UPDATED ON 1st May 2021
INTRODUCTION
The Tokeny S.à r.l. company (commercial name “Tokeny Solutions” and hereinafter referred to as “Tokeny“), registered in Luxembourg under number B218805 and located at 9 rue du Laboratoire, L-1911 Luxembourg, provides a ‘Tokeny’ ONCHAINID.
The ONCHAINID consists in providing certain users, such as investors, in a Digital Assets Offering (“Digital Assets Offering”) and any other third party (such as issuers, agents,…), with a digital identity on a Distributed Ledger Network available to prior approved parties.
Their ONCHAINID service will allow users to:
- have a digital identity evidencing their capacity to hold, issue and manage Digital Assets on a distributed ledger;
- have one or several wallets associated to their digital identity allowing them to hold digital assets and sign transactions;
- have personal data associated to their digital identity safekept securely on their behalf outside of the distributed ledger;
- manage, maintain and use the personal data associated to their digital identity in any identification, qualification and signature process associated to specifically acquiring, holding or managing digital assets or any other process leveraging ONCHAINID.
By accepting the creation of the ONCHAINID and using the ONCHAINID, the User accepts these Terms and Conditions.
1. DEFINITIONS
Terms beginning with a capital letter, used in the singular or plural, shall have the meanings given to them hereinafter.
Agreement: these Terms and Conditions to the exclusion of any other document.
Claim: means the categories of Data populating the ONCHAINID.
Data: refers to the data hosted by Tokeny and which relates to a given User, as populated in the ONCHAINID. Data available may contain Personal Data.
Digital Assets: means a digital representation of value which is digitally traded or transferred via notably a distributed ledger network and which can be used for payment or investment purposes.
Distributed Ledger Network: means a public, blockchain-based distributed computing platform and operating system featuring smart contract functionality on which an ONCHAINID is deployed.
GDPR: means the Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Period: means the duration of the Agreement which is indefinite.
Personal Data: means the data as defined under Article 4(1) of GDPR.
Digital Assets Offering: means the issue of tokens representing underlying securities.
Smart Contract: refers to the programmable code based on the Distributed Ledger Network protocol allowing the issuance of the User’s ONCHAINID.
Users: refers to natural persons, or legal entities benefiting from the ONCHAINID.
2. PURPOSE
The purpose of these Terms and Conditions is to define the terms and conditions under which the Users benefits from the ONCHAINID.
3. DURATION
The Agreement is available for an undetermined period of time as from the entering into thereof by the User.
4. DESCRIPTION OF THE ONCHAINID
4.1 Scope of the ONCHAINID
Tokeny provides the Users with a digital identity (the ONCHAINID) which the User may then use on compatible platforms. The ONCHAINID works as a verified identity available on the Distributed Ledger Network. In this respect, a SmartContract is issued on the Ethereum Network thereby establishing the ONCHAINID. Claims are then populated in the ONCHAINID.
Claims may be populated by Tokeny (generally on behalf of the User or a qualified third party) but also by third parties. By accepting to be provided with an ONCHAINID, the User accepts the fact that third parties may populate the Claims, consult User Data or have access to User Data.
The User’s Data are hosted on Tokeny’s server or its hosting subcontractor’s server, enabling the remote processing and safeguarding of Data. The journals, logs and records of Tokeny, or its hosting subcontractor are used as evidence in disputed cases, which the User acknowledges.
The User will remain the owner of the Data. When deploying an ONCHAINID, Tokeny will set up two similar management keys for the relevant identity: one key which is associated to the wallet of the User and the other key which is held by Tokeny in order to perform administration services on behalf of the User. The User may revoke the management key of Tokeny, however, the User accepts and understands that in such case Tokeny will no longer be able to perform administration services for the User.
4.2 Security
Tokeny implements security measures that comply with the highest standards in force, under an obligation of means (obligation de moyens), against unauthorized access or damage to Data. Tokeny will use the best in security practices to ensure the utmost safety of its data and code. Tokeny will use every avenue available to it for security purposes and will always look at newly available security practices. While Tokeny will strive to use the best security practices, there may be instances where hackers can commit data breaches and other security breaches. Said security breaches will not be the responsibility of Tokeny. However, Tokeny will use its best efforts to secure and fix any such breach as soon as possible.
5. SAFEKEEPING SERVICES
5.1 Scope of the Safekeeping Service
In addition to the ONCHAINID, Tokeny also offers access to a safekeeping service (the “Safekeeping Service”).
The User has the ability to create a wallet for the safekeeping of its Digital Assets (the “Wallet”). After successful registration with Tokeny to that effect, the User will be provided access to the Wallet.
5.2 Functionalities of the Wallet
The Wallet displays the Digital Assets which are held for the User. This means that the public and private keys associated to the Wallet are kept for and on behalf of the User.
Furthermore, the User will have access to the following:
- the User may view the public address of his/her wallet;
- the User can view past transactions, including the addresses of the sender and recipient of the transaction, time stamp and transaction ID;
- the User can initiate transactions;
- as the case maybe and depending on the Distributed Ledger Network on which the Wallet is created, the Wallet of the User will be pre-funded with the network currency needed to cover the network fees required to carry out transactions in Digital Assets with the User’s Wallet.
5.3 Data sharing
Tokeny will rely on a third-party service provider for the management and holding of the Wallet. The User understands and accepts that this means that Tokeny merely grants access to the solution provided by such service provider. By creating a user account, the User will be required to accept the terms and conditions of such service provider relating to the Safekeeping Service. By accepting the present Terms and Conditions, the User also accepts the service provider’s terms and conditions which are appended hereto in annex. The User furthermore understands and accepts that Tokeny may be required to share User related information with such service provider in order to enable the latter to notably comply with its legal and regulatory obligations.
Tokeny will incur no responsibility whatsoever relating to the safekeeping of the Digital Assets as it relies on a service provider therefore. It may thus not be held responsible in case of insolvency of the third-party service provider resulting in the possible inability for the third-party service provider to restitute the Digital Assets to the User or in case of breach of notably the safekeeping duties of the service provider. Any claims in that respect will need to be raised directly with such service provider.
5.4 Fees
The provision of a safekeeping wallet, the safekeeping of certain Digital Assets and/or the carrying out of Digital Assets transactions pursuant to which such assets will be transferred to and from the relevant User Wallet may entail fees which will be charged accordingly to the User by Tokeny. In such case, Tokeny will issue an invoice to the User. A failure by the User to settle the invoice according to its terms might result in the Wallet of the User being blocked by Tokeny until complete payment of such invoice. Upon blocking of the Wallet, the User will have a [15] days period to settle the invoice, failure of which Tokeny will have the right to terminate the Agreement with immediate effect. Upon termination, the User will be required to provide to Tokeny information as to where the Digital Assets should be transferred. In case the User fails to provide this information to Tokeny, the Digital Assets will be kept in an internal wallet of Tokeny until the above information is provided.
6. LIMITATIONS OF USE
The User is prohibited and forbidden to provide Data contrary to the laws, regulations or public policy, including any content racist, xenophobic, bigoted, proselyte, defamatory, libellous, obscene, pornographic, violent, thus that any damage to 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 User agrees to indemnify Tokeny against any claims, lawsuits, judicial or administrative recourse against Tokeny because of Data, including all damages, compensation, litigation costs and consulting included.
The User is solely responsible for Data loaded.
When storing Data which contravenes with the above, Tokeny reserves the right (i) to remove the disputed Data in an emergency or threat, (ii) suspend access to the ONCHAINID immediately and without notice, and (iii) terminate the Agreement of the offender. Such termination shall not give rise to any compensation whatsoever, without prejudice to damages Tokeny may claim the User to its actions.
7. FINANCIAL CONDITIONS
Tokeny may charge a fee for the provision of the ONCHAINID and additional related services.
In case the ONCHAINID is created in the context of a Digital Assets Offering or the access of a third-party platform, the issuer of the Digital Assets Offering will generally bear the costs thereof. However, further amendments to the ONCHAINID or uses beyond the mere Digital Assets Offering will bear costs which may be charged to the User directly. In such case, Tokeny will provide the details of such costs to the User. The User may decide to terminate this Agreement if it does not agree with the fee charged by Tokeny. Termination will be effective immediately.
Finally, in case the ONCHAINID is created in a context which is not related to that of a Digital Assets Offering or the access to third party platforms or in the case the Issuer of the Digital Assets Offering or such third-party platform have decided not to bear the cost of the creation of the ONCHAINID, the User shall bear the costs of creating and managing the ONCHAINID. Tokeny will provide the details of such costs to the Issuer beforehand. The User may decide to terminate this Agreement if it does not agree with the fee charged by Tokeny. Termination will be effective immediately.
8. INTELLECTUAL PROPERTY
Tokeny holds all rights to the ONCHAINID, including its brand and logo as well as any software, application or database Data used in the ONCHAINID as the case may be. Notwithstanding the above, the User remains the sole owner of its own Data.
The right to use the ONCHAINID shall not have the effect of transferring any intellectual property whatsoever on any part of the ONCHAINID other than those strictly necessary for the use of the ONCHAINID by the User during the term of the Agreement, as indicated above.
9. CONFIDENTIALITY
Data of the User is confidential information for the parties. Notwithstanding the above, each Party undertakes to (i) keep confidential all information it receives from the other Party; (ii) not to disclose confidential information from the other Party to any third party; and (iii) use confidential information of the other Party as a result of performing its obligations under the Agreement. Privacy protection of a Party lasts as long as the other party intends to keep its confidential information, except in case of transmission request from a legal or judicial authority.
10. PERSONAL DATA
The User and Tokeny undertake to comply with applicable law regarding the protection of personal Data, including but not limited to GDPR, and conduct as with all necessary formalities when personal Data of data subjects is stored or processed by using the ONCHAINID. Tokeny is committed to acting on the express instructions of the User in case of request for access, correction or erasure made by a natural person.
11. LIABILITY
To the extent that the User is aware of the characteristics of ONCHAINID and has verified that they match its needs, Tokeny assumes no responsibility regarding the suitability of ONCHAINID to the needs of the User.
The User is responsible for the hardware, software, network connections and technical safeguards needed for its use of the ONCHAINID. Tokeny disclaims any responsibility or liability in case of malfunction or non-compliance of these elements. Tokeny disclaims all liability in case of incompatibility or malfunctioning third party software.
Each Party will be liable in case of gross negligence or wilful misconduct in the execution of the Agreement. In any event, under any circumstances, Tokeny cannot be held liable for damages that would be suffered by the User or third parties (including loss, leakage, inaccuracy or corruption of Data, business interruption, goodwill, commercial or financial loss, etc.) arising from use of the ONCHAINID or its unavailability.
Similarly, Tokeny will not be liable in case an administrative or judicial authority requests a temporary or permanent interruption of the ONCHAINID Service. Finally, the User waives all claims against Tokeny raised after a period of one (1) year after the occurrence of a damaging event.
The User 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. The User warrants and indemnifies Tokeny against any action arising from any third party.
12. TERMINATION
Each Party may terminate the Agreement at any time during the Period.
Since the ONCHAINID may depend on the infrastructure which Tokeny uses, User acknowledges Tokeny may terminate the Agreement without compensation if the host terminates its hosting service for whatever reason.
In addition, in the event of a breach by either party to any of the obligations of the Agreement, 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 Agreement, without prejudice to any damages which it may claim. Any claim brought by the User for compensation related to any breach of the Agreement cannot exceed the total value of the Agreement terms. Where appropriate, the Parties shall implement the reversibility agreed below.
Exceptionally, Tokeny reserves the right to automatically terminate the Agreement without notice or compensation in the event that the User or any third parties prejudice in any way the integrity of the ONCHAINID, intellectual property rights of Tokeny or image of Tokeny brand or its products.
Upon termination of the Agreement for breach of the User, all sums paid shall be retained by Tokeny, which will charge all fees remaining due until the end of the Agreement, immediately due to the effective date of termination. Upon any termination of the Agreement for breach of exclusive Tokeny rights, Tokeny issues a credit note for any invoice for the Period contractual still to run on the date of actual termination, and keeps the fees collected and/or past due for the Period up the effective termination.
13. REVERSIBILITY
On expiry of the Agreement, or in case of termination for any reason whatsoever, Tokeny agrees to send to the User a copy of all Data in standard format, in its last state on the date of the request.
14. MISCELLANEOUS
These Terms and Conditions constitute the entire agreement between the Parties and supersede and replace all previous documents concluded between them in respect of the ONCHAINID.
In the event that one or more stipulations of these 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 Parties agree that, in such case, they will negotiate in good faith 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 thereof. If the force majeure event continues for more than three (3) months, this Agreement will be terminated by written notice sent by either party, unless otherwise agreed between the Parties.
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 thereof.
In case of dispute, Tokeny may validly administer the proof of the actions of or fraudulent access by a third party using the connection logs and transmission identified by Tokeny that alone are authentic, particularly with regard to the date, nature and content of the Data and reports Anomaly, which the User acknowledges.
According to particular technologies that it uses as part of the Services, Tokeny reserves the right to modify at any time without notice the content of these Terms and Conditions, which take effect from the date the notice in this respect is sent to the User. In case of substantial changes to the Services, the User will be able to request the termination pursuant to a one (1) month’s prior notice.
The Agreement is governed by Luxembourg law.
ANY DISPUTE IN CONNECTION WITH THE SERVICES, NOT AMICABLY RESOLVED BETWEEN TOKENY AND THE USER WILL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COMPETENT COURTS OF LUXEMBOURG CITY, GRAND DUCHY OF LUXEMBOURG. TOKENY ALSO RESERVES THE RIGHT TO ENTER INTO ARBITRATION AT ITS DISCRETION WITH A LUXEMBOURG CERTIFIED ARBITRATOR OF TOKENY’S CHOOSING.
