TERMS OF USE

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.

Updated on 10 January 2024 (Applicable to all DFNS users)

DFNS – Digital assets and financial instruments wallet
Terms of Use (the “Terms”)

DFNS SAS, a French société par actions simplifiée, registered with the Commercial and Trade Registry of Paris under number 888 176 575 RCS Paris (“DFNS” or “us“)  offers a multiparty computation non-custodial wallet solution (the “Services”)  to users (the “Users“) of our partner, Tokeny S.à r.l., a private limited liability company, registered in Luxembourg under number B218805 (“Tokeny“) platform (the “Partner Platform“). 

The references to “you” and “your” in these Terms refer to yourself and that organization or entity. You further represent and warrant that you are fully able and competent to enter into, and abide by and comply with the Terms. If you do not agree to any of the Terms, you may not access or use the Services.

DFNS is solely responsible for providing wallets to Users as part of the Services, and is not responsible for the Partner Platform nor for any of the assets created therein that Users store on DFNS wallets. The relationship between DFNS and Users as well as the one between Users and Tokeny or token issuers must be strictly distinguished. For this purpose, DFNS shall be the only provider of wallets to Users under these Terms, and Tokeny shall never be considered as provider of any wallets to Users. 

By accessing and using the Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms, and read and understood our privacy policy accessible on https://www.DFNS.co/privacy-policy, on behalf of yourself and any organization or entity you represent. You represent and warrant that you have the right and authority to do so. As a non-custodial wallet, Users of the DFNS wallet recognize being solely responsible for their use of the Partner Platform. The following statements do not constitute legal or tax advice. Depending on their status and jurisdiction, Users should consult a lawyer for legal and tax advice before using our Services. 

Certain capitalized terms are defined in Section 21 (Definitions) and others are defined contextually in these Terms.

1. Overview.

Our Services enable the management and control of digital asset wallets that store private and public keys, interact with various blockchains, and monitor asset balances. The Services are provided through the Partner Platform or Application control. You acknowledge and agree that the Partner Platform may add or restrict certain functionalities to the Services to adapt to the Platform evolution and regulation, as provided by the General Terms of Service of the Partner Platform.  

2. Changes to the Terms.

We reserve the right to change these Terms at any time, with or without notice to you, by updating the Terms on our website and on the Partner Platform. By continuing to access or use the Services after we have posted a modification on the Website or the Partner Platform, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services.

3. Services.

Users may use the Services for their internal business use and for interacting with the Partner Platform (“Permitted Use“). 

4. Users.

You may permit Users to use the Services on your behalf. You are responsible for provisioning and managing your Users’ accounts, for your Users’ actions and for their compliance with these Terms. You are and will remain, solely responsible for your internal policies and procedures with respect to delegating use of the Services to Users including non-employees. if applicable, Users will also include User’s end-customers as selected by the User, provided that (i) such end-customers have agreed to any applicable User terms of use and privacy policies, (ii) User and such end-customers comply with all applicable laws, rules and regulations, and these Terms, and (iii) User has screened such end-customers in accordance with its applicable compliance policies. DFNS and Tokeny could not, in any case, be held responsible for the use made by User’s end-customers of the Services. You will ensure that Users keep their login or authentication credentials confidential, and will promptly notify DFNS upon learning of any compromise of User accounts or credentials. You shall be solely responsible for maintaining your authentication credentials and devices secure, and adding an authentication credentials backup. You acknowledge and agree that losing your authentication credentials and device may lead to the loss of access to your and your Users’ accounts.

5. Data.

5.1. Use of data. If you choose to provide, upload, import, transmit, post, or make accessible to DFNS certain of your data, DFNS will access and use your data solely to provide and maintain the Services and Support under these Terms (“Use of Data“). Use of data includes sharing data as user directs through the Services, but DFNS will not otherwise disclose your data to third parties except to the Partner Platform and as permitted in these Terms.

5.2. Data Rights. You shall own all rights, title and interest in and to all of your data. You represent and warrant that you own or have obtained the rights to all of the rights in your data and you have the right to provide DFNS with any license granted therein to use such data in accordance with these Terms. You further represents and warrants that to the extent your data includes any personally identifiable information or personal data, you have received the required consents or permits and has acted in compliance with applicable privacy laws and regulations to allow DFNS to process and use your data solely in order to perform under these Terms. You shall have sole responsibility for the reliability, integrity, accuracy and quality of your data. To the extent you need a Data Protection Addendum (“DPA“), you shall submit a request to DFNS for a DPA.

5.3. Feedback. DFNS may receive Feedback and use it to operate, improve and support the Services and for other lawful business purposes. DFNS will not disclose Feedback externally.

6. Compliance with Laws.

You agree to comply, and to ensure that your Users comply, with all Laws that apply to you or to your Users under these Terms.
You will further ensure that your and Users digital asset activities comply with all applicable laws and regulations, including but not limited to terrorist financing, money laundering, consumer protection, e-money lice nsing, anti-bribery, financial market regulation and anti-corruption laws and regulations. DFNS will not be kept responsible for any misappropriate use of its Services. 

7. Warranties.

7.1. Your Warranties. You represent and warrant that:
(a)     you have the legal power and authority to enter into and accept these Terms;
(b)    you are of the legal age of majority in your jurisdiction as may be required to access and use the Services; and
(c)     you are and will remain the sole beneficiary of the Services, and you will not assign any rights to the Services to any third party.

7.2.   Disclaimers. Except as expressly set out in these Terms, DFNS disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title, non-infringement, and being virus or error free. 

8. Usage Rules.

8.1.   Compliance. You represent and warrant that you have all rights necessary to use the Services without violating third-party intellectual property, privacy or other rights. Between the parties, you are responsible for the content and accuracy of any Data.

8.2. Restrictions. You will not and will not permit anyone else to: (a) sell, sublicense, distribute or rent the Services (in whole or part), grant non-Users access to the Services or use the Services to provide a hosted or managed Services to others, (b) reverse engineer, decompile or seek to access the source code of the Services, (c) copy, modify, create derivative works of or remove proprietary notices from the Services, (d) conduct security or vulnerability tests of the Services without DFNS’ prior written consent, interfere with its operation or circumvent its access restrictions, (e) use the Services to develop a product that competes with the Services, (f) violate or abuse password protections governing access to the Services, (g) use DFNS’ name, logo or trademarks without prior written consent, (h) conduct comparisons, competitive analysis, penetration testing, vulnerability assessments, or other benchmarking activities without the prior written consent of DFNS or, (i) use the Services except as authorized under these Terms.

8.3. General Usage.  Each digital asset wallet is associated with a key pair. Private keys of the key pair are generated as a collection of key-shares encrypted and stored through the Services. You are solely responsible for any consequences, losses, expenses, costs, and claims that may result from any improper or unauthorized use of the Services, its API keys allowing it to call for signatures, its public keys, private keys, or private key-shares. DFNS and Tokeny assume no responsibility for any loss or damage incurred due to loss of data, erroneous transmission of digital assets, or hacking by third parties. You shall implement appropriate technical, organizational and security measures to make sure that you and your Users have proper access to the Services.

8.4. Security Breach Notification.  You shall notify DFNS of any security breach of the Services, network, endpoint or system as soon as possible upon becoming aware of such an event. You shall cooperate in good faith with DFNS in the investigation of any suspected unauthorized access to or use of the Services using your accounts or credentials, and any security breach.

8.5. Risks.  You acknowledge that using digital assets and any blockchain-based solutions, networks and protocols may involve serious risks. The value of digital assets can change unexpectedly or rapidly. Certain digital asset transactions may take long periods of time to confirm or potentially remain incomplete. DFNS has no control over, and makes no representations regarding the value of digital assets, or the security of their networks or protocols. DFNS does not own or control any underlying software protocols that govern the operation of digital assets. DFNS is not responsible for certain changes which may materially affect the value, function, or name of digital assets. You acknowledge and agrees that: (i) DFNS is not responsible for the operation of any underlying digital asset or security assets protocols and DFNS makes no guarantee of their functionality, security, or availability; and (ii) if a change to a digital asset or security asset occurs, DFNS may temporarily suspend the Services relating to the asset affected, and configure or reconfigure its Services in a manner which may no longer support the changed protocol.

8.6. Insurance.  You are solely responsible for maintaining insurance policies for your digital assets, products, services and operations.

8.7. Integration. DFNS will have no responsibility or liability of your losses, or if you cannot access or control any token that DFNS does not support. 

8.8. Updates. You will install any updates or upgrades required by DFNS or Tokeny to benefit from the Services. Your use of outdated software is at Your own risk and neither DFNS or Tokeny will bear liability for any damage or loss or Services disruption for any use on unauthorized devices or outdated software.  

9. Third-Party Platforms.

You may choose to enable integrations or exchange your Data or digital assets with Third-Party Platforms. Except as regards to the provision of the Services, your use of a Third-Party Platform is governed by your agreement with the relevant third party, not these Terms, and DFNS is not responsible for Third-Party Platforms or how their providers use your data or digital assets.

10. Suspension.

DFNS may suspend your access to the Services and related Services due to a Suspension Event. DFNS is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved, DFNS will promptly restore your access to the Services in accordance with these Terms. “Suspension Event” means you are in breach of Section 8 (Usage Rules) or 18.11 (Export and Trade Sanctions Compliance) or (c) your use of the Services risks material harm to the Services or others.

11. Term and Termination.

11.1. Duration. The use of the Services are granted to you for an indefinite period, unless specified otherwise in any agreement between you and Tokeny     . Either party can request to terminate the contractual relationship at any time with a notice period of four (4) weeks, with copy of such notice to Tokeny who shall determine the course of action on the Partner Platform, if any.

11.2 Termination. DFNS may terminate the contractual relationship without notice if (a) you materially breach these Terms, (b) the Partner Platform and DFNS terminate their contractual relationship, or (c) you and the Partner Platform terminate your contractual relationship.

11.3 Data Export & Deletion.
(a)      During the term, you may export your data from the Services (or DFNS will otherwise make your data available).
(b)      After termination or expiration of these Terms, and within 60 days of request, DFNS will delete your data and each party will delete any Confidential Information of the other in its possession or control.
(c)       Nonetheless, the recipient may retain your data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to Section 5.2 (Data Rights), Section 17 (Confidentiality) and any DPA.

12. Transfer of the assets upon Termination.

After termination of the contractual relationship you and your Users will not have access to the wallets provided by DFNS. At the time of Termination you and your Users shall transfer all the assets accessible through the wallet to another compatible wallet, within a period of two (2) weeks following Termination. It is your and your Users sole responsibility to transfer the assets before Termination. You and your Users acknowledge and agree that failing to transfer the assets to another wallet before Termination may lead to irrevocable loss of those assets. 

13. Effect of Termination.

(a) Your right to use the Services will cease upon any termination or expiration of these Terms, subject to this Section 13.
(b) The following Sections will survive expiration or termination of these Terms: 5.3. (Feedback),  7.2 (Disclaimers), 8 (Usage Rules), 11.3 (Data Export and Deletion), 13 (Effect of Termination), 12 (Intellectual Property), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality), 16 (Required Disclosures), 19 (General Terms) and 18 (Definitions).
(c) Except where an exclusive remedy is provided, exercising a remedy under these Terms, including termination, does not limit other remedies a party may have.

14. Intellectual Property.

14.1 Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in these Terms. Except for yours express rights in these Terms, as between the parties, DFNS and its licensors retain all intellectual property and other rights in the Services, deliverables and related DFNS technology.

14.2 Feedback. If you give DFNS feedback regarding improvement or operation of the Services or support DFNS may use the feedback without restriction or obligation. 

15. Limitations of Liability.

15.1. Exclusions of Cap. DFNS has unlimited liability for intent and gross negligence and for any culpable injury to life, body or health.  

15.2. Exclusion of Liability. DFNS is not liable for lack of economic success, loss of profit, unforeseeable hacks,  and indirect damages when using the Services. 

15.3. General Cap. Except when specifically mentioned as unlimited, our entire liability arising out of or related to these Terms will not exceed five hundred (500) euros (the “General Cap“).

15.4. Consequential Damages Waiver. Neither party will have any liability arising out of or related to these Terms for indirect, special, incidental, reliance or consequential damages or damages for loss of use, data, lost profits or interruption of business, even if informed of their possibility in advance.

15.5. Exceptions. Sections 15.2. (General Cap) and 15.3. (Consequential Damages Waiver) will not apply to Uncapped Claims.

15.6. Nature of Claims. The waivers and limitations in this Section 15 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in these Terms fails of its essential purpose.

16. Indemnification.

16.1. Indemnification by DFNS. DFNS, at its own cost, will defend you from and against any claims and will indemnify and hold harmless you from and against any damages or costs awarded against you (including reasonable attorneys’ fees) or agreed in settlement by DFNS resulting from any third party claim for infringement or misappropriation of a third party’s intellectual property rights. 

16.2. Indemnification by you. You, at your own cost, will defend DFNS from and against any third-party claim arising from your breach or alleged breach of Section 9 (Usage Rules) of these Terms and will indemnify and hold harmless DFNS from and against any damages or costs awarded against DFNS (including reasonable attorneys’ fees) or agreed in settlement by your resulting from these claims.

16.3. Procedures. The indemnifying party’s obligations in this Section 16 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defense and settlement and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Services when DFNS is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

16.4. Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as DFNS determines necessary to avoid material liability, DFNS may: (a) procure rights for your continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement, without reducing the Services’ overall functionality. 

16.5. Exceptions. DFNS’s obligations in this Section 16 do not apply to claims resulting from (a) modification or unauthorized use of the Services, (b) use of the Services in combination with any items not provided by DFNS, including Third-Party Platforms or (c) Software other than the most recent release, if DFNS made available (at no additional charge) a newer release that would avoid infringement.

16.6. Exclusive Remedy. This Section 16 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third-party claims of intellectual property infringement or misappropriation covered by this Section.

17. Confidentiality.

17.1. Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under these Terms, (b) not disclose Confidential Information to third parties without discloser’s prior approval, except as permitted in these Terms, and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

17.2. Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for DFNS, any subcontractors), provided it remains responsible for their compliance with this Section 17 and they are bound to confidentiality obligations no less protective than this Section 17.

17.3. Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.

17.4. Remedies. Breach of this Section 17 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.

18. Required Disclosures. 

The recipient may disclose Confidential Information (including your data) to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.

19. Publicity. 

Neither party may publicly announce these Terms without the other party’s prior written approval unless required by Law.

20. General Terms.

20.1. Assignment. Neither party may assign these Terms without the prior written consent of the other party. Any non-permitted assignment is void. These Terms will bind and insure to the benefit of each party’s permitted successors and assigns.

20.2. Governing Law and Courts. The governing law in any action related to these Terms and which courts have jurisdiction over any such action shall be the law of France. The parties will adjudicate any such action and each party consents to the exclusive jurisdiction of the Courts of Paris, France.

20.3. Notices.
(a)       Except as set out in these Terms, notices, requests and approvals under these Terms must be in writing to the addresses on DFNS’ website and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. 

(b)     DFNS may send you operational notices through the Services, with copy of such notices to Tokeny.

20.4. Entire Agreement. These Terms constitute the parties’ entire agreement regarding its subject matter and supersede any prior or contemporaneous agreements regarding its subject matter. In these Terms, headings are for convenience only and “including” and similar terms are to be construed without limitation. 

20.5. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of these Terms is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of these Terms remains in effect.

20.6. Force Majeure. Neither party is liable for a delay or failure to perform these Terms due to a Force Majeure. 

20.7. Subcontractors. DFNS may use subcontractors and permit them to exercise its rights and fulfill its obligations.

20.8. Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

20.9. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.

20.10. Open Source. DFNS Software distributed to you (if any) may include third-party open source software (“Open Source“) in a list provided by DFNS upon request. If you elect to use the Open Source on a stand-alone basis, that use is subject to the applicable Open Source license and not these Terms.

20.11. Export and Trade Sanctions Compliance. You will not submit to the Services any data controlled under the U.S. International Traffic in Arms Regulations. You represent and warrant that: (i) you are not a citizen of, or located with, a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, Sudan, and the Crimea region of Ukraine); (ii) you are not identified on any U.S. government restricted party lists (including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control or by the U.S. Department of Commerce’s Bureau of Industry and Security); and (iii) no content created or submitted by you is subject to any restriction on disclosure, transfer, download, export or re-export under applicable export control laws. You agree not to use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any content to any country, entity or other party which is ineligible to receive such items under applicable export control laws or other laws or regulations which You may be subject.

21. Definitions.

“Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.

“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under these Terms, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. DFNS’ Confidential Information includes technical or performance information about the Services, and your Confidential Information includes your data.

“Data” means any data, content or materials that you (including you Users) submit to your Services accounts, including from Third-Party Platforms.

“Documentation” means DFNS’ standard usage documentation for the Services.

“Feedback” means DFNS’ data and learnings about your use of the Services, but excluding your Data.

“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failures, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.

“Laws” means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.

“Partner Platform” means the platform provided by Tokeny.

“Personal Data” means your data relating to an identified or identifiable natural person.

“Services” means DFNS’ proprietary Services, as made available through the Partner Platform and as modified from time to time. The Services include the Software but not Technical Services deliverables, or Third-Party Platforms.

“Software” means any proprietary apps or software that DFNS distributes to your as part of the Services.

“Third-Party Platforms” means any product, add-on or platform not provided by DFNS that you use with the Services.

“Uncapped Claims” means (a) the claims listed in Section 15.1 (Exclusions of Cap), (b) the claims covered for indemnification under Section 16 (Indemnification), (c) either party’s infringement or misappropriation of the other party’s intellectual property rights, (d) any breach of Section 17 (Confidentiality), excluding breaches related to your data, and (e) liabilities that cannot be limited by Law.

“User” means anyone that you allow to use your accounts for the Services, who may include your and your Affiliate’s (a) employees, advisors and contractors and (b) other parties if explicitly permitted under these Terms.

“Virus” means viruses, malicious code or similar harmful materials.