Updated on July 1st, 2022
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 certain Users, such as investors and any other party (such as issuers or agents) involved in a Digital Asset Offering (as defined below), with a digital identity based on a Distributed Ledger Network (as defined below), which can be made available to pre-approved parties (hereinafter referred to as “ONCHAINID“).
Their ONCHAINID service provided by Tokeny may 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 or tokens and sign transactions;
- have personal data associated to their digital identity stored 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, tokens or any other process leveraging ONCHAINID.
For the purpose of accepting the creation of an ONCHAINID and using the ONCHAINID services, each User accepts these terms and conditions (hereinafter referred to as “Terms and Conditions“).
1. 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.
Agreement: these Terms and Conditions.
Claim: means the categories of Data populating an ONCHAINID.
Data: refers to the data related to a given User, as populated in his/her/its ONCHAINID. Data available in an ONCHAINID may contain Personal Data.
Digital Assets: means a digital representation of value which is digitally issued, traded and/or transferred via a Distributed Ledger Network.
Digital Asset Offering: means the issuance of digital assets (or tokens) by an issuer, where investors and/or contributors can subscribe to, contribute to, or acquire digital assets (or tokens) issued by an issuer.
Distributed Ledger Network: means a blockchain-based distributed computing platform and operating system featuring smart contract functionality.
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.
Personal Data: has the meaning ascribed to such term under Article 4(1) of GDPR.
Smart Contract: refers to the programmable code based on the
Distributed Ledger Network protocol allowing the creation of the User’s ONCHAINID.
Users: means any individual, company or organisation directly or indirectly using or intending to use Tokeny’s services, including (but not limited to) having an ONCHAINID and/or benefiting from the ONCHAINID service.
2. PURPOSE
The purpose of these Terms and Conditions is to define the terms and conditions under which the Users may have an ONCHAINID and benefit from the ONCHAINID service.
3. DURATION
The Agreement shall become effective upon its acceptance by the User (which for the avoidance of doubt may be given via an acceptance check box or by the creation of an ONCHAINID at the User’s request) and shall remain in place for an undetermined period of time under the conditions set out herein.
4. DESCRIPTION OF THE ONCHAINID
4.1 Scope of the ONCHAINID
Tokeny provides the Users with a digital identity known as 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 Smart Contract is issued 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) or by third parties. By accepting to be provided with an ONCHAINID, the User accepts the fact that third parties may populate the Claims, consult the User’s Data or have access to the User’s Data. The User expressly authorises Tokeny and any third parties populating Claims to process the User’s Data.
The User’s Data is stored by default 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 may be used as evidence in disputed cases, which the User acknowledges.
The User will remain the owner of his/her/its Data. When creating 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 unauthorised access or damage to Data. Tokeny will use the best in security practices to ensure the safety of its data and code. While Tokeny will make its reasonable efforts to use the best security practices, 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.
5. SAFEKEEPING SERVICES
5.1 Scope of the Safekeeping Service
As part of the ONCHAINID service, Tokeny may also offer access to a safekeeping service (hereinafter referred to as the “Safekeeping Service”).
With the Safekeeping Service, the User has the ability to create a wallet for the safekeeping of its Digital Assets (hereinafter referred to as 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 that are held by the User. When Tokeny offers access to a safekeeping service, the public and private keys associated to the Wallet are kept by authorized third parties.
Furthermore, the User may have access to the following functionalities:
- the User may view the public address of his/her/its 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 may be, and depending on the Distributed Ledger Network on which the Wallet is created, the Wallet of the User may 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 may rely on a third-party service provider for the management, custody and/or holding of the Wallet. The User understands and accepts that this means that Tokeny would merely grant access to the User to the solution provided by such service provider. By creating a user account, the User may 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 process and share User related information or Data with such service provider in order to enable the latter to comply with its legal and regulatory obligations or to provide its services.
Tokeny will incur no responsibility whatsoever relating to the safekeeping of the Digital Assets as long as it relies on a third-party service provider. betoken may not be held responsible in case of non-delivery of any service by the third-party service provider or insolvency of the third-party service provider resulting in the possible inability for the third-party service provider to process the restitution of 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 by the User directly with such service provider. The User acknowledges and accepts that Tokeny shall not be held liable for any damage suffered by the User in connection with any safekeeping service or any Wallet.
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 may be transferred to and from the relevant User’s 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 full payment of any outstanding amounts under such invoice. Upon blocking of the Wallet, the User will have a 15 calendar days period to settle the invoice, after which Tokeny shall 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 or sold by Tokeny to recover any outstanding debt owed by the User.
6. LIMITATIONS OF USE
It is prohibited and forbidden for the User to provide any Data to Tokeny or any third-party which may be contrary to any laws, regulations or public policy, including any racist, xenophobic, bigoted, proselyte, defamatory, libellous, 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 User agrees to indemnify Tokeny against any claims, lawsuits, judicial or administrative recourse against Tokeny because of Data, including any damages, compensation, litigation and/or consulting costs.
The User is solely responsible for any Data loaded, processed or treated, and for any instructions that activate procedures and results. It undertakes not to use any services contrary to any regulations applicable to its business, or assist in such use.
When storing Data which contravenes with the provisions set out herein or with the services provided by Tokeny, Tokeny reserves the right to (i) remove the disputed Data in an emergency or threat, (ii) suspend access to the ONCHAINID immediately and without notice, and (iii) immediately terminate the Agreement. Such removal, suspension or termination shall not give rise to any compensation whatsoever, without prejudice to any damages Tokeny may claim from the User as a result of its actions.
7. FINANCIAL CONDITIONS
Tokeny may charge a fee to the User for the provision of the ONCHAINID and related services.
In case the ONCHAINID is created in the context of a Digital Asset Offering or the access to a third-party platform, the issuer of the Digital Asset Offering or such third-party platform, as applicable, agrees to bear the costs of any ONCHAINIDs created in connection with the Digital Asset Offering. However, fees related to further amendments to the ONCHAINID or uses beyond the mere Digital Asset Offering may be charged by Tokeny directly to the User. In such case, Tokeny will provide the details of such costs to the User, and the User may decide to terminate this Agreement if it does not agree with the fee to be charged by Tokeny. Termination will be effective immediately, and will result in the termination of any ONCHAINID and related services.
Finally, in case the ONCHAINID is created in a context which is not related to that of a Digital Asset Offering or the access to third party platforms or in case the issuer of a Digital Asset 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. The User may decide to terminate this Agreement if it does not agree with the fee charged by Tokeny (or the issuer on its behalf). Termination will be effective immediately, and will result in the termination of any ONCHAINID and related services.
8. INTELLECTUAL PROPERTY
Tokeny owns and holds all rights to the ONCHAINID, including its brand and logo, any other intellectual property rights, as well as any software, application or database 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 to the User.
9. CONFIDENTIALITY
The elements of the ONCHAINID constitute confidential information. The User undertakes (i) to keep confidential all information it receives from Tokeny, and (ii) not to disclose confidential information from Tokeny to any third party (other than its own Data), without Tokeny’s prior written consent. The User shall also be entitled to communicate to Tokeny that any particular information shared by the User with Tokeny is to be considered as confidential, and Tokeny shall, to the extent acceptable, treat the information as such.
10. PERSONAL DATA
The User and Tokeny undertake to comply with applicable data protection law, including but not limited to GDPR, and conduct as well 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.
11. LIABILITY
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 shall not accept any responsibility or liability in case of malfunction or non-compliance of these elements. Tokeny shall not be held liable in case of incompatibility or malfunctioning of any third-party software. It is for the User to ensure that the treatment of ONCHAINID and related services comply with any applicable regulations.
The User will be liable in case of gross negligence, fraud or wilful misconduct. In any event, Tokeny shall not be held liable for any 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 the use of the ONCHAINID and related services, or their unavailability.
Similarly, Tokeny shall not be liable in case an administrative or judicial authority requests a temporary or permanent interruption of the ONCHAINID related services. 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 and shall be held liable 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 shall indemnify Tokeny against any action arising from any third party.
12. TERMINATION
Each Party may terminate the Agreement at any time.
Since the ONCHAINID may depend on the infrastructure which Tokeny uses, the User acknowledges that Tokeny may terminate the Agreement without compensation if the host terminates its hosting service for whatever reason, or if any other party terminates its services for whatever reason.
In addition, in the event of a breach by either party to any of the obligations under the terms 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 fees collected by Tokeny from such User.
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, reputation or image of Tokeny’s brand products.
Upon termination of the Agreement for breach by the User, all sums paid shall be retained by Tokeny, which will charge all fees remaining due until the end of the Agreement, and such fees shall become immediately due and payable on the effective date of termination. Upon any termination of the Agreement for breach by Tokeny, Tokeny issues a credit note for any unpaid invoice issued for the remainder 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.
13. REVERSIBILITY
In case of termination of the Agreement for any reason whatsoever, Tokeny agrees to send to the User a copy of any Data requested by the User in Tokeny’s standard format, at the User’s request.
14. MISCELLANEOUS
These Terms and Conditions constitute the entire agreement between the User and Tokeny in respect of the ONCHAINID. The User shall not be entitled to assign its ONCHAINID or related services to any third party without the express written consent of Tokeny.
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 User and Tokeny agree that, in such case, they will negotiate in good faith the terms of replacement will be valid, enforceable and binding.
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 may be terminated by written notice sent by either party to the other 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, evidence provided by Tokeny of the actions of the User or any third party, 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 reports.
As a result of the particular technologies that it uses as part of the ONCHAINID related services, Tokeny reserves the right to modify at any time without notice at its sole discretion the content of these Terms and Conditions, which take effect from the date of notification to the User. In case of substantial changes to the ONCHAINID related services, the User will be able to request the termination of the Agreement with one (1) month’s prior written notice. Tokeny shall not have to pay any compensation to the User as a result of the modification of the Terms and Conditions or termination of the Agreement as a consequence thereof.
The Agreement is governed by Luxembourg law.
ANY DISPUTE IN CONNECTION WITH THE SERVICES, NOT AMICABLY RESOLVED BETWEEN TOKENY AND THE USER, SHALL 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 ARBITRATOR OF TOKENY’S CHOICE.