Hex Safe Custody Terms And Conditions

THIS IS AN IMPORTANT DOCUMENT.

PLEASE READ IT CAREFULLY AND KEEP IT FOR FUTURE REFERENCE.

These terms and conditions contain important information which apply to your dealings with us in relation to the services contemplated in this document. You should read this document carefully and keep it for future reference. Different terms and conditions may apply in relation to specific services offered by us. Any such terms and conditions are additional to the terms set out in this document.

Certain risks are described in this document; however, this document does not disclose or discuss all of the risks, or other significant aspects, of the transactions contemplated in this document. You should not construe these or any other statements as legal, tax or financial advice.

We are not acting as your financial advisor and you must not regard it as acting in that capacity. You should consult your own independent professional advisors before entering into any transaction and only enter into a transaction if you have fully understood its nature, the contractual relationship into which you are entering, all relevant terms and conditions and the nature and extent of your exposure to loss.

If you have any questions about this document, or in the event of any service difficulties or interruptions, please contact us using the details below.

Effective Date: March 2025 (Version 1.2)

1. Agreement to these Terms

1.1 This Agreement (as defined below) is entered into between you (“you” or the “Client”) and the entity specified in Clause 30 (the "Custodian").

1.2 By directly or indirectly accessing or using the services contemplated by this Agreement, you confirm that you have read, understood, accepted and agreed to be bound by all of the terms and conditions stipulated in this Agreement and any other document we have provided to you in connection with this Agreement or the services contemplated by this Agreement. If you do not agree to any of the terms and conditions in this Agreement, or any additional applicable terms and conditions, do not access or use such services. Each time you provide an Instruction (as defined below) or you otherwise directly or indirectly use or access Hex Safe (as defined below) or the Wallet (as defined below) or any services provided under this Agreement, you affirm your acceptance of, and agreement to, the terms of this Agreement and any other document we have provided to you in connection with this Agreement or the services contemplated by this Agreement.

1.3 Without limiting Clause 26, any previous or existing agreement between the Client and the Custodian is hereby amended and restated in its entirety by this Agreement.

1.4 If this Agreement is inconsistent with any content on Hex Safe or any related website or application, this Agreement prevails to the extent of the inconsistency.

1.5 Please read this Agreement carefully as it governs your use of the services contemplated by this Agreement. This Agreement explains many of your responsibilities to us and our responsibilities to you, how and when this Agreement can be terminated and the extent of your and our liability. This Agreement, which is currently in force, is available on Hex Safe and/or the Website (as defined below). We urge you to make a copy of this Agreement for future reference as it may change from time to time.

1.6 We reserve the right to amend or modify this Agreement at our sole discretion at any time by publishing such amended or modified Agreement on Hex Safe and/or the Website. Any and all modifications or changes will become effective upon publication and you agree and acknowledge that we will not explicitly notify you about any possible amendments and modifications and it is your responsibility to check this Agreement periodically for changes. Your continued use of the services contemplated by this Agreement following the publication of any changes to this Agreement will mean that you accept and agree to such changes.

2. Definitions and Interpretation

2.1 In this Agreement:

“Affiliate” means in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose, “control” of any entity or person means ownership of a majority of the voting power of the entity or person or the power, direct or indirect, to cause the direction or management of such entity or person, whether by contract or otherwise;

“Agreement” means these terms and conditions, the Handbook, the Supplement and any and all schedules, appendices or other attachments to these terms and conditions, the Handbook or the Supplement;

“Airdrop” means a distribution of a new token or tokens resulting from the ownership of a pre-existing token. For the purposes of Clause 10, an “Applicable Airdrop” is an Airdrop for which the distribution of new tokens can be definitively calculated (as determined by the Custodian) according to its distribution method, such as a pro rata distribution based on the amount of the relevant Virtual Assets held at a specified time. For completeness, a “Non-Applicable Airdrop” is an Airdrop for which the distribution of new tokens cannot be definitively calculated (as determined by the Custodian), such as a random distribution, a distribution to every wallet of the relevant Virtual Assets, or a distribution that depends on a wallet of the relevant Virtual Assets meeting a threshold requirement.

“AML/CTF Requirements” mean any Applicable Laws pertaining to money laundering, terrorism financing, bribery, corruption, tax evasion, fraud, the trafficking of arms, drugs, humans or wildlife, slavery, proliferation of weapons of mass destruction, suspicious transactions or economic sanctions, embargoes or restrictive measures imposed by the United Nations Security Council, Hong Kong, the United States of America, the United Kingdom of Great Britain and Northern Ireland, the European Union or its member states, or any other jurisdictions determined relevant by the Custodian from time to time;

“Applicable Laws” means, with respect to any person, any and all applicable treaties, statutes, legislation, laws, regulations, ordinances, codes, rules, rulings, judgments, orders, awards, or any form of decisions, guidance, advisories, determinations or requirements of or made or issued by, any Authority (whether or not having the force of law), as amended, modified or replaced from time to time, and to which such person is subject;

“Authorised Account Admin” means an Authorised User that has the authority to propose or approve, among other things, certain changes to the List of Authorised Users subject to the terms in this Agreement and the Handbook;

“Authorised Signatory” means an individual that has the power to sign in the name and on behalf of the Client;

“Authorised User” means an officer, employee, agent or other person (as applicable) of or for the Client that is authorised, either alone or with others, to act on the Client’s behalf in the giving of instructions and/or performance of any acts, discretions or duties under this Agreement;

“Authority” means any government or quasi-government (including supranational organisations), any agency, authority, regulatory body, commission, central bank, board, bureau, organ, court or other instrumentality of any government or quasi-government, any court or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, in each case whether national, federal, state, province, local, municipal or foreign (including supra-national bodies) or any self-regulatory organisation, stock exchange, securities council or listing organisation;

“Business Day” has the meaning specified in Clause 31.4, 32.4 or 33.4 as applicable;

“Data Breach” means any security breach or other action or inaction leading to the accidental or unlawful destruction, loss, alternation, unauthorised disclosure or access to Personal Data of the Client;

“Default Interest” has the meaning given to it in Clause 5.3;

“Event of Default” has the meaning given to it in Clause 21;

“Fee Supplement” means the fee supplement in such form as the Custodian may determine in its sole discretion;

“Fees” has the meaning given to it in Clause 5.1;

“Force Majeure Event” means, without limitations, events such as nationalization, expropriation, currency restrictions, acts of state, acts of God, earthquakes, fires, floods, typhoons, tsunami, wars, civil or military disturbances, sabotage, terrorism and cyber-terrorism, security, integrity, and availability of the blockchain networks, epidemics, pandemics, riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service, accidents, labour disputes, regulatory changes, central securities depository and central bank including their regulatory agencies, power failures or breakdowns in communications links or equipment of the Custodian or of its agents (or of any third parties as aforesaid);

“Handbook” means the handbook regarding certain procedural and other matters in connection with this Agreement in such form as the Custodian may determine in its sole discretion;

“Hard Fork” means a permanent divergence in a blockchain (e.g. when non-upgraded nodes cannot validate blocks created by upgraded nodes that follow newer consensus rules, or an airdrop or any other event which results in the creation of new tokens/cryptocurrencies), as determined by the Custodian (acting reasonably);

“Hex Safe” means the Custodian and its Affiliates’ proprietary custody platform designed with a multi-layered architecture to provide security for Virtual Assets.

“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China;“Instructions” has the meaning given to it in Clause 4.4;

“Loss” includes claims, liabilities, expenses (including legal fees), losses, costs and/or damages;

“Marks” has the meaning given to it in Clause 17.2;

“Notice of Force Majeure Event” has the meaning given to it in Clause 19.2(c);

“Onboarding Date” means the date on which the Client completes the Custodian’s onboarding process to the Custodian’s satisfaction;

“Party” means the Client or the Custodian.

“Personal Data” has the meaning specified in Clause 31.4, 32.4 or 33.4 as applicable.

“Process”, in relation to Personal Data, means (i) to carry out any operation or set of operations in relation to Personal Data, and includes recording, holding, organisation, adaptation/alteration, retrieval, combination, transmission and erasure/destruction; and (ii) to copy, use access, display, run, store, review, manage, modify, transform, translate, extract components into another work, integrate or incorporate as part of a derivative work, and (iii) to permit others to do (i) and (ii). “Processing” shall have the corresponding meaning as a noun for the same;

“Staking” means committing Virtual Asset holdings to a blockchain network in accordance with the rules of that blockchain;

“Staking Infrastructure” has the meaning given to it in Clause 13.8(g);

“Third Party Providers” has the meaning given to it in Clause 11.1;

“Third Party Services” has the meaning given to it in Clause 11.1;

“Travel Rule” has the meaning given to it in the Financial Action Task Force’s Updated Guidance for a Risk-Based Approach for Virtual Assets and Virtual Asset Service Providers issued October 2021, as amended, updated, supplemented, restated or replaced from time to time;

“USD” or “US Dollar” means the United States Dollar, the lawful currency of the United States of America; and

“Virtual Asset” means a digital representation of value that may be digitally traded, transferred, or used as an exchange or payment tool, or for investment purposes that are supported and held by the Custodian through the private key and all rights in respect thereof as specifically set out in https://help.hextrust.com/knowledge/what-blockchains-are-currently-supported-on-hex-safe-2 or any successor page (which list may be amended from time to time by the Custodian); and

“Wallet” means the Virtual Asset custody solution(s) maintained by the Custodian for the purpose of providing custody services to the Client under this Agreement, including any wallet created on Hex Safe.

“Website” means https://hextrust.com/ or any of its subdomains.

2.2 Words importing one gender only (be it masculine, feminine or neuter) shall include the other and, unless the context otherwise requires, words importing the singular number only shall include the plural and vice versa.

2.3 Words importing persons include companies and associations or bodies of persons, whether corporate or unincorporated.

2.4 References to Clauses are references to Clauses of this Agreement.

2.5 References to statutes include any statutory modifications or re-enactments thereof, or rules promulgated thereunder for the time being in force.

2.6 Clause headings are for convenience only and shall not affect the construction hereof.

2.7 References to this “Agreement” are references to this Agreement as from time to time amended, supplemented, restated or novated.

2.8 Schedules and appendices attached to this Agreement, the Fee Supplement and the Handbook (including their respective attachments, if any) form an integral part of this Agreement and are incorporated herein by reference.

2.9 A reference to a Party shall include that party's successors and permitted assigns.

2.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. Where the context permits, other and otherwise are illustrative and shall not limit the sense of the words preceding them.

2.11 In the event of any conflict, ambiguity or inconsistency between any schedule, appendix, the Fee Supplement or the Handbook and the clauses of this Agreement, then the following order of precedence shall apply:

1. the Fee Supplement;
2. the clauses of this Agreement;
3. the Handbook; and
4. any schedules or appendices to this Agreement.

3. Appointment of Custodian and Custody Arrangement

3.1 This Agreement governs the provision of custodial services by the Custodian to the Client, including the opening, maintenance and operation of the Wallet for Virtual Assets held or from time to time received by, transferred to or held to the order or under the direction or control of the Custodian for the account and benefit of the Client.

3.2 The Virtual Assets shall be held by the Custodian, which shall be responsible for their safekeeping on and subject to the terms of this Agreement.

3.3 The Client agrees not to pledge, charge, grant an option or otherwise create any encumbrances on the Virtual Assets without the prior written consent of the Custodian.

3.4 The Client confirms, acknowledges and consents that the Custodian is authorised, to the extent it is in compliance with Applicable Laws, to appoint, as the Custodian deems appropriate, any agents or sub custodians, whether in its own name or that of the Client, to perform any of the duties of the Custodian under this Agreement and is entitled to deposit the Virtual Assets in or with any depository system of its preference. Any reference in this Agreement to the Custodian shall, where the context so requires, include its agents or sub-custodians (which term shall also extend to any depository system) appointed by the Custodian on its behalf. Except for fraud or wilful misconduct on the part of the Custodian, the Custodian shall not be responsible for any act or omission or for the solvency of any agent or sub-custodian, appointed pursuant to this Clause and the relevant agent or sub custodian shall be deemed solely liable.

4. Authorised Users, Authorised Signatories, Authorised Account Admins and Instructions

4.1 The Client shall, on or before the Onboarding Date, provide the Custodian with a list of its Authorised Users, Authorised Signatories and Authorised Account Admins, together with evidence satisfactory to the Custodian of the appointment of each such Authorised User, Authorised Signatory and Authorised Account Admin as such.

4.2 Any change that the Client wishes to make to its Authorised Users, Authorised Signatories or Authorised Account Admins shall be made in accordance with the following rules, unless otherwise specified in the Handbook, in which case the Handbook shall prevail as to such matters:

1. any change in the details of the Authorised Users (including any addition or removal of an Authorised User) shall be made by written notice from any one (1) Authorised Signatory or any one (1) Authorised Account Admin;
2. any change in the details of the Authorised Account Admins (including any addition or removal of an Authorised Account Admin) shall be made by written notice from all Authorised Signatories then set out in the Handbook; and
3. any change in the details of the Authorised Signatories (including any addition or removal of an Authorised Signatory) shall be made by written notice from at least two (2) Authorised Signatories or, if there is only one Authorised Signatory, all Authorised Signatories, in each case, together with a board resolution authorising such change or such other supporting corporate documentation satisfactory to the Custodian in its sole discretion.

4.3 The Handbook shall be delivered by the Custodian to the Client on or promptly after the Onboarding Date (subject to the condition that the Client has promptly provided the Custodian with all information necessary to complete the Handbook), and may be amended from time to time by the Custodian on written notice in accordance with Clause 24.

4.4 The Custodian will act upon instructions (“Instructions”) from an Authorised User (or otherwise given on behalf of the Client) in such manner and through such channels as set forth in the Handbook via the electronic instruction system provided by the Custodian which shall have been transmitted with such security features as are agreed in writing between the Client and the Custodian and on such terms and conditions as the Custodian may specify, provided that (i) Instructions shall continue in full force and effect until cancelled or superseded (except in respect of Instructions executed by the Custodian which can no longer be cancelled), (ii) Instructions shall be carried out subject to the rules and operating procedures set out by the Custodian, and (iii) the Custodian may rely, in the performance of its duties under this Agreement and without liability on its part, upon any Instructions believed by the Custodian in good faith to be given by an Authorised User (or otherwise to have been given on behalf of the Client) and upon any notice, request, consent, certificate or other instrument believed by the Custodian in good faith to be genuine and to be signed or furnished by the proper Party or Parties thereto, including (without limitation) the Client or any Authorised User.

4.5 Without limiting Clause 13.10, the Custodian may refuse or delay execution of any Instructions if, in the Custodian’s sole opinion:

1. such Instructions are illegible, unclear, ambiguous, conflicting, suspicious and/or detrimental to the Client;
2. execution of such Instructions would be outside the scope of the Custodian’s duties under this Agreement or contrary to any Applicable Laws;
3. such Instructions may not be authorised; or
4. there is a dispute among the Client’s shareholders and/or directors.

4.6 Except as otherwise provided in this Agreement, all transactions involving the Virtual Assets shall be executed or settled or otherwise carried out solely in accordance with Instructions.

4.7 Except as otherwise agreed by the Custodian, the Custodian shall not be required to take any action to comply with any Instructions or to take any other action hereunder (including in the event that Virtual Assets are to be delivered to a third party) if the Virtual Assets are not standing to the credit of the Wallet, freely available and in deliverable form.

4.8 Instructions shall be strictly provided in accordance with the Handbook.

5. Fees, Expenses and Interest

5.1 For the services provided by the Custodian, the Client shall pay fees, charges, costs and other amounts to the Custodian set out in the Fee Supplement (the “Fees”), which may include Fees in connection with any action taken under Clause 4.5 or 13.10. The Fee Supplement shall be delivered by the Custodian to the Client on or promptly after the Onboarding Date, and may be amended from time to time by the Custodian on written notice in accordance with Clause 24.

5.2 Unless otherwise agreed by the Parties in writing, Fees are due and payable within ten (10) days of the date of invoice presented to Client and the Client authorises and directs the Custodian to deduct any and all such Fees from any Virtual Assets held in the Wallet. All Fees are payable in US Dollars and, if paid by Virtual Assets, shall be paid in the US Dollar equivalent amount using an exchange rate reasonably determined by the Custodian. All fees are exclusive of any taxes and duties or similar charges which shall be payable by the Client at the rate and in the manner from time to time as notified by the Custodian. The Fee once paid to the Custodian by the Client is non-refundable, regardless of whether this Agreement is terminated (with or without cause).

5.3 Without prejudice to any other rights and remedies available to the Custodian hereunder, in the event that the Client fails to fully settle any amount (including but not limited to any Fees) when it becomes due and payable:

1. the Custodian may, at its sole discretion, immediately suspend its performance of the services and obligations under this Agreement, without any liability to the Custodian of any kind, until the Custodian has received the full amount payable by the Client, and
2. a default interest (“Default Interest”) shall accrue on the overdue amount from the due date up to the date of actual payment at the rate per annum specified in the Fee Supplement (provided if the rate exceeds the maximum rate permitted by the Applicable Laws, the maximum rate permitted by the Applicable Laws shall prevail). Such Default Interest shall be calculated by the Custodian on a daily basis and is immediately due and payable to the Custodian. Any payment received from the Client will first apply to settle the outstanding Default Interest, then the remaining payment will be used to settle the outstanding Fee. The Client acknowledges and agrees that the Default Interests under this Clause are fair and acceptable to the Client being liquidated damages in favor of the Custodian for the estimated loss incurred by the Custodian due to the Client’s failure to pay the Fees when due.

5.4 The Custodian may, upon thirty (30) days written notice, adjust and re-adjust the amounts and/or intervals at which such Fees are payable, after which period such Fees shall be paid in accordance with the relevant notice.

5.5 No interest is due from the Custodian to the Client on the Virtual Assets held in the Wallet.

6. Duties of the Custodian

The Custodian shall:

6.1 hold the Virtual Assets in segregated accounts in its books, arrange for the Virtual Assets to be deposited in the Wallet or otherwise held by or to its order as it may think proper for the purposes of providing for their safekeeping, and record the amounts and locations thereof; and

6.2 not: (i) use or commingle the Virtual Assets with its own Virtual Assets or with those of any other customers; (ii) make any loans using the Virtual Assets as collateral or security; or (iii) take any action that would cause the Virtual Assets to be used for any purpose other than as instructed pursuant to an Instruction of the Client.

7. Duties of the Client

The Client shall:

7.1 promptly provide to the Custodian any changes to any information and Client authorisations required, necessary, or appropriate in connection with this Agreement in writing or in such manner as may be reasonably required by Custodian or as required by any Applicable Laws or any other international regulatory requirements;

7.2 provide to Custodian any information or documents that may reasonably be requested by the Custodian, not later than seven (7) calendar days after such request, for the purpose of the Know-Your-Client (KYC) procedures and AML/CTF Requirements or as required by any Applicable Laws (whether in relation to the origin of the Virtual Assets deposited or expected to be credited to the Wallet of the Client or otherwise); and

7.3 promptly provide all reasonable assistance to the Custodian for complying or fulfilling any requests, enquiries or requirements from relevant Authorities. For the avoidance of doubts, the Custodian shall have the rights (and be deemed to have Client’s authorisation) to provide any information or documents received from the Client in relation to this Agreement to the relevant Authorities pursuant to their requests, enquiries or requirements;

7.4 at all times comply, with all Applicable Laws, including but not limited to, AML/CTF Requirements (including any future obligations that may be imposed by laws or regulations, to know its customers, their source and use of funds and/or Virtual Assets, and to monitor for and identify suspicious activity), regulatory filings;

7.5 review and inform the Custodian promptly of any suspicious activities and filing suspicious transaction reports for its own accounts;

7.6 provide to Custodian all information that may reasonably be requested by the Custodian for the purpose of complying with the Travel Rule, including without limitation name, residential address and wallet address of the originator and beneficiary of certain Virtual Asset transactions, a list of the Client’s most-frequently used (also known as whitelisting of) wallet addresses to facilitate the Custodian’s compliance with Travel Rule. In this paragraph, information shall be deemed to be reasonably requested whether or not compliance with the Travel Rule is required under Applicable Law to which the Custodian is subject; provided, that, where such compliance is not mandatory, the Custodian and the Client shall use commercially reasonable efforts to cooperate in furtherance of such compliance; and

7.7 provide without delay the documentary evidence necessary for the Custodian to carry out its client due diligence measures upon request from overseas or local regulators or otherwise as reasonably required by the Custodian.

8. Reporting and Information

The Custodian shall provide the Client or its authorised agent with periodical reports, transaction advice and/or statements of accounts relating to the Virtual Assets of the Client, the dates and depth of reporting level of which shall be as expressly agreed in writing between the Custodian and the Client from time to time. In the absence of the filing with the Custodian by the Client of exceptions or objections to any information, report, statement, confirmation, note or other document within thirty (30) days of the date of receipt thereof, the Custodian shall have no responsibility for any errors or omissions therein and the Client shall be deemed to have approved the contents thereof and accepted responsibility for all of its obligations appearing therein.

9. Non-exclusivity and Own Account Dealing

The services provided by the Custodian under this Agreement shall be deemed non-exclusive, and nothing contained in or implied by this Agreement shall be construed so as (i) to prevent the Custodian, its agents or its or their associated companies, principals, Affiliates or employees in any way from purchasing, selling or otherwise dealing in any Virtual Assets or other assets (whether forming part of the Virtual Assets or not) for its or their own account prior to, simultaneously with, or subsequent to any dealings on behalf of the Client, or (ii) from providing similar services to or entering into similar agreements with any customers or other persons or (iii) to impose any duty of disclosure or liability to account for any profit made by any of them in relation to any of the foregoing.

10. Right to new tokens as a consequence of Hard Fork and Airdrop

10.1 If new tokens are generated due to a Hard Fork in the Virtual Assets protocol or an Applicable Airdrop (the “New Tokens”), the right of the Client to such New Tokens shall be as follows:

1. subject to the conditions set out in Clause 10.1(b) having been met and/or waived by the Custodian at the Custodian’s sole discretion, if the New Tokens are generated in connection with Virtual Assets legally and beneficially owned by the Client and are under the custody of the Custodian pursuant to the terms hereof, the Client shall have right to receive such New Tokens, into the Client’s Wallet and the New Tokens shall be subject to the terms of this Agreement (including but not limited to the obligations to pay Fee regarding the New Tokens);
2. the conditions that will be evaluated by the Custodian at the Custodian’s sole discretion to decide whether or not to support the Hard Fork or Applicable Airdrop are the following:
   1. the relevant Hard Fork or Applicable Airdrop is technically stable and safe in the sole opinion of the Custodian based on the following factors: (i) satisfactory due diligence being carried out on the technical team creating the relevant Hard Fork or Applicable Airdrop; (ii) whether the relevant Hard Fork or Applicable Airdrop provide sufficient protection to prevent or mitigate any hacking, cyberattacks or any malicious attacks (including but not limited to replay protection and wipeout protection be in place in the original blockchain networks); and (iii) the strength of the relevant Hard Fork or Applicable Airdrop’s validator or mining capacity;
   2. the value within the relevant Hard Fork or Applicable Airdrop is measurable on top 10 exchanges to be more than USD100 millions of value globally (which amount is subject to the Custodian’s sole discretion);
   3. the New Tokens have sufficient liquidity in the market on reputable exchanges for a sustained period of time, in which case they shall have at least USD25 millions of daily liquidity available on well-known, trustworthy exchanges for a period of 14 days (which amount and period are subject to the Custodian’s discretion to vary or base on a different standard);
   4. the cost to support and maintain the New Tokens is within the Custodian’s business plan and budget, and the New Tokens have sufficient value to the Custodian’s business as a whole in the Custodian’s sole opinion. For the purpose of this Clause, “sufficient value” shall mean the expected return or revenue or any other means of value deemed relevant to Custodian’s business, in the Custodian’s sole opinion, that justifies the Custodian’s investment or cost involved in supporting the New Tokens;
   5. relevant prior notice received by and/or made available to the Custodian regarding the introduction of the Hard Fork or Applicable Airdrop at least ninety (90) days (which period are subject to the Custodian’s discretion to vary or base on a different standard) prior to the occurrence of the relevant Hard Fork or Applicable Airdrop so to allow the Custodian to have sufficient time to support and manage the distribution of the New Tokens; and
   6. any other conditions or criteria (including but not limited to new technological, legal, environmental or any other factors that may emerge) as the Custodian may deem fit when assessing the viability of enabling the Client to access any New Tokens; and
3. the Custodian may not inform the Client about the occurrence of any Hard Fork in the Virtual Assets protocol or any Applicable Airdrop unless the Client is entitled to receive the New Tokens (and in the case of Applicable Airdrop, only if the Applicable Airdrop is specifically linked to a Hard Fork), in which case, Custodian shall inform the Client via email or periodical reports, transaction advice and/or statements of accounts pursuant to Clause 8; and
4. the Custodian is hereby duly authorised by the Client to manage, arrange, deposit the New Tokens into the Wallet of the Client, or credit the New Tokens to the Client’s account as soon as reasonably practicable.

11. Accessing Third Party Services

11.1 The Client may access certain optional third party services (“Third Party Services”) provided by external and independent third party providers (“Third Party Providers”) through Hex Safe and/or the services provided by the Custodian, in connection with the Client’s use of the Services. Client hereby acknowledges and agrees that such Third Party Services are provided directly by the Third Party Provider and are completely in the relevant Third Party Provider’s control. Third Party Services to Client are subject to the Third Party Provider's applicable terms and conditions. The Custodian has no obligation to make such terms and conditions available to Client (but may in its discretion assist in doing so) and the Client is solely responsible for informing itself of such terms and conditions. The Custodian is not responsible for the quality of Third Party Services provided by the Third Party Providers to Client. By accepting the Third Party Provider’s terms and conditions, Client is engaging directly with the Third Party Provider and the Custodian will not be liable for any acts or omissions of such Third Party Provider, including failure of such Third Party Service to perform to any particular standard. In no manner does Client’s ability to access Third Party Services via Hex Safe and/or the services provided by the Custodian constitute a recommendation or endorsement of those Third Party Services by the Custodian. Client agrees to comply with all applicable Third Party Provider’s terms and conditions when accessing the Third Party Services through Hex Safe and/or the services provided by the Custodian.

11.2 In order to use Third Party Services via Hex Safe and/or the services provided by the Custodian, Client may need to provide certain information to the Third Party Providers. Client acknowledges and agrees that the Custodian may share any data (including without limitation, Personal Data) Client provides when using such Third Party Service to the applicable Third Party Providers for the sole purpose of facilitating the integration of Service with the Third Party Services. Client hereby authorises and consents to the Custodian sharing only such data as is necessary to ensure the smooth functioning of the Third Party Services.

11.3 The Custodian cannot warrant and does not warrant that (i) the Third Party Providers content available on Hex Safe and/or the services provided by the Custodian is accurate, complete, reliable, current, or error-free; or (ii) the Third Party Services are in compliance with Applicable Laws.

11.4 The Custodian is not responsible for any Loss resulting from the use of Third Party Services, including Losses from interaction with malicious smart contracts or failure or error in the completion of any transaction.

11.5 CLIENT IS SOLELY RESPONSIBLE FOR ITS CHOICE AND USE OF ANY THIRD PARTY SERVICES OFFERED THROUGH HEX SAFE AND/OR THE SERVICES PROVIDED BY THE CUSTODIAN AND NOTWITHSTANDING CLAUSES 12 (REPRESENTATIONS AND WARRANTIES), 23 (LIMITATION OF LIABILITY) BELOW AND ANY OTHER WARRANTIES, COVENANTS AND UNDERTAKINGS BY THE CUSTODIAN IN THIS AGREEMENT, THE CUSTODIAN AND ITS AFFILIATES MAKE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED (BY LAW OR OTHERWISE), AND HEREBY DISCLAIM ALL LIABILITY, WITH RESPECT TO SUCH THIRD PARTY SERVICES.

11.6 THE CUSTODIAN RESERVES THE RIGHT TO INITIATE OR TERMINATE CONNECTIVITY WITH ANY THIRD PARTY PROVIDERS, OR MODIFY THE RULES FOR ACCESSING TO THE THIRD PARTY SERVICES, AT ANY TIME IN ITS SOLE DISCRETION BY PROVIDING THE CLIENT AT LEAST FIVE (5) DAYS PRIOR NOTICE.

12. Representations and Warranties

12.1 Each Party represents, warrants, and undertakes to the other Party that:

1. (if such Party is not a natural person) it is a company or other entity or organization duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization;
2. it is duly authorised, and will remain duly authorised, (or, if such Party is a natural person, it has full capacity and will remain having full capacity) to enter into this Agreement and to perform its obligations hereunder, and that such entry and performance does not contravene any Applicable Laws. Without limiting the generality of the aforementioned, this Agreement shall be subject to approval by any regulatory organization(s) vested with the authority to review or approve it. Custodian and/or the Client may submit the Agreement to any such organization(s) from which approval is required. In the event of disapproval, the Parties shall cooperate in good faith to achieve the requisite approval(s);
3. it shall comply with all applicable personal data protection laws and privacy laws (as amended and revised from time to time) in respect of any Personal Data it has access to in connection with the performance of its duties hereunder;
4. if either Party shall become aware of any existing or proposed laws, rules or regulations that may have a material adverse effect on the custody services contemplated by this Agreement, such Party shall promptly provide the other Party with such details as are reasonably available;
5. its obligations under this Agreement (and under any other documentation as aforesaid) constitute its legal, valid and binding obligations; and
6. it is not insolvent.

12.2 The Client further represents and warrants, and undertakes to the Custodian that:

1. it has disclosed, or will promptly disclose, to the Custodian all material actions, suits, claims, investigations or proceedings by or before any Authority which have been commenced or threatened or are pending against the Client or any of its assets;
2. it is the beneficial owner of the Virtual Assets (or otherwise has all necessary authorisations and consents to enable the Client to deal with the Virtual Assets) and, if the Client is acting as trustee, manager or otherwise in a representative capacity in relation to the Virtual Assets, that it is fully empowered to enter into and perform its obligations under this Agreement (and under any other documentation as aforesaid) and to grant the rights and remedies to the Custodian contained herein and therein;
3. the information provided under this Agreement is true, accurate and complete and the Custodian is entitled to rely on such information until the Custodian has received notice in writing from the Client of any changes to such information;
4. the Handbook as in effect from time to time sets out each of the Authorised Account Admins, Authorised Users and Authorised Signatories. The Client shall (in accordance with Clause 4.2) notify the Custodian of any changes or inaccuracies as to the Authorised Account Admins, Authorised Users and Authorised Signatories set out in the Handbook as soon as reasonably practicable. The Custodian, prior to the date falling seven Business Days after being notified of such change or inaccuracy, shall have no liability for acting on information set out in the Handbook then in effect or that is otherwise current in the Custodian’s records, and, for the avoidance of doubt, any such liability shall be subject to the limitations set out elsewhere in this Agreement (including Clauses 13 and 23); and
5. there are no proceedings or investigations pending or, to the best knowledge of the Client, threatened against the Client (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Client pursuant to this Agreement, (iii) that would have a materially adverse financial effect on the Client or its operations if resolved adversely to it, or (iv) seeking any determination or ruling that would materially and adversely affect the performance by the Client of its obligations under this Agreement.

13. Scope of Responsibility and Indemnity

13.1 Subject to the terms hereof the Custodian shall use all reasonable care in the performance of its duties under this Agreement but shall not be responsible for any Loss suffered by the Client as a result of the Custodian performing such duties unless the same results from an act of fraud, wilful misconduct or gross negligence on the part of the Custodian declared with a final decision taken by a competent court or authority and in which event the liability of the Custodian in connection with the Virtual Assets so affected by the Custodian’s fraud, wilful misconduct or gross negligence as aforesaid shall not exceed the limitations set out in Clause 23.2.

13.2 The Custodian shall not be responsible for the title, validity or genuineness of any of the Virtual Assets (or any evidence of title thereto) received or delivered to it pursuant to this Agreement, unless otherwise expressly agreed in writing with the Custodian.

13.3 The Custodian shall not be responsible for any filings, tax returns and/or similar reports on any transactions undertaken pursuant to this Agreement or in connection with the Virtual Assets which must be made to any relevant Authority whether governmental or otherwise and for the payment of all unpaid calls, taxes (including without limitation any value added tax), levies or duties, or any other liability or payment arising out of or in connection with the Virtual Assets, and in so far as the Custodian is under any obligation (whether of a governmental nature or otherwise) to pay the same on behalf of the Client it may do so without Instructions from the Client by debit to the Wallet.

13.4 The Custodian is not acting under this Agreement as manager or investment adviser to the Client, and responsibility for the selection, acquisition and disposal of the Virtual Assets remains with the Client at all times. The Custodian shall have no obligation to explain or warn of any risks taken or to be taken by the Client.

13.5 The provision of services under this Agreement does not constitute the Custodian an agent, a fiduciary or a trustee for the Client and the Custodian shall have no trust or other obligations in respect of the Virtual Assets except as expressly stated in this Agreement. Under no circumstances will the contractual relationship between the Custodian and the Client be construed to create the relationship of principal and agent, trustee and beneficiary, employer and employee, partners or joint-venturers.

13.6 The Custodian shall be entitled to rely upon any order, judgment, decree, certification, direction, demand, notice or other written instrument (including any Instruction) delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Custodian may acting in good faith, act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so.

13.7 The Custodian may consult with, and obtain advice from, legal counsel in the event of any question as to any of the provisions hereof or the duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the opinion and instructions of such counsel.

13.8 The Client expressly understands and agrees that the Custodian shall, save as stated in Clause 13.1 above, have no responsibility for and shall not be liable for any Loss incurred by the Client caused by or resulting from any of the following:

1. delay in the actual receipt by the Custodian of Instructions from the Client relating to any payment, redemption or other transaction, or delay in the actual receipt of such payment or in the actual occurrence of such redemption or transaction, relating to Virtual Assets forming or to form part of the Virtual Assets and effected or to be effected hereunder;
2. loss of or damage to, or theft of, any part of the Virtual Assets held and/or administered by or under the direction or control of any agent appointed by the Custodian as per Clause 3.4 (or by any third party instructed by or through it or any such agent) or any Third Party Providers as per Clause 11, the acts or omissions of such an agent (or any third party as aforesaid) or such Third Party Providers, or the bankruptcy, liquidation, winding up or similar act of or by such an agent (or any third party as aforesaid) or such Third Party Providers, provided that (only in the case of an agent) the Custodian has exercised all reasonable care in selecting the relevant agent;
3. fraud, wilful misconduct or gross negligence by any of the Authorised Users, the Authorised Signatories or the Authorised Account Admins;
4. execution of an Instruction by the Custodian in accordance with the terms of that Instruction; without limiting the generality of the foregoing, the Custodian shall not be liable for any Loss incurred by the Client as a result of signing any message specified by the Client (whether in bytestrings format or otherwise) or signing any transfer of Virtual Assets to an incorrect address provided by the Client;
5. the risks set out in the Risk Factors and Disclosure Statement and Acknowledgement under Schedule A;
6. any Force Majeure Event or other events beyond the Custodian’s reasonable control; and
7. if any Virtual Assets of the Client are Staked pursuant to an Instruction to transfer or delegate those Virtual Assets to a node, oracle, contract, address or other medium or infrastructure for Staking specified by the Client (“Staking Infrastructure”), any Loss of or in respect of those Virtual Assets, including total Loss or partial Loss whether resulting from (i) slashing penalties, (ii) any other forfeiture in accordance with applicable blockchain rules, (iii) any act or omission or fault, delay, malfunctioning, misperformance, negligence or policy of Staking Infrastructure providers or other third parties or (iv) any other reason.

The exclusions of this Clause shall apply to any delegate appointed by the Custodian under Clause 3.4. The Custodian may, with no obligation to do so, use commercially reasonable efforts to assist the Client in avoiding, minimizing or mitigating such Losses as aforesaid, but in no event shall such efforts be seen or construed as a declaration of any responsibility of the Custodian.

13.9 The Custodian shall be indemnified by the Client against any Losses incurred by the Custodian and arising out of any action taken or omitted to be taken by the Custodian under this Agreement or pursuant to any Instructions, including but not limited to (i) any taxes or other governmental charges, and any expenses related thereto, which may be imposed or assessed with respect to the Virtual Assets, (ii) the Custodian or any agent of the Custodian, appearing as holder or holder of record of the Virtual Assets or any part thereof, and/or (iii) Losses arising from any action taken or omitted to be taken in accordance with Clause 13.10, but in each case excluding those Losses which arise (whether through act or omission) as the result of fraud, willful misconduct or gross negligence on the part of the Custodian in the performance of its duties under this Agreement.

13.10 Notwithstanding anything to the contrary contained in this Agreement, the Custodian may hold or freeze the Wallet or any Virtual Assets in whole or in part (including by suspending withdrawals from the Wallet or refusing or delaying execution of Instructions) or refuse to comply with any claims, demands or Instructions with respect to the Virtual Assets and to retain the Virtual Assets until required to release them in accordance with an order or direction from an Authority and shall not be held liable for any Losses incurred as a result of doing so if:

1. the Custodian is subject to an order or direction from an Authority which directs the Custodian to do so or that otherwise extends to or deals with the Wallet or any Virtual Assets (in which event the Custodian is hereby authorized to act in accordance with such order or direction). The Custodian shall, within seven days following any request by the Client for a copy of such order or direction, provide the Client such copy to the extent it is lawful and permissible by the terms of such order or direction to do so;
2. in the Custodian’s sole opinion, there is reason to believe that (i) there has been conflicting, unauthorised or fraudulent giving of Instructions or use of the Wallet (including circumstances where such Instructions or use by or from Authorised Users, Authorised Signatories and/or Authorised Account Admins conflict or suggest that one or more of such persons no longer holds such office or position); (ii) the security of the Wallet is compromised; and/or (ii) any information or documentation submitted by the Client to the Custodian may be inaccurate or not authentic;
3. there are adverse claims or demands being made by a third party in connection with the Virtual Assets (until the Client demonstrates to the Custodian's satisfaction, acting in good faith, that the adverse claims or demands have been dismissed or withdrawn by the third party); or
4. the Custodian, acting in good faith, is in doubt as to what action it should take under this Agreement (until the Client demonstrates to the Custodian's satisfaction, acting in good faith, that the circumstances giving rise to the relevant doubt have been resolved or clarified such that the Custodian is no longer in doubt as to what action it should take hereunder).

13.11 The Custodian shall not be required to perform any obligation under this Agreement if performance would result in a breach of any Applicable Law, or any order or direction from any Authority.

14. Confidentiality

14.1 “Confidential Information” means any and all information disclosed by either Party to the other which is marked “confidential” or “proprietary”, or which the recipient knows or has reason to know is regarded by the disclosing party as such, including oral information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorised to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorisation; (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the Parties shall reasonably cooperate (at the other party’s sole cost and expense) to limit disclosure.

14.2 Neither Party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations set forth under this Agreement or as expressly authorised in writing by the other Party. Each Party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither Party shall disclose the other Party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those in this Clause. Upon any termination of this Agreement, subject to any bona fide record retention requirements under Applicable Law, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.

14.3 If so requested, the Client shall provide to the Custodian a signed statement confirming that it has fully complied with Clause 14.2 above.

15. Personal Data

15.1 During the term of this Agreement, the Client may choose to provide or make accessible to the Custodian certain Personal Data of the Client (“Client Personal Data”). The Client hereby grants the Custodian a royalty-free, fully-paid, irrevocable, non-exclusive license to use, Process, display, copy and store the Client Personal Data in order to provide the custody service to the Client under this Agreement.

15.2 The Client shall own all rights, title and interest in and to all of the Client Personal Data. The Client represents and warrants that it owns or has obtained the rights to all of the rights subsisting in the Client Personal Data and the Client has the right to provide the Custodian the license granted herein to use such Client Personal Data in accordance with this Agreement. The Client further represents and warrants that to the extent Client Personal Data includes any personally identifiable information or data, the Client has received the required consents or permits and has acted in compliance with applicable data protection laws, privacy laws and regulations, as to allow the Custodian to receive, Process and use Client Personal Data solely in order to perform the services hereunder. The Client shall have sole responsibility for the reliability, integrity, accuracy and quality of Client Personal Data.

15.3 In the event of any Data Breach, the Custodian shall:

1. as soon as commercially reasonable after becoming aware of the Data Breach notify the Client of the Data Breach, an assessment of the risks arising from the Data Breach and provide the Client with such details as the Client reasonably requires regarding the Data Breach; and
2. restore the Client Personal Data, to as close its original state as practical and institute appropriate measures to prevent any recurrence of the problem as soon as commercially practicable.

15.4 To the extent permitted by Applicable Laws, the Client shall not disclose to any regulatory authority or issue a public statement of such Data Breach without first consulting with, and obtaining consent (not to be unreasonably withheld or delayed) of the Custodian.

16. No Agency

The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

17. Restriction and Advertising

17.1 Neither Party shall utilize the name of the other in any way without the other’s prior written consent except to disclose the relationship between the Parties or pursuant to Clause 17.2 below. Neither Party shall employ the other’s name in such a manner as to create the impression that the relationship between them is anything other than that of custodian and intermediary. Neither Party shall hold itself out as an agent of the other or as a subsidiary or company controlled directly or indirectly by or affiliated with the other Party except as provided in this Clause.

17.2 Notwithstanding the foregoing, the Client acknowledges and agrees that the Custodian (and its Affiliates) may use the name, logo, trademarks and service marks (“Marks”) of the Client on a royalty-free basis in any advertisement, brochure, or piece of marketing material or for any product advertising or any other promotional purpose, provided that the Client shall have the right to revoke permission of such use of the Marks at any time upon a seven (7) day prior written notice to the Custodian. Upon revocation, the Custodian (and its Affiliates) shall discontinue using any such Marks and exercise commercially reasonable efforts to remove the Marks from any advertising materials under the Custodian’s possession and control as soon as reasonably practicable. Nothing contained in this Agreement shall be deemed to grant the Custodian any goodwill, title or interest in the Marks of the Client. In addition, at any time following the date falling three (3) months after the Onboarding Date, the Client shall, upon the Custodian’s request, use its reasonable endeavours to collaborate with the Custodian on the preparation of marketing material or any product advertising or any other promotional purpose for the Custodian.

18. Regulatory Requirements

Notwithstanding any provision of this Agreement to the contrary, but subject to the provisions of Clause 31.1, 32.1 or 33.1 (as applicable), where the Custodian is for the time being subject to any regulatory requirements (including Hong Kong regulations or VARA requirements (as applicable) or otherwise) in relation to its dealings with the Client under this Agreement, the rights and obligations of the Custodian under the provisions of this Agreement shall be read and construed to the greatest extent permitted by, and in accordance with such applicable regulatory requirements.

19. Term and Termination

19.1 This Agreement shall continue until terminated in accordance with the provisions of Clause 19.2.

19.2 Except as otherwise provided in this Agreement, this Agreement may be terminated:

1. by either Party, by giving sixty (60) days' prior written notice to the other;
2. by the Custodian if (i) an Event of Default has occurred; (ii) the Custodian determines that this Agreement or the Custodian’s performance of it may not comply with Applicable Law, including any AML/CTF Requirements; or (iii) the Custodian determines that this Agreement or the services provided under this Agreement may be used to circumvent any Applicable Law, including any AML/CTF Requirements; or
3. by either Party if a Force Majeure Event affecting the Custodian has occurred. In the case of a Force Majeure Event, the Custodian shall give a written notice to the Client (“Notice of Force Majeure Event”) as soon as reasonably practicable (in any event within fifteen (15) days after the occurrence) specifying the cause of the event, the scope of commitments under the Agreement affected by the event, and a good faith estimate of the time required to restore full performance. The Custodian shall use its commercially reasonable efforts to mitigate the effects of such Force Majeure Event. If the Force Majeure Event continues for a period of more than ninety (90) days from the date of the Notice of Force Majeure Event, either Party shall be entitled, at its sole discretion, to terminate the Agreement.

20. Effect of Termination

20.1 The Client shall, within ten (10) days following the date of any notice of termination given or received under this Agreement, specify in writing the addresses to which the Custodian shall (at the cost and expense of the Client, and by such method(s) and/or to such location(s) as the Parties may agree) deliver or transfer the Virtual Assets.

20.2 Upon termination of this Agreement, all amounts including the Fees due by the Client to the Custodian under this Agreement shall become immediately due and payable, and the Custodian shall to the extent practicable deliver or transfer the Virtual Assets to the Client or to such other person(s) as the Client shall instruct within thirty (30) days of receipt of such instruction (as contemplated by Clause 20.1), net only of any outstanding liabilities attaching to the Virtual Assets of which the Custodian is or becomes aware and of any Fees and expenses owed to the Custodian under this Agreement. The Custodian is authorised and directed to deduct any and all such Fees and expenses from any Virtual Assets held in the Wallet before such delivery or transfer.

20.3 The Custodian shall not be under any obligation to deliver or transfer the Virtual Assets to the addresses specified as aforesaid until all Fees and other amounts which the Custodian determines to be owed to it hereunder have been paid.

20.4 The Fees due to the Custodian by the Client shall be computed until the day of the actual delivery or transfer of the Virtual Assets to the addresses specified as aforesaid.

20.5 The Client is solely responsible for the delivery or transfer of its remaining Virtual Assets on termination of this Agreement. If the aggregate value of any type of Virtual Asset in the Wallet is less than US$100 on termination of this Agreement, then all of the Virtual Assets of such type in the Wallet shall pass to the Custodian as a termination fee. If the aggregate value of any type of Virtual Asset in the Wallet is more than US$100 on termination of this Agreement, then the Custodian shall continue to apply its Fees to such remaining Virtual Assets and shall have a right to deduct applicable Fees directly from such remaining Virtual Assets until the value of the remaining Virtual Assets of such type becomes less than US$100 (and automatically passes to the Custodian as a termination fee) or the Clients specifies where such remaining balance(s) should be transferred, whichever is earlier.

21. Events of default

Any of the following events shall constitute an event of default (“Event of Default”):

21.1 Client’s failure to pay the Fees or any other sums payable to the Custodian under this Agreement when called upon to do so or on due date;

21.2 any breach by the Client of any of the terms of this Agreement;

21.3 any representation or warranty made by the Client in this Agreement or in any document being or becoming false, incorrect or misleading in any material respect;

21.4 the Client is charged with or convicted of any criminal offence, and/or defaults in the observance of any Applicable Laws; and/or

21.5 the Client (1) becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership or liquidation for the benefit of creditors, or ceases doing business; (2) has levied or enforced against it or any of its properties any attachments or execution of other process; (3) novates or assigns, or purports to novate or assign, this Agreement in violation of Clause 28; (4) is suspended, prohibited or otherwise becomes unable to engage in the activity for which it currently engages in as a result of any administrative or judicial proceedings or action by any Authority; or (5) if the Client is a natural person, the Client dies, is of unsound mind or becomes incapacitated.

22. Successors

This Agreement shall bind and enure for the benefit of the Parties hereto and their respective successors or permitted assigns.

23. Limitation of liability

23.1 To the extent permitted by Applicable Laws, in no event will the Custodian be liable to the Client for any loss of business, loss of profits, loss of turnover, loss of revenue, or loss of opportunity (whether indirect, special, punitive or consequential) arising out of or in connection with this Agreement, regardless of whether such damages are based on tort, warranty, contract or any other legal theory.

23.2 Custodian’s liability under this Agreement for damages (monetary or otherwise) under any circumstances for claims of any type or character arising out of or in connection with this Agreement will be limited in each instance to the amount of direct losses incurred by the Client.

24. Notices

Except as otherwise provided in this Agreement, all requests, demands or other communications between the Parties or notices provided in connection herewith, including but not limited to Instructions, shall be issued in accordance with the Handbook; provided, that, any delivery of the Handbook or Fee Supplement (or any amendment or replacement of either of them), or any notice of an amendment to this Agreement, may in each case be made by email, electronic notice or posting to the Client’s account page on Hex Safe or otherwise in accordance with the Handbook.

25. Severability

Each of the provisions of this Agreement are severable and distinct from the others and, if any provision of this Agreement or of a clause hereof is determined to be illegal invalid or unenforceable by any court of law or by any other competent authority, the remaining provisions within that clause and the remainder of this Agreement shall be severable and enforceable in accordance with their terms so long as this Agreement without such terms or provisions does not fail of its essential purpose. The Parties shall negotiate in good faith to replace any such illegal or unenforceable provisions with suitable substitute provisions which will maintain, as far as possible, the purposes and the effect of this Agreement.

26. Entire Agreement

This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and supersedes all prior oral communications and other written agreements between them.

27. Rights of Third Parties

Except as expressly provided for in this Agreement, any person or entity who is not a party to this Agreement shall have no rights to enforce any term of this Agreement.

28. Novation and assignment

28.1 Neither this Agreement nor any of the rights, interests or obligations hereunder shall be novated by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Parties

28.2 The Client shall not assign the whole or any part of its rights and obligations under this Agreement or any benefit or interest therein, without the prior written consent of the Custodian.

29. Non Disparagement

Neither Party shall disparage the other Party, its products or services, or take any action which could reasonably be expected to adversely affect the other Party’s reputation or business.

30. Contracting entity

You are contracting with the entity specified in your Fee Supplement, being:

30.1 HEX TRUST LIMITED, a company incorporated in Hong Kong, having its registered office at 28/F, 308 Central Des Voeux, 308 Des Voeux Road Central, Sheung Wan, Hong Kong (if you have onboarded for custodial services through our Hong Kong office);

30.2 HEX TRUST MENA FZE, a company incorporated in Dubai, having its registered office at Office Office 426, Level 4, Convention Tower, DWTC, Dubai, United Arab Emirates (if you have onboarded for custodial services through our Dubai office); or

30.3 HEX TRUST ITALIA S.R.L., a company incorporated under the laws of Italy and having its registered office at No. 74 Corso Magenta, Milan, Italy (if you have onboarded for custodial services through our Italian office).

31. Hong Kong

If you are contracting with Hex Trust Limited, the following provisions apply:

Governing law

31.1 This Agreement and any Instructions given hereunder shall be governed by and construed in accordance with the laws of Hong Kong.

Jurisdiction

31.2 The Parties irrevocably agree that any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the Arbitration Rules of the HKIAC in force at the time of the notice of arbitration provided that, if the Applicable Laws so required, the Parties have previously taken all the necessary measures for reaching an amicable settlement of the dispute, in accordance with the Applicable Laws provisions. The seat of the arbitration shall be Hong Kong. The arbitral tribunal shall consist of one (1) arbitrator, of whom one shall be agreed by the Parties, and if the Parties fail to reach an agreement within 30 days (or such longer period as agreed by the Parties) after the first potential nominee arbitrator is proposed, the arbitrator shall be appointed by HKIAC. The language of the arbitration shall be English.

31.3 Each Party further irrevocably waives any objection which it may have or be entitled to claim at any time to the commencement of any such suit, action or proceeding before such courts, or that any such suit, action or proceeding has been brought in an inconvenient forum, or to the enforcement of any judgment in respect thereof over any of its assets or property (including without limitation, the Virtual Assets) in any jurisdiction.

Defined terms

31.4 In this Agreement:

“Business Day” means any day of the week on which commercial banks are open for business in Hong Kong (not being a Saturday, Sunday or public holiday in Hong Kong); and

“Personal Data” means any data relating directly or indirectly to a living individual from which it is practicable for the identity of the individual to be directly or indirectly ascertained, and in a form in which access to or process of the data by the Custodian is practicable.

32. Dubai

If you are contracting with Hex Trust MENA FZE, the following provisions apply:

Governing law

32.1 This Agreement, any Instructions given hereunder and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, any such Instructions or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

Jurisdiction

32.2 The Parties irrevocably agree that any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the Arbitration Rules of the HKIAC in force at the time of the notice of arbitration provided that, if the Applicable Laws so required, the Parties have previously taken all the necessary measures for reaching an amicable settlement of the dispute, in accordance with the Applicable Laws provisions. The seat of the arbitration shall be Hong Kong. The arbitral tribunal shall consist of one (1) arbitrator, of whom one shall be agreed by the Parties, and if the Parties fail to reach an agreement within 30 days (or such longer period as agreed by the Parties) after the first potential nominee arbitrator is proposed, the arbitrator shall be appointed by HKIAC. The language of the arbitration shall be English.

32.3 Each Party further irrevocably waives any objection which it may have or be entitled to claim at any time to the commencement of any such suit, action or proceeding before such courts, or that any such suit, action or proceeding has been brought in an inconvenient forum, or to the enforcement of any judgment in respect thereof over any of its assets or property (including without limitation, the Virtual Assets) in any jurisdiction.

Defined terms

32.4 In this Agreement:

“Applicable Laws” include, for the avoidance of doubt, legislations regarding anti-money laundering crimes and combating the financing of terrorism and financing of illegal organisations in the UAE and VARA’s requirements;

“Authority” includes, for the avoidance of doubt, VARA;

“Business Day” means any day of the week on which commercial banks are open for business in Dubai (not being a Saturday, Sunday or public holiday in Dubai);

“Dubai” means the Emirate of Dubai in the UAE;

“Personal Data” means data, whether true or not, about an individual who can be identified from that data or from that data and other information to which the Custodian has or is likely to have access which is treated in accordance with applicable local personal data protection law;

“UAE” means the United Arab Emirates; and

“VARA” means the Virtual Assets Regulatory Authority in Dubai.

Amendments

32.5 Notwithstanding anything to the contrary in Clause 1.6, the Custodian shall provide notice to you of any amendment to or modification of this Agreement at least thirty (30) days before the effectiveness of such amendment or modification. Your continued use of the services contemplated by this Agreement following the expiry of such thirty-day period will mean that you accept and agree to such changes.

Agents

32.6 If the Custodian decides to appoint any agents or sub custodian in accordance with Clause 3.4, the Custodian shall provide written notice to the Client regarding the details of the appointment (such as the identification of the appointed agents or sub-custodians and description of the services they perform). The written notice shall form an integral part of this Agreement.

Reporting and information

32.7 The Custodian shall deliver the reports and other information contemplated in Clause 8 on a monthly basis or such longer period as the Parties may agree.

Data Breach

32.8 Without limiting Clause 15.3, in the event of any Data Breach, the Custodian shall, as soon as practicable report such Data Breach and the results of the relative investigations to the competent Authority that shall be in charge for the reporting at the time of the Data Breach, in accordance with Applicable Laws relating to data protection and privacy.

33. Italy

If you are contracting with HEX TRUST ITALIA S.R.L., the following provisions apply:

Governing law

33.1 This Agreement, any Instructions given hereunder and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, any such Instructions or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

Jurisdiction

33.2 The Parties irrevocably agree that any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (“LCIA”) in accordance with the Arbitration Rules of the LCIA in force at the time of the notice of arbitration, which Arbitration Rules are deemed to be incorporated by reference into this clause provided that, if the Applicable Laws so required, the Parties have previously taken all the necessary measures for reaching an amicable settlement of the dispute, in accordance with the Applicable Laws provisions. The seat and venue of the arbitration shall be London. The number of arbitrators shall be one (1), the appointment of whom shall be agreed by the Parties, and if the Parties fail to reach an agreement within 30 days (or such longer period as agreed by the Parties), the arbitrator shall be appointed by LCIA. The language of the arbitration shall be English.

33.3 Each Party further irrevocably waives any objection which it may have or be entitled to claim at any time to the commencement of any such suit, action or proceeding before such courts, or that any such suit, action or proceeding has been brought in an inconvenient forum, or to the enforcement of any judgment in respect thereof over any of its assets or property (including without limitation, the Virtual Assets) in any jurisdiction.

Defined terms

33.4 In this Agreement:

“Business Day” means any day of the week on which commercial banks are open for business in Milan, Italy (not being a Saturday, Sunday or public holiday in Milan, Italy); and

“Personal Data” means data, whether true or not, about an individual who can be identified from that data or from that data and other information to which the Custodian has or is likely to have access which is treated in accordance with Data Protection Act 2018 and the EU General Data Protection Regulation (“GDPR”) as amended and revised from time to time.

33.5 Without limiting Clause 15.2, the Client further represents and warrants that to the extent Client Personal Data includes any personally identifiable information or data, the Client has received the required consents or permits and has acted in compliance with applicable data protection laws, privacy laws and regulations (including, but not limited to, the GDPR), as to allow the Custodian to receive (including transfers outside of the European Economic Area), Process and use Client Personal Data solely in order to perform the services hereunder. The Client shall have sole responsibility for the reliability, integrity, accuracy and quality of Client Personal Data.

SCHEDULE A

RISK FACTORS AND DISCLOSURE STATEMENT AND ACKNOWLEDGEMENT

The intention of this Risk Factors and Disclosure Statement and Acknowledgement is to inform the Client of certain risks and to make certain disclosures. The Client should consult its own legal, tax, financial and other advisors as to such risks and disclosures and entering into transactions contemplated by this Agreement generally.

Blockchain Risk

Any part or all of the cryptocurrencies subject to custody under this Agreement may be exposed or subject to the risk of expropriation and/or theft. hackers or other malicious individuals, groups or organizations may launch attacks to the transactions, storage processes or other intended uses of such cryptocurrencies in various forms, including, but not limited to, malware attacks, distributed denial of service attacks, consensus-based attacks, routing attacks, transaction malleability attacks, Sybil attacks, Eclipse attacks, double-spend attacks, majority mining power attacks, selfish-mining attacks, time jacking, smurfing and spoofing. Furthermore, any such cryptocurrencies and their creation, development or production thereof may be based on any software, programs, source codes, object codes, algorithms, scripts, protocols, schematics, applications, data, software libraries, databases and/or any other computational language, code, programming or source in any structure or form containing intentional or unintentional or inherent syntax or logic errors, defects or vulnerabilities. The occurrence of any of the above circumstances may hinder, interrupt, disrupt or result in the delay or failure in the operation or performance of any transactions, storage processes or other intended uses of such cryptocurrencies pursuant to this Agreement or result in the loss of any part or all of such cryptocurrencies or of the Client’s ability to access or control any or part of such cryptocurrencies. The Client is not guaranteed any damages, remedy, refund or compensation in respect of any Loss incurred by the Client, whether direct, indirect or incidental, resulting from any such occurrence and there may be no remedies available to the Client as a result.

As cryptocurrencies are based on blockchain technology, any malfunction, breakdown or abandonment of the relevant blockchain may have a material adverse effect on such cryptocurrencies. Moreover, advances in cryptography, or technical advances in general could present risks to cryptocurrencies by rendering the cryptographic consensus mechanism underpinning the relevant blockchain on which the particular cryptocurrency is built ineffective. The future of cryptography and security innovations are highly unpredictable, and this may have an adverse impact on the value of cryptocurrencies.

It is also possible that alternative networks or platforms could be established in an attempt to facilitate services that are similar to those offered by any of the protocols of a particular cryptocurrency, or alternative networks could be established that utilize the same or similar software, programs, source codes, object codes, algorithms, scripts, protocols, schematics, applications and/or any other computational language, code, programming or source in any structure or form underlying the cryptocurrencies. In such event, such alternative networks may be able to copy, replicate, change, enhance, reproduce, re-engineer, modify, reprogram or otherwise develop the same software, programs, source codes, object codes, algorithms, scripts, protocols, schematics, applications and/or any other computational language, code, programming or source in any structure or form underlying the cryptocurrencies. Such alternative networks or platforms may compete with a particular cryptocurrency, which could adversely impact any value or perceived value of the particular cryptocurrency.

The software, programs, source codes, object codes, algorithms, scripts, protocols, schematics, applications, data, software libraries, databases and/or any other computational language, code, programming or source in any structure or form on which cryptocurrencies are built may be open-sourced, such that any member of the public may at any time develop a patch or upgrade without prior permission of any individual party. The acceptance of patches or upgrades by a significant percentage of the blockchain’s users could result in a “fork” in the blockchain. The temporary or permanent existence of forked blockchains could adversely impact the operation of the blockchain or undermine the sustainability of the cryptocurrencies ecosystem, and may destroy or frustrate the ecosystem. While a forked blockchain could possibly be rectified by community-led efforts remerging the two separated blockchain branches, there is no guarantee of success and could take an undetermined amount of time to achieve. The above may have an adverse impact on any value or perceived value of the cryptocurrencies.

The loss or destruction of a private key required to access blockchain assets may be irreversible. Loss of access to private keys or any other data loss concerning a particular cryptocurrency could have a material adverse effect on the Client. Cryptocurrencies are controllable only by those who know the unique private cryptographic key relating to the network address at which the cryptocurrencies are held. To the extent a private key is lost, destroyed or otherwise compromised and no backup of the private key is accessible, the Client may not be able to access the relevant cryptocurrencies associated with the corresponding address and the private key will not be capable of being restored by the network. Any loss of private keys relating to digital wallets used to store the cryptocurrencies may result in the loss of any part or all of such cryptocurrencies or of the Client’s ability to access or control any or part of such cryptocurrencies.

Regulatory Risk

The regulatory status of cryptocurrencies and distributed ledger technology is unclear or unsettled in many jurisdictions. Numerous regulatory authorities across different jurisdictions have been outspoken about considering the implementation of regulatory regimes which govern cryptocurrencies and cryptocurrencies markets in general. It is difficult to predict how or whether regulatory authorities may apply existing regulations to such technology and its applications, including the cryptocurrencies. It is likewise difficult to predict how or whether legislatures or regulatory authorities may implement and enforce changes to the laws and regulations affecting distributed ledger technology and its applications, including the cryptocurrencies. Regulatory and enforcement actions could negatively impact cryptocurrencies in various ways, including, that the use or possession of cryptocurrencies require registration or licensing. Any such possible regulatory developments may be unfavorable to the value or perceived value of cryptocurrencies.

The Client is responsible for determining whether any product or service under this Agreement is legal in its jurisdiction and shall not purchase or use such product or service if such purchase or use conflicts with any Applicable Law. The Client is urged to seek independent legal and financial advice in this regard.

Custody Risk

Virtual Assets may be stored using third party service providers using technologies which may not be regulated or conforming to any internationally recognised standards or governing bodies. Although utmost highest care and diligence is taken, risks of security breaches, hacks and related attacks may occur. Furthermore, Virtual Assets and Wallets shall not be subject to any form of deposit protection scheme or mechanism.

Staking Infrastructure providers

We and/or our affiliates and related entities may enter into arrangements with certain Staking Infrastructure providers to receive rebates, commissions or other payments in respect of Virtual Assets Staked to their nodes, oracles or other Staking Infrastructure.

Acknowledgement

The Client understands and agrees that the brief Risk Factors and Disclosure Statement and Acknowledgement above cannot disclose all the risks and other significant aspects contemplated under this Agreement and the Client should therefore carefully study these risks and aspects before executing this Agreement.

In particular, the Client understands and acknowledges that:

1. the Client has read and understood the nature and contents of the risks and disclosures which are contained in this Risk Factors and Disclosure Statement and Acknowledgement;
2. the Client is acting on its own account, and the Client has made its own independent decision and upon advice from such advisers as the Client have deemed necessary to enter into this Agreement;
3. the Client confirms that neither the Custodian, nor any of its affiliates, is acting as a fiduciary for or an adviser to the Client in respect of any transaction;
4. the Client is not relying on any communication (written or oral) from the Custodian or from any of its affiliates as investment advice or as a recommendation to enter into any transaction and the Client understands that the information and explanations of the terms of any transaction as contained in any confirmation shall not be considered to be investment advice or a recommendation to enter into such transaction; and
5. If the Custodian makes any suggestions, it assumes no responsibility for the Client’s portfolio or for any investment or transaction which the Client has entered into.

No communication (written or oral) received from the Custodian or from any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of any transaction. This Risk Factors and Disclosure Statement and Acknowledgement is subject to the Agreement as amended or supplemented from time to time. This Risk Factors and Disclosure Statement and Acknowledgement, together with the Agreement and other Schedules shall form a single agreement between the Client and the Custodian.