a private limited liability company registered in Luxembourg under number B218805 and with registered address at 9 Rue du Laboratoire, L-1911 Luxembourg (commercial name “Tokeny Solutions” and hereinafter referred to as “Tokeny”), provides the “Tokeny Digital Assets Issuance and Servicing Services”. These services are multi-layered and are generally being offered in a “Software as a Service (SaaS)” mode.
Tokeny’s services are designed to support issuers of a Digital Asset Offering with various technology services to optimise their experience in tokenising financial instruments (the “Services”). The Services are intended to be provided solely to professional clients, not consumers. Having considered the characteristics and suitability of the Services for its needs, as further detailed in any Purchase Order accepted by the Customer, the Customer wants to place an order for said Services under the general terms of service and conditions set out herein (hereinafter referred to as the “Terms of Service”). The acceptance of the Tokeny Purchase Order by the Customer automatically constitutes full acceptance of these Terms of Service.
DEFINITIONS
Unless otherwise defined in these Terms of Service, terms beginning with a capital letter, used in the singular or plural, shall have the meanings given to them hereinafter.
Additional Services: refers to any separate service that the Customer may order in the Purchase Order as they appear in the Tokeny catalogue or by ad-hoc quotation if Tokeny is in a position to issue such quotation.
Anomaly: means a repeatable failure or unavailability of the Services or the relevant software.
Applications: refers to access to the Services through a set of parameters which is identified by a unique ID number corresponding to the Digital Asset Offering, made available to the Customer and allowing it to combine data and set its presence on the platform.
Business Day: means a day that is not a Saturday, a Sunday or a public or banking holiday in Luxembourg.
Contract: means the whole of these Terms of Service (including any joint controllers’ agreement) and the Purchase Order signed by the Customer (and its appendices, if any), with the exclusion of any other document.
Contributor: means any individual, company or organisation that contributes to, subscribes to, or invests in any digital assets issued by a Customer.
Customer: means any individual, company or organisation that purchases a Service from Tokeny.
Data: refers to the data and files added on the Tokeny platform as a result of the Application of the Customer, hosted in connection with the Service. Data loaded by the Customer are strictly related to its professional activity and must comply with the terms of the Contract. They include data from the Customer’s counterparts (Investors, agents, …) that participate in a way or another in the Digital Asset Offering process or acquire Customer’s digital assets or tokens.
Digital Asset Offering: means the issuance of financial instruments (as such term is defined in Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments) or any other assets specified in a Purchase Order, in the form of digital assets (or tokens) by a Customer, where Contributors can subscribe to, contribute to, or acquire digital assets (or tokens) issued by a Customer.
Documentation: means the Services’ standard documentation, available online and/or provided to the Customer.
Evolution: means the functional or technical evolution of the Services implemented by Tokeny, which may be deployed automatically to its Customers, in each case at Tokeny’s sole discretion.
Infrastructure: means the technical infrastructure used by Tokeny through its web hosting subcontractor to provide the Services.
Initialisation: refers to the services provided prior to the Service consisting of (i) setting the Service and (ii) Data loading. The indicative content of the Initialisation is set out in the Purchase order.
Investors: means the Customer’s digital asset or token holders involved in transactions via the Services and in certain cases digital asset or token buyers or receivers via alternative means after the initial Digital Asset Offering.
Maintenance: means the correction of any Anomalies or any maintenance due to an Evolution.
ONCHAINID: refers to a blockchain-based identity ecosystem to identify individuals, companies, organisations and DeFi protocols. Each identity is materialised by a set of smart contracts deployed on the blockchain and managed by the individual, company, organisation or DeFi protocol behind such identity.
Purchase Order: means the purchase order stipulating the details of the Services as ordered by the Customer, entirely subject to the Terms of Service.
Period: means the duration of the Services. The Period is stipulated in the Purchase Order and can be open-ended or for specific dates.
Services: refers to the Tokeny products and services described in the Purchase Order.
Smart Contract: refers to any programmable code based on blockchain provided or used by Tokeny as part of its Services, including any smart contract allowing the Contributors to receive and trade Customer’s digital assets or tokens.
User: means any individual, company or organisation having a user account to access one or more of Tokeny’s products, services or solutions on behalf of a Customer, including Investors and Contributors, to the extent applicable.
PURPOSE
The purpose of these Terms of Service is to define the terms and conditions under which the Customer benefits from the Services in exchange for fees paid to Tokeny.
CONTRACTUAL DOCUMENTS
These Terms of Service (including any joint controllers’ agreement) and the Purchase Order signed by the Customer (and its appendices, if any), shall together constitute the Contract, excluding any other document such as the Customer’s terms of purchase and/or Tokeny’s commercial proposals. In addition, some modules of the Services developed or provided by third parties may give rise to additional terms and conditions, which the Customer must accept in order to use such modules.
In case of conflict between the Purchase Order and these Terms of Service, the Purchase Order shall prevail. In case of doubt about the extent or nature of the Services, the Purchase Order shall be interpreted in accordance with these Terms of Service and Tokeny’s previous commercial proposal.
DURATION
The Contract shall become effective from the date of receipt by Tokeny of the Purchase Order signed by the Purchaser or accepted by the Customer through the selection of a purchase plan on the website, for the Period stipulated in the Purchase Order or until the Contract is terminated in accordance with these Terms of Service.
SERVICES
SETTING UP SERVICES
Tokeny offers to set up various Services related to the Customer’s digital assets or tokens’ issuance and servicing needs, which may include smart contracts, and dashboards. The Customer acknowledges that, in all cases, it is solely responsible for (i) adapting its practices to the features and management rules of the Services, (ii) conducting any required management or internal changes, and (iii) configuring all Services.
The Period is set out in the Purchase order.
In case of a Customer request for a specific adjustment that is beyond a Service’s settings’ capability, Tokeny may submit an additional specific quote to the Customer, outlining the timing and fees for the specific requested adjustment.
DATA LOADING
Where applicable, the Customer makes its Data available in the manner specified by Tokeny, which loads them in the Infrastructure, blockchain, dashboard and where else needed by reproducing them. The Customer is solely responsible for the quality and nature of the Data transmitted to Tokeny for loading purposes. The Customer shall ensure the integrity, legality and correct use of the Data.
SERVICE INTERCONNECTION
In principle, the interaction is done via the Service’s interfaces and APIs without additional integration diligence. If the Customer requires a deeper integration service, it must formulate the request with Tokeny, and Tokeny may propose a fee quote. In all cases, the Customer is solely responsible for obtaining the necessary rights and authorisations for any interconnection with the relevant publishers and is solely responsible for any damage that may occur in case of failure of a third-party item. More generally, Tokeny assumes no liability for any malfunction of the Services or damage to Data caused by any third-party software or services with which the Services interact. Tokeny does not guarantee that the compatibility of the Services with the Customer’s websites or with its Smart Contracts will be permanent, given the fact that the websites and Smart Contracts are not under Tokeny’s control, which the Customer acknowledges.
SERVICES OPENING
The Customer accesses the Services via the resources made available by Tokeny, the Customer’s workstations only constituting terminals on which the Data and features of the Services are displayed.
The Customer is solely responsible for actions performed using the assigned code and Digital Asset Offering smart contracts. Tokeny assumes no responsibility for any intentional or unintentional disclosure by the Customer of the passwords or other information provided by Tokeny. The Customer shall be the only party authorised by Tokeny to use the Services and, if applicable, Tokeny may separately invoice the Customer for any costs related to checks and/or repairs carried out in case of fraudulent introduction or use of the Service by unauthorised third parties.
DESCRIPTION OF SERVICES
SCOPE OF SERVICE
The Services may include grey label issuance platforms, servicing services, cloud solutions, dashboards and other optional services selected by the Customer, in each case as described in the Purchase Order. The Services to be provided to the Customer may include standard tools that are necessary for the Customer to carry out a Digital Asset Offering and operate the servicing of their digital asset or token.
Some or part of certain services may be developed by third parties and incorporated into the Services by Tokeny. Where appropriate, Tokeny may submit specific additional requirements for these services to the Customer, the Customer acknowledging that it can only use these services and offer them to Investors by agreeing to the terms and conditions of the third parties offering such services.
The Services and the Customer’s Data are hosted on Tokeny’s servers or its hosting subcontractor’s servers (at Tokeny’s sole discretion), enabling the remote processing and safeguarding of Data. (additional details as to the locations for the processing and storing of data are detailed below).
The Services fee may be limited to a maximum number of Investors or Digital Asset Offerings (tokens), to the extent specified in the Purchase Order. If exceeded, Tokeny will automatically charge the top bracket fee in proportion to the excess recorded. The journals, logs and records of Tokeny, or its hosting subcontractor, or any of its third-party sub-contractors are used as evidence in disputed cases, which the Customer acknowledges.
For the purposes of executing the Services, the Customer expressly grants Tokeny, its hosting subcontractor and any of its third-party subcontractors, a personal, non-assignable and non-transferable right to reproduce the Data on the Infrastructure during the Period and as long as legally required, in accordance with any joint controllers’ agreement attached to these Terms of Service.
Tokeny is not a party and is not involved in any way in token subscription or purchasing transactions between the Customer and its Investors, in transactions between Investors and the Smart Contracts of the Customer or in transactions among Investors. It is solely for the Customer to organise its relationships and provide the Investors with conditions of use that the Customer will monitor and ensure compliance with, in particular in relation to the use and availability of the Services. The Customer shall be solely responsible for keeping a record of payments and transactions made while making use of the Services, particularly to meet its legal, tax and accounting obligations. The Customer shall be fully liable for any unauthorized use of smart contracts, code, software or dashboard provided or facilitated by Tokeny, outside of the scope of Tokeny’s Services, and shall inform Tokeny immediately as soon as it becomes aware of such unauthorized use.
SECURITY
Tokeny implements security measures that comply with the highest and most up-to-date standards in force, under an obligation of means, against unauthorised access or damage to Data. It ensures the locking of the software and the Infrastructure. Tokeny will use best-in-class security practices to ensure the safety of its data and code. While Tokeny will make its reasonable efforts to use the best security practices available, there may be instances where third parties (e.g. hackers) can commit data breaches and other security breaches. Said security breaches will not be the responsibility of Tokeny, and Tokeny shall not be liable for any security breach. However, Tokeny will use its reasonable efforts to secure and fix any such breach as soon as possible to help its Customers.
BACKUPS
The Services include a data backup function, performed daily in order to allow the reconstruction of Data on the same day in case of damage. Backups are stored for a maximum of 30 calendar days. In this period, the Customer may request that a backup copy is provided to it within seven (7) Business Days, and that attempts are made to reconstruct the integrity of its Data in the event of an incident not originated by the Customer that caused the deterioration of said Data.
ADDITIONAL SERVICES
The Customer may ask Tokeny for support with additional services not included in the Purchase Order, which are either included in the default Tokeny service catalogue applicable on the date of the Customer’s request, or could be made available on an ad-hoc basis if Tokeny is in a capacity to address such request. Tokeny reserves the right to accept or refuse such request at its own discretion, and disclaims any liability in case of incompatibility with, or malfunctioning of, any third-party software or services.
SERVICES TO THE INVESTORS
Tokeny may also provide ONCHAINID services directly to the Investors and any other third parties, relating to the creation, development, management and use of a digital identity linked to the individual, company, organisation or DeFi protocol behind such identity (hereinafter referred to as an “ID Owner”). o that effect, as a technology provider, Tokeny provides a separate service to the ID Owners strictly related to the provision of their digital identity via ONCHAINID. Access to ONCHAINID is subject to prior approval of the ONCHAINID Terms of Service by the relevant ID Owner. Therefore, the Customer must communicate the ONCHAINID Terms of Service to its Investors when they start using Tokeny’s Services.
RIGHT OF USE
The signing of a Purchase Order with Tokeny leads to the Customer being given a personal, non-exclusive, non-assignable and non-transferable right to use the Services in strict compliance with the Contract, from the opening of the Customer’s access, until the end of the Period (including any renewals), in exchange for payment of the fees specified in the Purchase Order.
Use of the Services means the exploitation of the Services by Users expressly designated by the Customer, within the limit of the number of services stipulated in the Purchase Order. Any corrections, updates or new versions of the Services, within the scope of the Purchase Order, are subject to the conditions set out in these Terms of Service.
Regardless of the number of Services that are generated based on the number stipulated in the Purchase Order, the Customer cannot make any Services or Tokeny’s know-how or code available to the public. It is strictly forbidden to manufacture, distribute, transfer or otherwise make available to third parties any Services without Tokeny’s prior approval.
Consequently, any use of the Services other than its intrinsic use by the Customer shall be prohibited, unless expressly authorised by Tokeny in writing. As such, the Customer shall prohibit its Users and Investors from carrying out (i) any temporary or permanent reproduction of all or part of the Services by any means whatsoever, (ii) decompiling or reverse engineering of the Services or Applications, regardless of whether it results in a similar service, (iii) any interfacing or integrating with other services or software without prior authorisation from Tokeny, (iv) any dissemination, distribution, or reproduction of the Services for the benefit of another business, the public or third parties (except the Customer’s Investors, to the extent required for a Digital Asset Offering by the Customer), (v) any adaptation or modification of the Services whatsoever, or (vi) any entry or attempted fraudulent entry not authorised on the Infrastructure. Similarly, any extraction or reuse of a qualitatively or quantitatively substantial part of the Services, and any attempted fraudulent or non-authorised introduction on the Infrastructure are prohibited.
The Customer agrees to use each of the Services for its intended purpose, in accordance with its relevant Documentation, the legal and professional rules applicable to the Customer’s activities, as well as the provisions of the Contract. The right of use is granted to the version of the services available at the time of signing of the Purchase Order, which may be updated to the latest version pursuant to an Evolution at the sole discretion of Tokeny.
LIMITATIONS OF USE
Tokeny may offer the Services in remote mode. Tokeny supports the hosting of Data sent by the Customer. Accordingly, the Customer agrees to store and process Data in compliance with all data protection laws and regulations, and any joint controllers’ agreement attached to these Terms of Service. In particular, the Customer is prohibiting and forbidding Users and investors to treat or store through the Services any Data contrary to any laws, regulations or public policy, including any racist, xenophobic, bigoted, proselyte, defamatory, libelous, obscene, pornographic or violent content, or that may damage the protection of privacy, the image of people or the rights of third parties (including by storing files obtained in violation of the rights of the authors). As such, the Customer guarantees Tokeny against any recourse claims, eviction action or condemnation pronounced against Tokeny because of Data, including any damages, compensation, litigation and/or consulting costs.
The Customer is solely responsible for any Data loaded, processed or treated, and for any instructions that activate procedures and results. It undertakes not to use the Services contrary to any regulations applicable to its business, or assist in such use.
When storing Data contrary to the provisions set out herein or using the Services for any purpose other than stipulated in the Contract as part of the Customer’s business, Tokeny reserves the right to (i) remove the disputed Data in an emergency or threat on the Infrastructure and notify the Customer thereof, (ii) suspend access to the Services immediately and without notice, and/or (iii) terminate the Contract of the Customer. Such termination shall not give rise to any compensation whatsoever, without prejudice to any damages that Tokeny may claim from the Customer as a result of the Customer’s actions.
There is no contact, commitment or responsibility from Tokeny vis-à-vis the Customer’s Investors in relation to the provision of the Services. It is up to Customer to inform its Investors of the terms of making the Service available in strict compliance with these Terms of Service. Tokeny shall be allowed to keep the Customer’s Investors as its own users (including, but not limited to, providing ONCHAINID services) throughout the Period and following the termination of the Contract.
DIGITAL OPERATIONAL RESILIENCE
DISCLAIMER
The Customer remains solely responsible for determining whether any function supported by the Services qualifies as critical or important under Regulation (EU) 2022/2554 on digital operational resilience for the financial sector (DORA) and, should that be the case, undertakes to immediately notify Tokeny in written form. Tokeny shall not be under any obligation to amend the Contract in order to reflect the relevant provisions of DORA relating to Services that qualify as critical or important functions, in which case the Customer shall have a right to terminate the Contract in accordance with the termination provisions included in these Terms of Service.
The Customer represents and warrants that, prior to entering into this Contract, it has assessed and concluded that the Services to be provided do not support any of its critical or important functions as defined under DORA. Accordingly, Tokeny shall have no obligation to implement additional safeguards, contingency measures, or oversight mechanisms beyond those expressly set out in this Contract.
The Contract does not relieve the Customer and its management body of its regulatory obligations and its responsibilities to its clients, and the Customer shall be solely responsible of ensuring that the Contract does not to contravene any supervisory restrictions on services and activities.
DUE DILIGENCE
The Customer confirms that that, prior to entering into the Contract, it has conducted all necessary due diligence on Tokeny, ensuring that it is suitable for the provision of the Services, taking into account a list of elements including, among others:
(a) the business reputation of Tokeny, their financial, human and technical resources, and their information-security;
(b) the organisational structure, including risk management, and the internal controls of Tokeny;
(c) the transferability of the Services to another ICT third-party service provider, including as a result of technology specificities; and
(d) all relevant risks, including any potential ICT concentration risk.
The Customer represents and warrants that, prior to entering into this Contract, it has defined its business needs in relation to the Services to ensure alignment with its operational and strategic objectives and conducted a comprehensive risk assessment at entity level, and where applicable, at consolidated and sub-consolidated levels. The Customer confirms that such risk assessment has considered the impact of the Services on the Customer, particularly in relation to:
(i) Operational risks, including business continuity and resilience;
(ii) Legal risks, including regulatory compliance obligations;
(iii) ICT risks, including cybersecurity threats and system vulnerabilities;
(iv) Reputational risks, including risks arising from service disruptions or security incidents;
(v) Confidentiality and personal data risks, including compliance with data protection laws;
(vi) Data availability risks, ensuring continuous access and recoverability;
(vii) Geographical risks related to the location of data processing and storage;
(viii) Location-based risks concerning the jurisdiction of Tokeny; and
(ix) ICT concentration risks, evaluating the potential over-reliance on Tokeny for critical or important functions.
The Customer represents and warrants that, prior to entering into the Contract, it has made an analysis and concluded that Tokeny complies with appropriate information security standards. The Customer further represents that it has taken all necessary steps to mitigate any identified risks and ensure compliance with its internal ICT risk management policy and regulatory obligations.
Therefore, the Customer concluded that Tokeny is suitable for the provision of the Services and identified no conflicts of interest or any other risks arising from this Contract.
Tokeny undertakes, to the extent necessary, to reasonably cooperate for the purpose of such due diligence exercise, and provide the necessary information to enable the Customer to make an informed decision.
COMPLIANCE
The Customer represents and warrants that the Services to be provided under this Contract are in full compliance with:
(a) its policy on arrangements regarding the use of ICT services provided by ICT third-party service providers (such as Tokeny)
(b) its ICT risk management framework;
(c) its information security policy;
(d) its ICT business continuity policy;
(e) its requirements on incident reporting; and
(f) its digital operational resilience strategy.
The Customer shall implement and maintain appropriate oversight measures to verify such compliance on an ongoing basis and shall provide Tokeny upon request with any relevant policy updates or requirements necessary to align the Services with its ICT services risk management framework, if applicable.
The Customer represents and warrants that it has implemented adequate policies, procedures, and governance arrangements to ensure the resilience and continuity of the functions supported by the Services, including measures to mitigate risks arising from disruptions of the Services.
The Customer acknowledges and agrees that it remains fully responsible for maintaining and updating a register of all contractual arrangements regarding the use of ICT services (including the Services).
The Customer acknowledges and agrees that it remains fully responsible for compliance with all obligations under DORA, if applicable, and any other applicable financial services law, including the management of ICT third-party risk as an integral part of its ICT risk management framework. The Customer further agrees to waive any right to claim responsibility from Tokeny for any non-compliance with its obligations under DORA or related obligations, and shall hold Tokeny harmless from any liability arising from such non-compliance.
NON-INVOLVEMENT
The Customer acknowledges and agrees that the Services provided under this Contract do not include the outsourcing of any reporting activities required under applicable laws and regulations and that it remains solely responsible for fulfilling all regulatory reporting obligations.
The Customer acknowledges and agrees Tokeny shall not be required to participate in any information-sharing arrangements established by the Customer, including those involving public authorities, other financial entities, or third parties. Tokeny shall have no obligation to share, contribute to, or be associated with any such arrangements, nor shall it be required to use dedicated IT platforms or other operational mechanisms related to such information-sharing frameworks.
AUDITS
To the extent that the Customer is required under DORA to assess Tokeny’s compliance with applicable ICT risk management requirements, the Customer shall have the right to access, inspect, and audit Tokeny on a risk-based approach to assess compliance with applicable ICT risk management requirements not more frequently than once every three (3) calendar years, with the first assessment to be done at the earliest three (3) calendar years following the entry into the Contract, unless otherwise required by applicable law or regulatory authorities. The scope of the audits shall be defined in advance and notified to Tokeny at least six (6) months before the audit, adhering to commonly accepted audit standards and any applicable supervisory instructions.
SUBCONTRACTING AND LOCATIONS
Tokeny may subcontract all or part of the Services, including its subcontractor host, but remains responsible for all Services to the Customer under the terms set out in these Terms of Service.
The Services shall be provided (by Tokeny or one of its subcontractors), and all data processed or stored, in the following regions/countries: Ireland.
Any change to these locations, including storage locations, shall require prior notification to the Customer. Tokeny shall not transfer, process or store Customer data outside these locations without prior written consent from the Customer.
TESTING AND TRAINING
The Customer shall extend an invitation to Tokeny to participate in the ICT security awareness programme and digital operational resilience training developed by the Customer, in accordance with its internal policies and the complexity required for the relevant functions. Participation by Tokeny shall be on a voluntary basis. Such participation shall include engagement in cybersecurity exercises, awareness campaigns, and technical training sessions necessary to enhance the resilience of the Services.
Where the Services fall within the scope of Threat-Led Penetration Testing (TLPT), the Customer shall take the necessary measures to facilitate Tokeny’s participation while retaining full responsibility for compliance with applicable regulations.
The Customer hereby acknowledges and agrees that Tokeny shall have the right, on a discretionary basis, to directly enter into contractual arrangements with an external tester for the purpose of conducting, under the direction of a designated financial entity appointed by Tokeny, the TLPT, involving multiple financial entities to which Tokeny provides ICT services (including but not limited to the Services).
Such pooled testing shall cover the Services and shall be deemed a TLPT carried out by the participating financial entities.
The coordinating financial entity appointed by Tokeny, on behalf of, among others, the Customer shall implement effective risk management controls to mitigate any potential risks, including impacts on data, damage to assets, and disruptions to critical or important functions, services, or operations.
At the end of the testing, the financial entity appointed by Tokeny and, where applicable, the external testers shall provide to Tokeny a summary of the relevant findings, the remediation plans and the documentation demonstrating that the TLPT has been conducted in accordance with the relevant requirements.
MAINTENANCE & RESTORATION
GENERAL PRINCIPLES
In case of an Anomaly affecting the Services, the Customer must report it by email to the address indicated by Tokeny in the Purchase Order, who handles reports during Business Days and normal working hours(i.e. from Monday to Friday, except public holidays in Luxembourg, from 9 a.m. to 5 p.m. CET). In its report the Customer shall indicate the circumstances of the Anomaly and the Customer shall provide Tokeny with all necessary information to address the Anomaly.
Tokeny shall implement the diagnosis of the Anomaly to define if it relates to a software problem or remote connection, or if it is external to the Services (the blockchain itself for example). If the cause of the Anomaly or malfunction is not attributable to the Services, it does not come under Maintenance. However, the Customer may request Tokeny to provide it with a fee quote to try to work on the origin of the Anomaly or malfunction of the Services, to the extent that Tokeny can intervene.
In addition, the Customer acknowledges the possibility of interruption of the Services (i) to update security measures, (ii) for technical maintenance of the Infrastructure, (iii) in case of intervention or Maintenance, and/or (iv) in case of Evolution of the Services. Tokeny will make its reasonable efforts to inform the Customer of such interruption with prior notice of at least 24 hours, to the extent possible, and minimise the downtime of the Services as a result of the interruption. An interruption is not deemed to have occurred to the extent that the Services remain available to the Customer.
RESTORATION OF SERVICE
Tokeny shall have an obligation of means to keep the Services available 99.5% of the time, calculated on an annual basis, during the Period. In the event of an Anomaly consisting of unavailability or slowdown signalled by the Customer, Tokeny shall make reasonable efforts to restore the services as soon as possible.
MAINTENANCE OF SERVICE
In the event of an Anomaly or malfunction related to features of the Services, reported by the Customer, Tokeny shall determine its severity. For the most critical Anomalies, Tokeny makes its reasonable efforts to implement a remediation process, and corrects the mistake as soon as possible, to the extent possible, as part of an obligation of means. Less critical anomalies can be corrected as part of the initialisation of the next version of the service, as defined by Tokeny at its sole discretion.
In the event of an urgent action requested by the Customer outside Business Days or working hours, Tokeny may apply additional fees at the rates provided by Tokeny to the Customer.
Each operation is subject to a Maintenance ticket at Tokeny, which records the time of consideration of the report, the explanations of the Customer and corrections, until closure of the incident confirmed to the Customer by email or phone. In case of dispute, the Customer acknowledges that, until it provides sufficient evidence in front of a competent court, only the logs and records of Tokeny shall be considered as true and authentic.
Tokeny shall ensure the continuous accessibility, availability, integrity, security, and protection of data of the Customer processed or stored as part of the Services. To this end, Tokeny shall:
(a) Maintain the highest and most up-to-date security standards, including encryption, access controls, network security, and data segregation, to protect personal data of the Customer from unauthorized access, alteration, loss, or destruction;
(b) Ensure that Customer’s data processing is carried out in accordance with the Customer’s reasonable instructions and all applicable laws; and
(c) Conduct security audits, vulnerability assessments, and penetration testing to ensure continued compliance with security and resilience requirements, providing relevant reports to the Customer upon reasonable request.
In the event of Tokeny’s insolvency, resolution, or discontinuation of business operations, including termination of the Contract, Tokeny shall:
(a) Ensure uninterrupted Customer data availability for at least 30 calendar days;
(b) Provide full access to all Customer data in a structured, machine-readable format;
(c) Cooperate in Customer data migration to an alternative provider or the Customer’s own infrastructure in the event of a termination of the Contract; and
(d) Cooperate in the orderly transition of Customer data, and in the recovery and return of all personal and non-personal data at no additional cost beyond pre-agreed fees.
Tokeny shall fully cooperate with the competent authorities and resolution authorities overseeing the Customer, including those appointed by them. This shall include providing access to all relevant documentation, systems, and records upon reasonable request and facilitating any regulatory audits or inspections.
EXCLUSION CASE
In any event, Tokeny cannot be held responsible or assume responsibility for any Anomaly, malfunction, slow service or damage which may be linked to:
- use of any of the Services in a manner not appropriate to its destination, the relevant Documentation or the recommendations of Tokeny;
- a hardware or software failure of one or more elements of the Customer Sites, the computer system, networks, internet or blockchain;
- the availability, security or integrity of any network used to provide Tokeny’s Services (including any blockchain network);
- failure of electronic communications networks, slowing or blockage of the Internet or the blockchain network;
- parameters settings of the IT environment or control stations of the Customer;
- refusal of the Customer or any of its subcontractors to cooperate with Tokeny in resolving Anomalies;
- incompatibility between the Services and any new hardware or third-party software implemented by the Customer without prior notice to, and approval by, Tokeny;
- contamination of the Customer computer system with a computer virus;
- an act of piracy or fraudulent intrusion into the computer system of the Customer or a Contributor;
- the intervention of a third party on the Services not sanctioned by Tokeny;
- generally any voluntary act of degradation, vandalism, sabotage, damage or hacking from the Customer, its employees or any third party; or
- damage due to force majeure.
In case of any Anomaly or malfunction in one of the above listed cases, the Customer may request Tokeny to attempt restoration on the basis of an accepted fee estimate.
EVOLUTION OF SERVICES
The Evolution of the Services includes technical updates and any new functional versions of the Services, at the sole discretion of Tokeny.
Tokeny shall make its reasonable efforts to inform the Customer at least two (2) Business Days in advance of any new working versions of its Services. Tokeny conducts updating and installation of Evolutions directly on the Infrastructure. The Evolution of Services does not include any specific functional requirements that the Customer would like to implement, or upgrading third party software unless the Evolution or upgrading is the result of changes in third party software.
If applicable, the Customer may present its Evolution adaptation needs to Tokeny, who may provide a fee quote to the Customer for the specific developments or adaptations involved. After confirmation in writing from the Customer that such specific developments or adaptations fulfil the initial request made to Tokeny, and confirmation in writing of approval of the fee quote, Tokeny may proceed to work on the specific developments or adaptations, and the Customer will access these via its connection to the Services.
FINANCIAL CONDITIONS
SERVICES PRICES
For the Services, the Customer agrees to pay:
- The price of the standard services described in the Purchase Order;
- The price of all optional services described in the Purchase Order;
- Any additional services provided by Tokeny at the request of the Customer.
The Services’ fees for the Period are specified in the Purchase Order. The Purchase Order includes the standard solutions and any other services chosen by the Customer. Billing for the Services begins at the signature of the Purchase Order.
The Customer may increase the number of Services ordered at any time by notifying in writing Tokeny at least ten (10) Business Days in advance. Tokeny shall adapt the Services as soon as possible.
PAYMENT OF SERVICE
Prices, fees and the timeframe for payments of the Services are specified in the Purchase Order. They are expressed excluding taxes.
Invoices shall be paid by the Customer in accordance with the conditions set out in the Purchase Order.
The fee rates for the Services are revised every year on 31 December, and at other dates as determined by Tokeny with ten (10) Business Days’ notice given to the Customer in writing.
LATE PAYMENTS
In any event, any late payments result in the application to the Customer of:
- the lump sum indemnity for legal collection costs;
- additional fees as may be necessary to recover the debt; and
- a late payment interest on any due amounts at a rate three (3) times the legal rate of interest in effect in Luxembourg, starting from the first day of delay in payment until the day of payment.
In case of persistent delays of more than ten (10) Business Days, all invoices issued by Tokeny become due and payable and Tokeny may suspend the Services without prior notice or compensation, and/or terminate the Contract as a result of an exclusive breach by the Customer. During the suspension, the Customer shall remain liable for any amount otherwise due under the Contract.
INTELLECTUAL PROPERTY
Tokeny holds all rights to the Services, including its brand and logo, any other intellectual property rights, as well as any software, application or database (including any Data) used in the Services. The Customer remains the sole owner of its own Data, its own brands and logos, any other intellectual property rights of the Customer not related to the Services, as well as its website.
The right to use the Services offered to the Customer shall not have the effect of transferring any intellectual property whatsoever by Tokeny to the Customer, on any part of the Services.
GUARANTEE
Tokeny ensures the compliance of the Services (as described in any relevant Documentation) subject to the limitations set out under the Contract. Furthermore Tokeny guarantees that it has permissions and intellectual property rights enabling it to provide the Services to Customers. Accordingly, Tokeny agrees to defend and indemnify the Customer for damages arising from any claims, lawsuits or convictions brought by a third party alleging that all or part of the Services infringes upon any intellectual property rights, provided that the Customer (i) notifies Tokeny immediately in writing of the existence of the claim or suit, (ii) makes a request for its defense, (iii) provides full cooperation in such defense and (iv) does not compromise without first obtaining the written consent of Tokeny. This guarantee does not apply to cases of lack of maintenance as set out in these Terms of Service. In addition, this guarantee does not apply to open-source components or licences that are integrated into or used within the Services. To the extent that Tokeny acknowledges that any component is infringing, it may at its option and expense: (i) modify the component in question so that the Services are non-infringing, (ii) replace the component with a non-infringing component, with the overall equivalent or superior in performance features, or (iii) obtain the rights of use for the Customer to continue to use the Services in accordance with the terms of the Contract. Otherwise, Tokeny may unilaterally terminate the Contract and refund any amount paid in advance by the Customer, as sole compensation.
For its part, the Customer guarantees to Tokeny that it has any necessary permissions, licences and intellectual property rights needed to make use of the Services, and to control the Data stored and processed through the Services, and holds Tokeny harmless from any claim or damage by a third party. The Customer agrees to defend and indemnify Tokeny for damages arising from any claims, lawsuits or convictions brought by a third party. This guarantee applies in particular to the treatment of Investors’ Data that is used in connection with the Services.
CONFIDENTIALITY
The elements of the Infrastructure and the Services constitute confidential information for the Customer. The Customer undertakes (i) to keep confidential all information it receives from Tokeny, and (ii) not to disclose confidential information from Tokeny to any third party, without Tokeny’s prior written consent The Customer shall also be entitled to communicate to Tokeny that any particular information shared by the Customer with Tokeny is to be considered as confidential, and Tokeny shall, to the extent acceptable, treat the information as such.
PERSONAL DATA
The Customer and Tokeny shall comply with applicable data protection law, including but not limited to GDPR, and conduct as well as with all necessary formalities for treatments performed by using the Services. In case of request for access, correction or deletion of Data made by a natural person, the Customer shall take action and comply with the provisions with any joint controllers’ agreement attached to these Terms of Service.
Tokeny shall implement and maintain appropriate measures to ensure the availability, authenticity, integrity, and confidentiality of Customer data, including personal data. Such measures shall comply with applicable data protection laws, including GDPR and DORA.
LIABILITY
Tokeny assumes no responsibility regarding the suitability of the Services to the needs of the Customer, notwithstanding the initial settings of the Services. It is the sole responsibility of the Customer to first ensure that it has all the technical prerequisites for the use of the Services (terminal devices, OS, electronic communications network) as described by Tokeny. The Customer is responsible for the hardware, software, network connections and technical safeguards needed for its use of the Services. Tokeny shall not accept any responsibility or liability in case of malfunction or non-compliance of these elements. It is for the Customer to ensure that the treatment of the Services complies with any applicable regulations in effect when it uses them.
The liability of Tokeny in case of damage to the Customer due to a breach of its obligations under the Contract (as evidenced by the Customer) shall be limited to an amount equal to the fees collected by Tokeny for the Period during which the damage occurs. In any event, Tokeny shall not be held liable for any damages arising as a result of the Customer’s control or use of the Services or their unavailability, including any damages to the Customer, Investors or third parties (including loss, leakage, inaccuracy or corruption of Data, business interruption, goodwill, commercial or financial loss, etc.). In particular, Tokeny is not involved and shall not be held liable in respect of any operations of exploration, delivery or payment made by the Customer and/or Investors, and as Tokeny has no control over transactions and sales made through the Services due to the Customer’s control over the Services’ processes. Each sale made by the Customer binds it to its Investors in an operation that is external to Tokeny. The Customer makes its own arrangements in its business relationships between buyers and sellers on its websites, and holds Tokeny harmless against all claims arising therefrom.. It is also the responsibility of each party to underwrite the insurance policies required for its activity and products. It is reminded that the contractual liability of Tokeny may be initiated for damage that occurred in one of the cases specified in the “Limits of use” and “Exclusion cases” Sections above.
Similarly, in any case Tokeny’s liability does not arise in case of a temporary request or permanent interruption of the Services by an administrative or judicial authority. Finally, the Customer waives all claims against Tokeny beyond a period of one (1) year after the occurrence of a damaging event.
The Customer shall be liable for any breach of its obligations under the Contract, and generally in cases of fraud, negligence or wilful misconduct, and shall indemnify Tokeny for any damages and/or costs incurred as a result thereof.
In addition, the Customer is solely responsible for Data loads and processes that it uses through the Services, including their legality and technical safety. Consequently, the Customer is responsible for any damage whatsoever that is suffered by Tokeny and/or its subcontractor host and/or third parties in respect of Data loaded and/or actions taken by the Customer and/or Users via the Services. The Customer warrants and shall indemnify Tokeny against any action arising from any third party, including in the cases referred to in the “Limits of use” Section above.
TERMINATION
There is no termination for convenience during the Period.
Since the Services may depend on the Infrastructure which Tokeny uses as a host, the Customer acknowledges that Tokeny may terminate the Contract without compensation if the host terminates its hosting service for whatever reason.
In addition, in the event of a breach by either party of any of the obligations of the Contract, that has not been remedied within thirty (30) calendar days after notice has been given to the breaching party, the other party shall be entitled to terminate the Contract, without prejudice to any damages which it may claim. Any claim brought by the Customer for compensation related to any breach of the Contract cannot exceed the fees collected by Tokeny for the Period during which the damage occurs.
Exceptionally, Tokeny reserves the right to automatically terminate the Contract without notice or compensation in the event that the Customer or any of its Users prejudice in any way the integrity of the Services, property, intellectual property rights, reputation or image of Tokeny’s brand or products, and in the situations stipulated in the “Late payments” Section.
Notwithstanding the provisions in this section, the Customer shall have the right to terminate the Contract subject to prior notification within a minimum notice period of 30 calendar days in the event of:
(a) A significant and material breach by Tokeny of applicable laws, regulations, or contractual obligations;
(b) Identification of risks during ongoing ICT third-party risk monitoring that may materially impact service performance, including material changes affecting the Contract or Tokeny’s situation;
(c) Identification of material weaknesses in Tokeny’s risk management evidenced in written form, particularly regarding the availability, authenticity, integrity, or confidentiality of personal, sensitive, or similar data; or
(d) Where the Customer’s competent authority is no longer able to effectively supervise the Customer due to circumstances arising from this Contract.
Upon termination under the circumstances set out in the preceding paragraph, Tokeny shall ensure an orderly transition of services and Customer data, at no additional cost beyond pre-agreed fees, to minimize disruption to the Customer’s operations, for a period of 30 calendar days following the termination of the Contract.
Upon termination of the Contract for breach by the Customer, all sums paid shall be retained by Tokeny, which will charge all fees remaining due until the end of the Period under the Purchase Order, and such fees shall become immediately due and payable on the effective date of termination. Upon any termination of the Contract for breach by Tokeny, Tokeny issues a credit note for any unpaid invoice issued for the reminder of the Period until the date of actual termination, and keeps the fees collected and/or past due for the Period up until the effective termination.
FINAL PROVISIONS AND APPLICABLE LAW
The Contract constitutes the entire agreement between the Customer and Tokeny and supersedes and replaces all previous documents concluded between them in respect of the Services. The Customer shall not assign the Purchase Order to a third party (of assets, sale of business assets, merger, takeover, change of control, etc.) without the express written consent of Tokeny.
In the event that one or more stipulations of these Terms of Service would be considered invalid, inapplicable or unenforceable by any court of competent jurisdiction, the remaining provisions hereof shall remain valid unless otherwise specified by that court. The Customer and Tokeny agree that, in such case, they will negotiate in good faith and the terms of replacement will be (i) valid, enforceable and binding and (ii) in accordance with the original intent of the parties.
In cases of force majeure, the obligations of the parties shall be suspended for the duration of this case. If the force majeure continues for more than three (3) months, the Contract will be terminated by written notice sent by either party to the other party, unless otherwise agreed between the parties.
The Customer expressly authorises Tokeny to reproduce its logo, key metrics of its Digital Asset Offering and its brand as a business reference, in its printed and online marketing materials for the duration of two years, unless otherwise indicated in written form by the Customer.
The Customer agrees to participate in the redaction and publication of a common press release explaining why it chose Tokeny’s Services. The Customer agrees to work with Tokeny on the language and information used in the press release until said press release is agreeable to all parties. All parties must be given a chance to review and approve the press release before publication.
The Customer waives initiating or employing, directly or through intermediaries, any employee or freelancer of Tokeny, without prior express consent of the latter. This waiver is valid for the duration of the Contract and during the twelve (12) months following its termination. In the event that the Customer fails to comply with this obligation, it will compensate Tokeny by paying it immediately upon request a lump sum equal to twelve (12) times the monthly gross salary of the employee at the time of his/her departure.
The failure of either party not to claim a commitment by the other party to any of the obligations contemplated herein cannot be interpreted as a waiver of the relevant claim.
In case of dispute, evidence provided by Tokeny of the actions of the Customer and/or Investors and/or Users and/or third parties, using the connection logs and transmissions identified by Tokeny, shall be considered as the only true and authentic evidence, particularly with regard to the date, nature and content of any Data and Anomaly reports.
As a result of the particular technologies that it uses as part of the Services, Tokeny reserves the right to modify at any time without notice at its sole discretion the content of these Terms of Service, which take effect from the date of notification to the Customer. In case of substantial changes to the Services, the Customer will be able to request the termination of the Contract with one (1) month’s written notice. Tokeny shall not have to pay any compensation to the Customer as a result of the modification of the Terms of Service or termination of the Contract as a consequence thereof.
The Contract is subject to Luxembourg law.
ANY DISPUTE IN CONNECTION WITH THE SERVICES, NOT AMICABLY RESOLVED BETWEEN TOKENY AND THE CUSTOMER, SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COMPETENT COURT OF LUXEMBOURG. TOKENY ALSO RESERVES THE RIGHT TO ENTER INTO ARBITRATION AT ITS DISCRETION WITH A LUXEMBOURG ARBITRATOR OF TOKENY’S CHOICE.