BitGo Custody MENA

BITGO CUSTODIAL SERVICES AGREEMENT 

This Custodial Services Agreement (this “Agreement”) governs your use of the Services (as defined below) provided or made available by Custodian to you and your organization (together, “Client”). 

Definitions:

(a)  “Agreement” means this Custodial Agreement, as it may be amended from time to time, and includes all schedules and exhibits to this Custodial Agreement, as they may be amended from time to time.

(b) “Applicable Law” means any and all relevant or applicable statute, rule, regulation, regulatory guideline, order, law, ordinance or code; the common law and laws of equity; any binding court order, judgment or decree; any applicable industry code, rule, guideline, policy or standard enforceable by law (including as a result of participation in a self-regulatory organization), and any official interpretations of any of the foregoing.

(c)  “Authorized Persons” means any person authorized by the Client to give Instructions to the Custodian or perform other operations through the Company Site on behalf of the Client (i.e. viewer, admin, enterprise owner, viewer with additional video rights, etc.).

(d)          “Custodian” means BitGo Custody MENA FZE, a free zone establishment, registered with the Dubai World Trade Centre (registration number L-3298) with its registered offices at Unit 108, The Offices 4, One Central, Dubai World Trade Centre.  The Custodian is regulated by the Dubai Virtual Assets Regulatory Authority to carry out Virtual Asset-related activities, including custody services, in or from the Emirate of Dubai, including its free zones, but excluding the Dubai International Financial Centre. An overview and description of the BitGo group can be found at https://www.bitgo.com/company/about-bitgo/.

(e) “Virtual Assets” means virtual assets, currencies, virtual currencies, tokens, coins, or  securities held for Client under the terms of this Agreement.

(f)  “Fiat Currency” means certain fiat currencies, such as U.S. Dollars.

1. SERVICES. 

   1. Custodian. 

Client authorizes, approves, and directs Custodian to establish and maintain one or more custody accounts on its books (each a “Custodial Account”), pursuant to the terms of this Agreement, for the receipt, safekeeping, and maintenance of supported Virtual Assets, as well as Fiat Currency (“Custodial Services”). The Custodian is hereby authorised to appoint third party providers (listed in Schedule B of this Agreement) as its delegates and to perform any of the duties of the Custodian under this Agreement. Such third party providers are those persons utilised by the Custodian for the safe-keeping of Digital Assets. The Custodian shall act in good faith and use reasonable care in the selection and continued appointment of the third party providers, and shall remain responsible for the acts and/or omissions of the third party providers. The private keys associated with the Virtual Assets will be stored in devices, which may be located in a foreign jurisdiction. The laws and practices in the foreign jurisdiction may be different from the laws and practices in Dubai World Trade Centre, and any such differences may affect the ability of the customer to recover the customer’s assets. For instance, there may be a prolonged delay in the recovery process.

1. Wallet Software and Non-Custodial Wallet Service. 

(A) Custodian also provides Client with the option to create non-custodial wallets that support certain Virtual Assets via an API and web interface (“Wallet Services”).  Wallet Services are provided by BitGo, Inc, an affiliate of Custodian (“BitGo Inc.”). Wallet Services provide access to wallets where BitGo Inc. holds a minority of the keys, and Client is responsible for holding a majority of the keys (“Client Keys”). 

(B) The Wallet Services do not send or receive money or virtual assets.  The Wallet Services enable Client to interface with virtual currency networks to view and transmit information about a public cryptographic key commonly referred to as a blockchain address.  As further set forth in Section 3.5, Client assumes all responsibility and liability for securing the Client Keys. Further, Client assumes all responsibility and liability for creation, storage, and maintenance of any backup keys associated with accounts created using the Wallet Services.

(C) Client’s use of the Wallet Services is subject to the terms and conditions set forth at https://www.bitgo.com/terms (the “Wallet Terms”), as they may be amended from time to time.  In the event of a conflict between the Wallet Terms and the terms of this Agreement, the terms of this Agreement shall control. 

1. Third-Party Payments.  

The Custodial Services are not intended to facilitate third-party payments of any kind, which shall include the use of both Fiat Currency or Virtual Assets. As such, Custodian has no control over, or liability for, the delivery, quality, safety, legality or any other aspect of any goods or services that Client may purchase or sell to or from a third party (including other users of Custodial Services) involving Virtual Assets that Client intends to store, or have stored, in Client’s Custodial Account.

1. API Access. 

(A) Most Services are provided through https://www.bitgo.com/ or any associated websites or application programming interfaces (“APIs”) (collectively, the “Company Site”). Client may elect to utilize the APIs either directly or indirectly within an independently developed application (“Developer Application”). 

 

(B) All API-based Services are subject to usage limits and the terms and conditions set forth at https://www.bitgo.com/legal/services-agreement (the "API Terms"), as they may be amended from time to time.  In the event of a conflict between the API Terms and the terms of this Agreement, the terms of this Agreement shall control. If Client exceeds a usage limit, Custodian may provide assistance to seek to reduce Client usage so that it conforms to that limit. If Client is unable or unwilling to abide by the usage limits, Client will order additional quantities of the applicable Services promptly upon request or pay Custodian’s invoices for excess usage. 

1. Fees.  

The fees associated with the Services shall be calculated, invoiced and paid in accordance with Schedule A (“Fee Schedule”). Custodian reserves the right to revise its Fee Schedule at any time following the Initial Term, provided that Custodian will provide Client with at least thirty (30) days’ advance notice of any such revision.  Within such 30-day period, Client may terminate this Agreement in accordance with Section 5.4 and discontinue the Services hereunder at no additional charge to Client. 

1. Acknowledgement of Risks.

(A) General Risks; No Investment, Tax, or Legal Advice; No Brokerage. CLIENT ACKNOWLEDGES THAT CUSTODIAN DOES NOT PROVIDE INVESTMENT, TAX, OR LEGAL ADVICE, NOR DOES CUSTODIAN BROKER TRANSACTIONS ON CLIENT’S BEHALF. CLIENT ACKNOWLEDGES THAT CUSTODIAN HAS NOT PROVIDED AND WILL NOT PROVIDE ANY ADVICE, GUIDANCE OR RECOMMENDATIONS TO CLIENT WITH REGARD TO THE SUITABILITY OR VALUE OF ANY VIRTUAL ASSETS, AND THAT CUSTODIAN HAS NO LIABILITY REGARDING ANY SELECTION OF A VIRTUAL ASSET THAT IS HELD BY CLIENT THROUGH CLIENT’S CUSTODIAL ACCOUNT AND THE CUSTODIAL SERVICES OR THE WALLET SERVICES. ALL DEPOSIT AND WITHDRAWAL TRANSACTIONS ARE EXECUTED BASED ON CLIENT’S INSTRUCTIONS, AND CLIENT IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY INVESTMENT, INVESTMENT STRATEGY, OR RELATED TRANSACTION INVOLVING VIRTUAL ASSETS IS APPROPRIATE FOR CLIENT BASED ON CLIENT’S INVESTMENT OBJECTIVES, FINANCIAL CIRCUMSTANCES, AND RISK TOLERANCE. CLIENT SHOULD SEEK LEGAL AND PROFESSIONAL TAX ADVICE REGARDING ANY TRANSACTION. 

(B) Material Risk in Investing in Virtual Currencies. CLIENT ACKNOWLEDGES THAT:

(1) VIRTUAL ASSETS IS NOT LEGAL TENDER, IS NOT BACKED BY THE GOVERNMENT, AND ACCOUNTS AND VALUE BALANCES ARE NOT SUBJECT TO FEDERAL DEPOSIT INSURANCE CORPORATION OR SECURITIES INVESTOR PROTECTION CORPORATION PROTECTIONS;

(2) LEGISLATIVE AND REGULATORY CHANGES OR ACTIONS AT THE STATE, FEDERAL, OR INTERNATIONAL LEVEL MAY ADVERSELY AFFECT THE USE, TRANSFER, EXCHANGE, AND VALUE OF VIRTUAL ASSETS;

(3) SOME VIRTUAL ASSET TRANSACTIONS SHALL BE DEEMED TO BE MADE WHEN RECORDED ON A PUBLIC LEDGER, WHICH IS NOT NECESSARILY THE DATE OR TIME THAT THE CLIENT INITIATES THE TRANSACTION;

(4) THERE IS NO ASSURANCE THAT A PERSON WHO ACCEPTS A VIRTUAL ASSET AS PAYMENT TODAY WILL CONTINUE TO DO SO IN THE FUTURE;

(5) THE NATURE OF VIRTUAL ASSET MAY LEAD TO AN INCREASED RISK OF FRAUD OR CYBER ATTACK;

(6) THE NATURE OF VIRTUAL ASSET MEANS THAT ANY TECHNOLOGICAL DIFFICULTIES EXPERIENCED BY THE CUSTODIAN MAY PREVENT THE ACCESS OR USE OF A CLIENT’S VIRTUAL ASSET; AND

(7) ANY BOND OR TRUST ACCOUNT MAINTAINED BY THE CUSTODIAN FOR THE BENEFIT OF ITS CLIENTS MAY NOT BE SUFFICIENT TO COVER ALL LOSSES INCURRED BY CLIENT.

(C) Risk of loss. CLIENT ACKNOWLEDGES THAT:

1. INVESTING IN VIRTUAL CURRENCY CARRIES A HIGH LEVEL OF RISK AND, AS SUCH, MAY NOT BE SUITABLE FOR ALL INVESTORS. A CLIENT SHOULD NOT TRANSACT IN VIRTUAL CURRENCY IF THEY ARE SEEKING A REGULAR OR LOW RISK RETURN ON THEIR INVESTED CAPITAL. UNLIKE TRADITIONAL INVESTMENT PRODUCTS, VIRTUAL CURRENCY DO NOT GENERALLY HAVE ANY UNDERLYING OR INTRINSIC ASSET VALUE OR ANY ASSETS SUPPORTING THEIR PRICE.

2. TRANSACTIONS IN VIRTUAL CURRENCY MAY BE IRREVERSIBLE, AND, ACCORDINGLY, LOSSES DUE TO FRAUDULENT OR ACCIDENTAL TRANSACTIONS THROUGH THE USE OF THE CUSTODIAL SERVICES MAY NOT BE RECOVERABLE;

3. THE VALUE OF VIRTUAL CURRENCY MAY BE DERIVED FROM THE CONTINUED WILLINGNESS OF MARKET PARTICIPANTS TO EXCHANGE FIAT CURRENCY FOR VIRTUAL CURRENCY, WHICH MAY RESULT IN THE POTENTIAL FOR PERMANENT AND TOTAL LOSS OF VALUE OF A PARTICULAR VIRTUAL CURRENCY SHOULD THE MARKET FOR THAT VIRTUAL CURRENCY DISAPPEAR;

4. THE VOLATILITY AND UNPREDICTABILITY OF THE PRICE OF VIRTUAL CURRENCY RELATIVE TO FIAT CURRENCY MAY RESULT IN SIGNIFICANT LOSS OVER A SHORT PERIOD OF TIME;

5. A CLIENT UNDERSTANDS THAT IT SHOULD BE ABLE TO BEAR THE RISK OF POTENTIAL LOSSES UP TO AND EVEN BEYOND THE FULL AMOUNT OF THEIR INVESTED CAPITAL AND CLIENTS SHOULD ONLY ENGAGE THE CUSTODIAL SERVICES IN RESPECT OF THE VIRTUAL CURRENCY THAT THEY CAN AFFORD TO LOSE.

6. WHILE CUSTODIAN HAS MADE EVERY EFFORT TO ENSURE CONTINUITY AND SECURITY OF THE CUSTODIAL SERVICES, CUSTODIAN IS UNABLE TO COMPLETELY FORESEE AND HEDGE LEGAL, TECHNOLOGICAL AND OTHER RISKS INCLUDING BUT NOT LIMITED TO FORCE MAJEURE, VIRUS, HACKER ATTACK, SYSTEM INSTABILITY, FLAWS IN THIRD-PARTY SERVICES, ACTS OF GOVERNMENT, OR GOVERNMENT AGENCY ETC. THAT MAY RESULT IN SERVICE INTERRUPTION, DATA LOSS AND OTHER LOSSES AND RISKS.

7. BEFORE OPENING A CUSTODIAL ACCOUNT, A CLIENT IS DEEMED TO HAVE EVALUATED AND CONFIRMED THAT THEY UNDERSTAND THE RISKS INVOLVED.

8. SUBJECT TO SECTION 11.3 BELOW, IF A CLIENT SUFFERS FROM ANY ACTUAL LOSSES FROM THE USE OF THE CUSTODIAL SERVICES AS A RESULT OF CUSTODIAN’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, CUSTODIAN WILL REMAIN LIABLE TO CLIENT. TO SAFEGUARD CLIENT’S VIRTUAL ASSETS, CUSTODIAN HAS IN PLACE ROBUST VERIFICATION PROCEDURE AND SECURITY MEASURES DESIGNED TO SAFEGUARD CUSTODIAN’S ELECTRONIC SYSTEMS. PLEASE SEE SECTIONS 2.5B AND 9.3 BELOW FOR FURTHER DETAILS ON CUSTODIAN’S VERIFICATION PROCEDURES AND SECURITY MEASURES.

(D) CLIENT ACKNOWLEDGES THAT USING VIRTUAL ASSETS AND ANY RELATED NETWORKS AND PROTOCOLS, INVOLVES SERIOUS RISKS. CLIENT AGREES THAT IT HAS READ AND ACCEPTS THE RISKS LISTED IN THIS SECTION 1.7, WHICH IS NON-EXHAUSTIVE AND WHICH MAY NOT CAPTURE ALL RISKS ASSOCIATED WITH CLIENT’S ACTIVITY. IT IS CLIENT’S DUTY TO LEARN ABOUT ALL THE RISKS INVOLVED WITH VIRTUAL ASSETS AND ANY RELATED PROTOCOLS AND NETWORKS. CUSTODIAN MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE VALUE OF DIGITAL ASSETS OR THE SECURITY OR PERFORMANCE OF ANY RELATED NETWORK OR PROTOCOL. 

1. CUSTODIAL ACCOUNT. 

2. Registration; Authorized Persons 

3. To use the Custodial Services, Client must create a Custodial Account by providing Custodian with all information requested. Custodian may, in its sole discretion, refuse to allow Client to establish a Custodial Account,  limit the number of Custodial Accounts, and/or decide to subsequently terminate a Custodial Account. 

4. Client will maintain an updated and current list of Authorized Persons at all times on the Company Site and will immediately notify Custodian of any changes to the list of Authorized Persons by updating the list on the Company Site, including for termination of employment, or otherwise. Client shall make available all necessary documentation and identification information, as reasonably requested by Custodian to confirm: (i) the identity of each Authorized Person; (ii) that each Authorized Person is eligible to be deemed an “Authorized Person” as defined in this Agreement; and (iii) the party(ies) requesting the changes in the list of Authorized Persons have valid authority to request changes on behalf of Client. 

5. General. 

The Custodial Services allow Client to deposit supported Virtual Assets from a public blockchain address to Client’s Account, and to withdraw supported Virtual Assets from Client’s Custodial Account to a public blockchain address, in each case, pursuant to Instructions Client provides through the Company Site (each such transaction is a “Custody Transaction”). The Virtual Assets stored in Client’s Custodial Account will not be commingled with other Virtual Assets without express action taken by Client and will be held in custody pursuant to the terms of this Agreement. Custodian reserves the right to refuse to process or to cancel any pending Custody Transaction: as required by Applicable Law; to enforce transaction, threshold, and condition limits; or if Custodian reasonably believes that the Custody Transaction may violate or facilitate the violation of any Applicable Law, regulation or rule of a governmental authority or self-regulatory organization. Custodian cannot reverse a Custody Transaction which has been broadcast to a Virtual Asset network.  

2.3. Instructions.

(a) Custodian acts upon instructions ("Instructions") given by Authorized Persons that are received and verified by Custodian in accordance with its procedures and this Agreement.

(b) Instructions will be required for any action requested of the Custodian. Instructions shall continue in full force and effect until canceled (if possible) or executed.

(c) The Custodian shall be entitled to rely upon any Instructions it receives from an Authorized Person (or from a person reasonably believed by the Custodian to be an Authorized Person) pursuant to this Agreement. 

(d) The Custodian may assume that any Instructions received hereunder are not in any way inconsistent with the provisions of organizational documents of the Client or of any vote, resolution, or proper authorization and that the Client is authorized to take the actions specified in the Instructions.

(e) Client must verify all transaction information prior to submitting Instructions to the Custodian. The Custodian shall have no duty to inquire into or investigate the validity, accuracy or content of any Instructions.

(f) If any Instructions are ambiguous, incomplete, or conflicting, Custodian may refuse to execute such Instructions until any ambiguity, incompleteness, or conflict has been resolved. Custodian may refuse to execute Instructions if, in its sole opinion, such Instructions are outside the scope of its duties under this Agreement or are contrary to any Applicable Law. 

(g) Client is responsible for Losses (as defined below) resulting from inaccurate Instructions (e.g., if Client provides the wrong destination address for executing a withdrawal transaction). Custodian does not guarantee the identity of any user, receiver, requestee, or other party to a Custody Transaction. Custodian shall have no liability whatsoever for failure to perform pursuant to such Instructions except in the case of Custodian’s gross negligence, fraud, or willful misconduct.

2.4. Virtual Asset Deposits and Withdrawals.  

(a) Prior to initiating a deposit of Virtual Assets to Custodian, Client must confirm that Custodian offers Custodial Services for that specific Virtual Asset. The list of supported Virtual Assets is currently available at: https://www.bitgo.com/resources/coins. The foregoing list or foregoing URL may be updated or changed from time to time in Custodian's sole discretion. By initiating a deposit of Virtual Assets to a Custodial Account, Client attests that Client has confirmed that the Virtual Asset being transferred is supported by Custodian. (b) Client must initiate any withdrawal request through Client’s Custodial Account to a Client wallet address. Custodian will process withdrawal requests for amounts under USD 250,000, either in a single transaction or aggregated in a series of transactions, during a rolling 24 hour period without video verification, to a Client-whitelisted address which has been previously used to which Client has made a withdraw to at least once. The time of such a request shall be considered the time of transmission of such notice from Client’s Custodial Account. Custodian reserves the right to request video verification for any transaction or series of transactions under the threshold of USD 250,000. Custodian will require video verification for withdrawal requests greater than USD 250,000 or requests made to a new address, either in a single transaction or aggregated in a series of transactions, during a rolling 24 hour period; provided, Custodian can require video calls for amounts less than USD 250,000 if it deems necessary for security, compliance, or any other purposes in its sole discretion. The initiation of the 24 hour time period to process the withdrawal request shall be considered at the time at which client completes video verification.

(c) As further set forth in Section 3.5, Client must manage and keep secure any and all information or devices associated with deposit and withdrawal procedures, including YubiKeys and passphrases or other security or confirmation information. Custodian reserves the right to charge or pass through network fees (e.g. miner fees or validator fees) to process a Virtual Asset transaction on Client’s behalf. Custodian will notify Client of the estimated network fee at or before the time Client authorizes the transaction. 

2.5. Virtual Asset Access Time.  

(A) Custodian requires up to 24 hours (excluding weekends and US federal holidays) between any request to withdraw Virtual Assets from Client’s Custodial Account and submission of Client’s withdrawal to the applicable Virtual Asset network. 

(B) Custodian reserves the right to take additional time beyond the 24 hour period if such time is required to verify security processes for large or suspicious transactions. Any such processes will be executed reasonably and in accordance with Custodian documented protocols, which may change from time to time at the sole discretion of Custodian. 

(C) Custodian makes no representations or warranties with respect to the availability and/or accessibility of the Virtual Assets. Custodian will make reasonable efforts to ensure that Client initiated deposits are processed in a timely manner, but Custodian makes no representations or warranties regarding the amount of time needed to complete processing of deposits which is dependent upon factors outside of Custodian’s control.

2.6. Supported Virtual Assets. 

The Custodial Services are available only in connection with those Virtual Assets that Custodian supports (list currently available at https://www.bitgo.com/resources/coins). The Virtual Assets that Custodian supports may change from time to time in Custodian’s discretion. Custodian assumes no obligation or liability whatsoever regarding any unsupported Virtual Asset sent or attempted to be sent to it, or regarding any attempt to use the Custodial Services for Virtual Assets that Custodian does not support. Custodian may, from time to time, determine types of Virtual Assets that will be supported or cease to be supported by the Custodial Services. Custodian will use commercially reasonable efforts to provide Client with thirty (30) days’ prior written notice before ceasing to support a Virtual Asset, unless Custodian is required to cease such support sooner to comply with Applicable Law or in the event such support creates an urgent security or operational risk in Custodian’s reasonable discretion (in which event Custodian will provide as much notice as is practicable under the circumstances). Under no circumstances should Client attempt to use the Custodial Services to deposit or store any Virtual Assets that are not supported by Custodian. Depositing or attempting to deposit Virtual Assets that are not supported by Custodian will result in such Virtual Asset being unretrievable by Client and Custodian.

2.7. Advanced Protocols.  

Unless specifically announced on the Custodian or Company website, Custodian does not support airdrops, side chains, or other derivative, enhanced, or forked protocols, tokens, or coins which supplement or interact with a Virtual Asset supported by Custodian (collectively, “Advanced Protocols”). Client shall not use its Custodial Account to attempt to receive, request, send, store, or engage in any other type of transaction involving an Advanced Protocol. Custodian assumes absolutely no responsibility whatsoever in respect to Advanced Protocols. 

2.8. Operation of Virtual Asset Protocols.  

1. Custodian does not own or control the underlying software protocols which govern the operation of Virtual Assets supported on the Custodian platform. By using the Custodial Services, Client acknowledges and agrees that (i) Custodian is not responsible for operation of the underlying protocols and that Custodian makes no guarantee of their functionality, security, or availability; and (ii) the underlying protocols are subject to sudden changes in operating rules (a.k.a. “forks”), and (iii) that such forks may materially affect the value, function, and/or even the name of the Virtual Assets that Client stores in Client’s Custodial Account. In the event of a fork, Client agrees that Custodian may temporarily suspend Custodian operations with respect to the affected Virtual Assets (with or without advance notice to Client) and that Custodian may, in its sole discretion, decide whether or not to support (or cease supporting) either branch of the forked protocol entirely. Client acknowledges and agrees that Custodian assumes absolutely no liability whatsoever in respect of an unsupported branch of a forked protocol or its determination whether or not to support a forked protocol. 

 

1. Client agrees that all “airdrops” (free distributions of certain Virtual Assets) and forks will be handled by Custodian pursuant to its fork policy (the “Fork Policy”) (currently available at www.bitgo.com/resources/bitgo-fork-policy). Client acknowledges that Custodian is under no obligation to support any airdrops or forks, or handle them in any manner, except as detailed above and in the Fork Policy. Client further acknowledges that Custodian, at its sole discretion, may update the Fork Policy from time to time and/or the URL at which it is available and Client agrees that Client is responsible for reviewing any such updates. Client is under no obligation to provide notification to Client of any modification to the Fork Policy.   

2.9. Account Statements.  

(A) Custodian will provide Client with an electronic account statement every calendar quarter. Each statement will be provided via the Custodian’s website and notice of its posting will be sent via electronic mail.

(B) The Client will have forty-five (45) days to file any written objections or exceptions with the Custodian after the posting of a Custodial Account statement online. If the Client does not file any objections or exceptions within a forty-five (45) day period, this shall indicate the Client’s approval of the statement and will preclude the Client from making future objections or exceptions regarding the information contained in the statement. Such approval by the Client shall be full acquittal and discharge of Custodian regarding the transactions and information on such statement.

 

(C) To value Virtual Assets held in the Client’s account, the Custodian will electronically obtain USD equivalent prices from virtual asset market data with amounts rounded up to the seventh decimal place to the right. Custodian cannot guarantee the accuracy or timeliness of prices received and the prices are not to be relied upon for any investment decisions for the Client’s account. 

2.10. Independent Verification. 

If Client is subject to Rule 206(4)-2 under the Investment Advisers Act of 1940, Custodian shall, upon written request, provide Client’s authorized independent public accountant confirmation of, or access to, information sufficient to confirm (i) Client’s Virtual Assets as of the date of an examination conducted pursuant to Rule 206(4)-2(a)(4), and (ii) Client’s Virtual Assets are held either in a separate account under Client’s name or in accounts under Client’s name as agent or trustee for Client’s clients. 

2.11. Support and Service Level Agreement. 

Custodian will use commercially reasonable efforts: (i) to provide reasonable technical support to Client, by email or telephone, during Custodian’s normal business hours; (ii) to respond to support requests in a timely manner; (iii) resolve such issues by providing updates and/or workarounds to Client (to the extent reasonably possible and practical), consistent with the severity level of the issues identified in such requests and their impact on Client’s business operations; (iv) abide by the terms of the Service Level Agreement currently made available at https://www.bitgo.com/resources/bitgo-service-level-agreement (as Service Level Agreement or the URL at which it is made available may be amended from time to time); and (vii) to make Custodial Accounts available via the internet 24 hours a day, 7 days a week.

2.12. Clearing and Settlement Services. 

1. Custodian may  offer clearing and settlement services (the “Settlement Services”) that facilitate the settlement of transactions of Virtual Assets or Fiat Currency between Client and Client’s trade counterparty that also has a Custodial Account with Custodian (“Settlement Partner”). Client acknowledges that the Settlement Service is an API  product complemented by a Web user interface (UI). Clients may utilize the Settlement Services by way of settlement of one-sided requests with counterparty affirmation or one-sided requests with instant settlement; and two-sided requests with reconciliation. Client understands that the Virtual Assets available for use within the Settlement Services may not include all of Client’s Virtual Assets under custody.  For the avoidance of doubt, use of the API product is subject to the terms and conditions set forth in Section 1.4 of this Agreement. 

2. The Settlement Services allow Client to submit, through the Custodian’s settlement platform, a request to settle a purchase or sale of Virtual Assets with a Settlement Partner. Client authorizes Custodian to accept Client’s cryptographic signature submitted by way of the Settlement Services API. When a cryptographic signature is received by way of the Settlement Services along with the settlement transaction details, Client is authorizing Custodian to act on Client’s direction to settle such transaction. 

3. A one-sided request with counterparty affirmation requires Client to submit a request, including its own cryptographic signature on the trade details, via API calls. Custodian will notify the Settlement Partner and lock funds of both parties while waiting for the Settlement Partner to affirm the request. Custodian will settle the trade immediately upon affirmation and the locked  funds will be released.    

4. A one-sided request with instant settlement requires one side of the trade to submit a request, including cryptographic signatures of both parties to the trade, via API calls. Custodian will settle the trade immediately. 

5. A two-sided request with reconciliation requires that both Client and Settlement Partner submit requests via API calls, with each party providing their own cryptographic signatures. Custodian will reconcile the trades and settle immediately upon successful reconciliation.   

6. In any one-sided or two sided request, the Settlement Partner  must be identified and selected by Client prior to submitting a settlement request.  

7. Client may submit a balance inquiry through the settlement platform, to verify that Settlement Partner has a sufficient balance of Virtual Asset to be transacted before the Parties execute a transaction.  This balance inquiry function is to be utilized only for the purpose of executing a trade transaction to ensure the Settlement Partner has sufficient fiat currency (funds)  or Virtual Assets to settle the transaction.  Client hereby expressly authorizes and consents to Custodian providing access to such information to Client’s Settlement Partner in order to facilitate the settlement.  

8. Client and Settlement Partner’s Custodial Accounts must have sufficient funds or Virtual Assets prior to initiating any settlement request. The full amount of assets required to fulfill a transaction are locked until such order has been completed. All orders are binding on Client and Client’s Custodial Account. Custodian does not guarantee that any settlement will be completed by any Settlement Partner.  Client may not be able to withdraw an offer (or withdraw its acceptance of an offer) prior to completion of a settlement and Custodian shall not be liable for the completion of any order after a cancellation request has been submitted.  

9. Client acknowledges and accepts responsibility for ensuring only an appropriate Authorized Person of its Custodial Account has access to the API key(s).  

10. Client further understands and agrees that Client is solely responsible for any decision to enter into a settlement by way of the Settlement Services, including the evaluation of any and all risks related to any such transaction and has not relied on any statement or other representation of Custodian. Client understands that Custodian is a facilitator and not a counterparty to any settlement; and, as a facilitator, Custodian bears no liability with respect to any transaction and does not assume any clearing risk. 

11. Any notifications that Client may receive regarding the Settlement Services are Client’s responsibility to review in a timely manner.  

12. Upon execution of the settlement, the Settlement Services shall provide Client, by electronic means, a summary of the terms of the transaction, including: the type of Virtual Asset purchased or sold; the delivery time; and the purchase or sale price. Settlement of a transaction is completed in an off-chain trading account by way of offsetting journal transactions within Custodian’s Virtual Asset Off-chain Settlement System. On-chain synchronization occurs at the time the withdrawal from Client’s trading account takes place (other than through a subsequent Settlement Services transaction).

13. Custodian reserves the right to refuse to settle any transaction, or any portion of any transaction, for any reason, at its sole discretion. Custodian bears no responsibility if any such order was placed or active during any time the Settlement Services system is unavailable or encounters an error; or, if any such order triggers certain regulatory controls.  

14. Client understands and agrees that Custodian may charge additional fees for the Settlement Services furnished to Client as indicated in the Fee Schedule attached as Schedule A and any amendments to Schedule A.  

15. Clearing and settlement transactions shall be subject to all Applicable Law. 

3. USE OF SERVICES. 

3.1. Company Site and Content.  

Custodian hereby grants Client a limited, nonexclusive, non transferable, revocable, royalty-free license, subject to the terms of this Agreement, to access and use the Company Site and related content, materials, information (collectively, the “Content”) solely for using the Services in accordance with this Agreement. Any other use of the Company Site or Content is expressly prohibited and all other right, title, and interest in the Company Site or Content is exclusively the property of Custodian and its licensors. Client shall not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part. “www.bitgo.com,” “BitGo,” “BitGo Custody,” and all logos related to the Custodial Services or displayed on the Company Site are either trademarks or registered marks of Custodian or its licensors. Client may not copy, imitate or use them without Custodian’s prior written consent in each instance. 

3.2. Website Accuracy.  

Although Custodian intends to provide accurate and timely information on the Company Site, the Company Site (including, without limitation, the Content, but excluding any portions thereof that are specifically referenced in this Agreement) may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. In an effort to continue to provide Client with as complete and accurate information as possible, such information may be changed or updated from time to time without notice, including without limitation information regarding Custodian policies, products and services. Accordingly, Client should verify all information before relying on it, and all decisions based on information contained on the Company Site are Client’s sole responsibility and Custodian shall have no liability for such decisions. Links to third-party materials (including without limitation websites) may be provided as a convenience but are not controlled by Custodian. Custodian is not responsible for any aspect of the information, content, or services contained in any third-party materials or on any third-party sites accessible from or linked to the Company Site. 

3.3. Third-Party or Non-Permissioned Users.  

Client acknowledges that granting permission to a third party or non-permissioned user to take specific actions on Client’s behalf does not relieve Client of any of Client’s responsibilities under this Agreement and may violate the terms of this Agreement. Client is fully responsible for all activities taken on Client’s Custodial Account (including, without limitation, acts or omissions of any third party or non-permissioned user with access to Client's Custodial Account). Further, Client acknowledges and agrees that Client will not hold Custodian responsible for, and will indemnify, defend and hold harmless the Custodian Indemnitees (as defined below) from and against any Losses arising out of or related to any act or omission of any party using Client’s Custodial Account (including, without limitation, acts or omissions of any third party or non-permissioned user with access to Client's Custodial Account). Client must notify Custodian immediately if a third party or non-permissioned user accesses or connects to Client’s Custodial Account by contacting Client’s Custodial Account representative or by emailing security@bitgo.com from the email address associated with Client’s Custodial Account. 

3.4. Prohibited Use.  

Client acknowledges and agrees that Custodian may monitor use of the Services and the resulting information may be utilized, reviewed, retained and or disclosed by Custodian in aggregated and non-identifiable forms for its legitimate business purposes or in accordance with Applicable Law. Client will not use the Services, directly or indirectly via the Developer Application, to: (i) upload, store or transmit any content that is infringing, libelous, unlawful, tortious, violate privacy rights, or that includes any viruses, software routines or other code designed to permit unauthorized access, disable, erase, or otherwise harm software, hardware, or data; (ii) engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the Services, servers, networks, data, or other properties of Custodian or of its suppliers or licensors; (iii) develop, distribute, or make available the Developer Application in any way in furtherance of criminal, fraudulent, or other unlawful activity; (iv) make the Services available to, or use any Services for the benefit of, anyone other than Client or end users of the Developer Application; (v) sell, resell, license, sublicense, distribute, rent or lease any Services, or include any Services in a Services bureau or outsourcing offering; (vi) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit; (vii) obscure, remove, or destroy any copyright notices, proprietary markings or confidential legends; (viii) to build a competitive product or service; (ix) distribute the Developer Application in source code form in a manner that would disclose the source code of the Services; or (x) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the human readable form of the Services, to the extent such restriction is permitted by applicable law. Client will comply with the restrictions set forth in Appendix 1.

3.5. Security; Client Responsibilities.  

1. Client is responsible for maintaining adequate security and control of any and all Client Keys, IDs, passwords, hints, personal identification numbers , non-custodial wallet keys, API keys, yubikeys, 2-factor authentication devices or backups, or any other codes that Client uses to access the Services. Any loss or compromise of the foregoing information and/or Client’s personal information may result in unauthorized access to Client’s Custodial Account by third parties and the loss or theft of Virtual Assets or Fiat Currency. Client is responsible for keeping Client’s email address and telephone number up to date in Client’s profile in order to receive any notices or alerts that Custodian may send Client. Custodian assumes no responsibility for any loss that Client may sustain due to compromise of login credentials due to no fault of Custodian and/or failure to follow or act on any notices or alerts that Custodian may send to Client. In the event Client believes Client’s Custodial Account information has been compromised, Client will contact Custodian Support immediately at security@bitgo.com. 

 

1. Client will ensure that all Authorized Persons will be adequately trained to safely and securely access the Services, including understanding of general security principles regarding passwords and physical security of computers, keys, and personnel. 

 

1. Client will immediately notify Custodian of any unauthorized access, use or disclosure of Client’s Account credentials, or any relevant breach or suspected breach of security (including breach of Client’s systems, networks or developer applications). Client will provide Custodian with all relevant information Custodian reasonably requests to assess the security of the assets, Custodial Accounts and wallets. 

3.6. Taxes. 

Client is solely responsible for any taxes applicable to any deposits or withdrawals Client conducts through the Custodial Services, and for withholding, collecting, reporting, and/or remitting the correct amount of taxes to the appropriate tax authorities. Client’s deposit and withdrawal history is available by accessing Client’s Custodial Account through the Company Site or by contacting Custodian directly. 

3.7. Third Party Providers.  

Client acknowledges and agrees that the Services may be provided from time to time by, through or with the assistance of affiliates of or vendors to Custodian, including BitGo Inc. as described above     . Custodian shall remain liable for its obligations under this Agreement in the event of any breach of this Agreement caused by such affiliates or any vendor. 

3.8. Developer Applications. 

1. Subject to Custodian’s acceptance of Client as a developer, and subject to Client’s performance of its obligations under this Agreement, Custodian grants Client a nonassignable, non-transferrable, revocable, personal and non-exclusive license under Custodian’s applicable intellectual property rights to use and reproduce the Custodian software development kit for Developer Applications.

 

1. Client agrees that all end users of any Developer Application will be subject to the same use restrictions that bind Client under this Agreement (including under Section 3.4 (Prohibited Use) and Appendix 1). 

 

1. Client is solely responsible and has sole liability for Client’s end users that access or  use the Services via the Developer Application and all acts or omissions taken by such end users will be deemed to have been taken (or not taken) by Client. Client is responsible for the accuracy, quality and legality of Developer Application content and user data. Client will comply with, and ensure that Client’s Developer Application and end users comply with all Applicable Law. 

2. CUSTODIAN OBLIGATIONS. 

4.1. Insurance. 

Custodian will obtain and/or maintain insurance coverage in such types and amounts as are commercially reasonable for the Custodial Services provided hereunder.  Client acknowledges that any insurance related to theft of Virtual Assets will apply to Custodial Services only (where keys are held by Custodian) and not Wallet Services for non-custodial accounts (where keys are held by Client). 

4.2. Standard of Care. 

 Custodian will use commercially reasonable efforts in performing its obligations under this Agreement. Subject to the terms of this Agreement, Custodian shall not be responsible for any loss or damage suffered by Client as a result of the Custodian performing such duties unless the same results from an act of gross negligence, fraud, or willful misconduct on the part of the Custodian. Custodian shall not be responsible for the title, validity or genuineness of any of the Virtual Assets or Fiat Currency (or any evidence of title thereto) received or delivered by it pursuant to this Agreement. 

4.3. Business Continuity Plan. 

Custodian has established a business continuity plan that will support its ability to conduct business in the event of a significant business disruption (“SBD”). This plan is reviewed and updated annually, and can be updated more frequently, if deemed necessary by Custodian in its sole discretion. Should Custodian be impacted by an SBD, Custodian aims to minimize business interruption as quickly and efficiently as possible. To receive more information about Custodian’s business continuity plan, please send a written request to security@bitgo.com. 

5. TERM; TERMINATION. 

5.1. Initial Term; Renewal Term.  

This Agreement will commence on the Effective Date and will continue for one (1) year, unless earlier terminated in accordance with the terms of this Agreement (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for successive one-year periods (each a “Renewal Term”), unless either party notifies the other of its intention not to renew at least sixty (60) days prior to the expiration of the then-current Term.  “Term” means the Initial Term and any Renewal Term. 

5.2. Termination for Breach.

  

Either party may terminate this Agreement if the other party breaches a material term of this Agreement and fails to cure such breach within thirty (30) calendar days following written notice thereof from the other party.  

5.3. Suspension, Termination, or Cancellation by Custodian.  

(A) Custodian may suspend or restrict Client’s access to the Custodial Services and/or deactivate, terminate or cancel Client’s Custodial Account if:

(i) Custodian is so required by a facially valid subpoena, court order, or binding order of a government authority; 

(ii) Custodian reasonably suspects Client of using Client’s Custodial Account in connection with a Prohibited Use or Prohibited Business, as set forth in Appendix 1 to this Agreement; 

(iii) Custodian perceives a risk of legal or regulatory non-compliance associated with Client’s Custodial Account activity or the provision of the Custodial Account to Client by Custodian (including but not limited to any risk perceived by Custodian in the review of any materials, documents, information, statements or related materials provided by Client after execution of this Agreement); 

(iv) Custodian service partners are unable to support Client’s use; 

(v) Client takes any action that Custodian deems as circumventing Custodian’s controls, including, but not limited to, opening multiple Custodial Accounts, abusing promotions which Custodian may offer from time to time, or otherwise misrepresenting of any information set forth in Client’s Custodial Account;  

(vi) Client fails to pay fees for a period of 90 days; or

(vii) Client fails to fund its Custodial Account to the “Minimum Account Balance” as indicated in the Fee Schedule within one hundred and eighty (180) days of Custodial Account opening. 

(B) If Custodian suspends or restricts Client’s access to the Custodial Services and/or deactivates, terminates or cancels Client’s Custodial Account for any reason, Custodian will provide Client with notice of Custodian’s actions via email unless prohibited by Applicable Law. Client acknowledges that Custodian’s decision to take certain actions, including limiting access to, suspending, or closing Client’s Custodial Account, may be based on confidential criteria that are essential to Custodian’s compliance, risk management, or and security protocols. Client agrees that Custodian is under no obligation to disclose the details of any of its internal risk management and security procedures to Client. 

(C) If Custodian terminates Client's Custodial Account, this Agreement will automatically terminate on the later of (i) the effective date of such cancellation or (ii) the date on which all of Client’s funds are withdrawn. 

5.4 Effect of Termination

On termination of this Agreement, (A) Client will shall withdraw Virtual Assets and Fiat Currency associated with Client’s Custodial Account within ninety (90) days after Custodial Account termination or cancellation unless such withdrawal is prohibited by Applicable Law (including but not limited to applicable sanctions programs or a facially valid subpoena, court order, or binding order of a government authority); (B) Client will pay all fees owed or accrued to Custodian through the date of Client’s withdrawal of funds, which may include any applicable withdrawal fee; (C) Client authorizes Custodian to cancel or suspend any pending deposits or withdrawals as of the effective date of termination; and (D) the definitions set forth in this Agreement and Sections 1.6, 1.7, 5.4, 6, 8, 9.1, 10, 11, and 12 will survive.

5.5 Termination for Convenience

Client may terminate this Agreement for convenience only if: (a) Client provides Custodian at least ninety (90) days written notice of Client’s intent to exercise its termination right under this Section, and (b) Client pays a one-time early termination fee equal to the highest monthly fees due, excluding any Onboarding Fee, for any month of Services before such termination multiplied by the number of months remaining in the term (including partial months), multiplied by 0.5 (the “Early Termination Fee”). Such termination for convenience will not be deemed effective unless and until BitGo receives such Early Termination Fee, which Client understands and acknowledges will not be deemed a penalty but a figure reasonably calculated to reflect discounts given by Custodian in return for Client’s term commitment. Client may not cancel the subscription of Services before the expiration of their current term, except as specified herein.

6. DISPUTE RESOLUTION. 

THE PARTIES AGREE THAT ALL CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES (“DISPUTES”), WHETHER ARISING PRIOR, ON, OR SUBSEQUENT TO THE EFFECTIVE DATE, SHALL BE ARBITRATED AS FOLLOWS: The Parties irrevocably agree to submit all Disputes between them to binding arbitration conducted by the Dubai International Arbitration Centre ("DIAC") under the DIAC Arbitration Rules.  The place and location of the arbitration shall be in Dubai International Finance Center. All arbitration proceedings shall be closed to the public and confidential and all related records shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The arbitration shall be conducted before a single arbitrator selected jointly by the parties. The arbitrator shall be a retired judge with experience in custodial and trust matters under the laws of the Dubai  International Finance Center.  If the parties are unable to agree upon an arbitrator, then the DIAC shall choose the arbitrator.  The language to be used in the arbitral proceedings shall be English. The arbitrator shall be bound to the strict interpretation and observation of the terms of this Agreement and shall be specifically empowered to grant injunctions and/or specific performance and to allocate between the parties the costs of arbitration, as well as reasonable attorneys’ fees and costs, in such equitable manner as the arbitrator may determine.  Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations.  Notwithstanding the foregoing, either party shall have the right, without waiving any right or remedy available to such party under this Agreement or otherwise, to seek and obtain from any court of competent jurisdiction any interim or provisional relief that is necessary or desirable to protect the rights or property of such party, pending the selection of the arbitrator hereunder or pending the arbitrator’s determination of any dispute, controversy or claim hereunder. 

7. REPRESENTATIONS, WARRANTIES, AND COVENANTS. 

7.1. By Client. 

Client represents, warrants, and covenants to Custodian that:  

 

1. Client operates in full compliance with all Applicable Law in each jurisdiction in which Client operates, including without limitation applicable securities and commodities laws and regulations, efforts to fight the funding of terrorism and money laundering, sanctions regimes, licensing requirements, and all related regulations and requirements.  

 

1. To the extent Client creates receive addresses to receive Virtual Assets from third-parties, Client represents and warrants that the receipt of said Virtual Assets is based on lawful activity. 

 

1. Client shall have conducted and satisfied any and all due diligence procedures required by Applicable Law with respect to such third parties prior to placing with Custodian any Virtual Assets or Fiat Currency associated with such third party. 

 

1. Client will not use any Services for any illegal activity, including without limitation illegal gambling, money laundering, fraud, blackmail, extortion, ransoming data, the financing of terrorism, other violent activities or any prohibited market practices, including without limitation the prohibited activities and business set forth in Appendix 1. 

 

1. Client is currently and will remain at all times in good standing with all relevant government agencies, departments, regulatory or supervisory bodies in all relevant jurisdictions in which Client does business and Client will immediately notify Custodian if Client ceases to be in good standing with any applicable regulatory authority; 

  

1. Client will promptly provide such information as Custodian may reasonably request from time to time regarding: (i) Client’s policies, procedures, and activities which relate to the Custodial Services in any manner, as determined by Custodian in its sole and absolute discretion; and (ii) any transaction which involves the use of the Services, to the extent reasonably necessary to comply with Applicable Law, or the guidance or direction of, or request from any regulatory authority or financial institution, provided that such information may be redacted to remove confidential commercial information not relevant to the requirements of this Agreement;  

  

1. Client either owns or possesses lawful authorization to transact with all Virtual Assets involved in the Custody Transactions; 

 

1. Client has the full capacity and authority to enter into and be bound by this Agreement and the person executing or otherwise accepting this Agreement for Client has full legal capacity and authorization to do so;  

  

1. All information provided by Client to Custodian in the course of negotiating this Agreement and the on-boarding of Client as Custodian’s customer and user of the Custodial Services is complete, true, and accurate in all material respects, including with respect to the ownership of Client, no material information has been excluded; and no other person or entity has an ownership interest in Client except for those disclosed in connection with such onboarding; and 

 

1. Client is not owned in part or in whole, nor controlled by any person or entity that is, nor is it conducting any activities on behalf of, any person or entity that is (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, or any other Governmental Authority with jurisdiction over Custodian or its affiliates; (ii) identified on the Denied Persons, Entity, or Unverified Lists of the U.S. Department of Commerce’s Bureau of Industry and Security; or (iii) located, organized or resident in a country or territory that is, or whose government is, the subject of U.S. or UN economic sanctions, including, without limitation, the Crimean, Donetsk, and Luhansk regions of Ukraine, Cuba, Iran, North Korea, or Syria.

7.2. By Custodian.  

Custodian represents, warrants, and covenants to Client that: 

 

1. Custodian will safekeep the Virtual Assets and segregate all Virtual Assets from both the (i) property of Custodian, and (ii) assets of other customers of Custodian, except for Virtual Assets specifically moved into shared accounts by Client; 

 

1. Custodian will maintain adequate capital and reserves to the extent required by Applicable Law; 

 

1. Custodian is duly organized, validly existing and in good standing under the laws of Dubai World Trade Centre Authority, has all corporate powers required to carry on its business as now conducted, and is duly qualified to do business in each jurisdiction where such qualification is necessary; 

 

1. Custodian has the full capacity and authority to enter into and be bound by this Agreement and the person executing or otherwise accepting this Agreement for Custodian has full legal capacity and authorization to do so. 

7.3. Notification. 

Without limitation of either party’s rights or remedies, each party shall immediately notify the other party if, at any time after the Effective Date, any of the representations, warranties, or covenants made by it under this Agreement fail to be true and correct as if made at and as of such time. Such notice shall describe in reasonable detail the representation, warranty, or covenant affected, the circumstances giving rise to such failure and the steps the notifying party has taken or proposes to take to rectify such failure. 

 

8. DISCLAIMER. 

 

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTODIAN SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. CUSTODIAN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE COMPANY SITE, ANY PART OF THE SERVICES, OR ANY OF THE MATERIALS CONTAINED IN ANY OF THE FOREGOING WILL BE CONTINUOUS, UNINTERRUPTED, OR TIMELY; BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES; OR BE SECURE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. 

8.1. Computer Viruses. 

Custodian shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect Client’s computer or other equipment, or any phishing, spoofing or other attack, unless such damage or interruption directly resulted from Custodian’s gross negligence, fraud, or willful misconduct. Custodian advises the regular use of a reputable and readily available virus screening and prevention software. Client should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Custodian. Client should always log into Client’s Custodial Account through the Company Site to review any deposits or withdrawals or required actions if Client has any uncertainty regarding the authenticity of any communication or notice. 

9. CONFIDENTIALITY, PRIVACY, DATA SECURITY. 

9.1. Confidentiality.  

(A) As used in this Agreement, “Confidential Information” means any non-public, confidential or proprietary information of a party (“Discloser”) including, without limitation information relating to Discloser’s business operations or business relationships, financial information, pricing information, business plans, customer lists, data, records, reports, trade secrets, software, formulas, inventions, techniques, and strategies.  A party receiving Confidential Information of Discloser (“Recipient”) will not disclose it to any unrelated third party without the prior written consent of the Discloser, except as provided in subsection (B) below and has policies and procedures reasonably designed to create information barriers with respect to such party’s officers, directors, agents, employees, affiliates, consultants, contractors and professional advisors. Recipient will protect such Confidential Information from unauthorized access, use and disclosure. Recipient shall not use Discloser’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement. The obligations herein shall not apply to any (i) information that is or becomes generally publicly available through no  fault of Recipient, (ii) information that Recipient obtains from a third party (other than in connection with this Agreement) that, to recipient's best knowledge, is not bound by a confidentiality agreement prohibiting such disclosure; or (iii) information that is independently developed or acquired by Recipient without the use of or reference to Confidential Information of Discloser. 

 

(B) Notwithstanding the foregoing, Recipient may disclose Confidential Information of Discloser to the extent required under Applicable Law; provided, however, Recipient shall first notify Discloser (to the extent legally permissible) and shall afford Discloser a reasonable opportunity to seek a protective order or other confidential treatment. For the purposes of this Agreement, no affiliate of Custodian shall be considered a third party and Custodian may share Client’s Confidential Information with affiliates, as authorized by Client; provided that Custodian causes such entity to undertake the obligations in this Section 9.1.  

 

(C) Confidential Information includes all documents and other tangible objects containing or representing Confidential Information and all copies or extracts thereof or notes derived therefrom that are in the possession or control of Recipient and all of the foregoing shall be and remain the property of the Discloser.  Confidential Information shall include the existence and the terms of this Agreement.  At Discloser’s request or on termination of this Agreement (whichever is earlier), Recipient shall return or destroy all Confidential Information; provided, however, Recipient may retain one copy of Confidential Information (i) if required by law or regulation, or (ii) pursuant to a bona fide and consistently applied document retention policy; provided, further, that in either case, any Confidential Information so retained shall remain subject to the confidentiality obligations of this Agreement.  For the avoidance of doubt, aggregated Depersonalized Information (as hereinafter defined) shall not be Confidential Information. “Depersonalized Information'' means data provided by or on behalf of Client in connection with the Custodial Services and all information that is derived from such data, that has had names and other personal information removed such that it is not reasonably linkable to any person, company, or device.  

9.2. Privacy.  

Client acknowledges that Client has read the BitGo Privacy Notice, available at https://www.bitgo.com/privacy. 

9.3. Security.  

Custodian has implemented and will maintain a reasonable information security program that includes policies and procedures that are reasonably designed to safeguard Custodian’s electronic systems and Client’s Confidential Information from, among other things, unauthorized disclosure, access, or misuse, including, by Custodian and its affiliates. In the event of a data security incident Custodian will provide all notices required under Applicable Law.

10. INDEMNIFICATION. 

10.1. Indemnities. 

(A) Client will indemnify and hold harmless Custodian, its affiliates and service providers, and each of its or their respective officers, directors, agents, employees, and representatives (collectively the “Custodian Indemnitees”) from and against any liabilities, damages, losses, costs and expenses, including but not limited to attorneys' fees and costs and any fines, fees or penalties (including, without limitation, any of the foregoing imposed by any regulatory authority) (collectively, “Losses”), arising out of or incurred in connection with, and defend each of them from and against any third-party claim, demand, action or proceeding (a “Claim”) arising out of or related to (i) Client’s use of the Services; (ii) Client’s breach of this Agreement, (iii) any breach or inaccuracy of any of Client’s representations, warranties or covenants in this Agreement; (iv) Client’s failure to provide true and accurate information in connection with the onboarding process or any failure to promptly update such information, (v) Client’s violation of any Applicable Law, or the rights of any third party, or (vi) any Dispute between Client and a third party; except where such Claim directly results from the gross negligence, fraud or willful misconduct of Custodian. 

 

(B) In addition, in connection with any Developer Application, Client will indemnify and hold harmless the Custodian Indemnitees from and against any Losses arising out of any Claim arising out of or related to (i) Client’s content, Developer Application, trademarks, logos or marks infringing any third party intellectual property rights; (ii) Client’s development, marketing, operation, use, licensing, support or distribution of Client’s Developer Application; (iii) a dispute between Client and any end user; (iv) a security breach of involving a Developer Application or Client’s computers, or systems; or (v) the unauthorized use, access or disclosure of confidential or personal information, private keys, or authentication credentials held by Client or Client’s computers or systems. 

10.2. Indemnification Process. 

(A) Custodian will (i) provide Client with prompt notice of any indemnifiable Claim under Section 10.1 (provided that the failure to provide prompt notice shall only relieve Client of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Client to assume and control the defense of such action upon Client’s written notice to Custodian of Client’s intention to indemnify, with counsel acceptable to Custodian in its reasonable discretion; and (iii) upon Client’s written request, and at no expense to Custodian, provide to Client all available information and assistance reasonably necessary for Client to defend such Claim.  Custodian shall be permitted to participate in the defense and settlement of any Claim with counsel of Custodian’s choice at Custodian’s expense (unless such retention is necessary because of Client’s failure to assume the defense of such Claim, in which event Client shall be responsible for all such fees and costs).  Client will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any liability to any Custodian Indemnitee or constitute any admission of or stipulation to any guilt, fault or wrongdoing, without Custodian’s prior written consent. 

 

(B) Client acknowledges and agrees that any Losses imposed on Custodian (whether in the form of fines, penalties, or otherwise) as a result of a violation by Client of any Applicable Law, may at Custodian’s discretion, be passed on to Client and Client acknowledges and represents that Client will be responsible for payment to Custodian of all such Losses. 

11. LIMITATIONS OF LIABILITY.

11.1. NO CONSEQUENTIAL DAMAGES.   

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE EXCEPTIONS PROVIDED IN SECTION 11.3 BELOW, IN NO EVENT SHALL CUSTODIAN, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED OR UNAUTHORIZED USE OF THE COMPANY SITE OR THE SERVICES, OR THIS AGREEMENT, EVEN IF CUSTODIAN HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 

11.2. LIMITATION ON DIRECT DAMAGES. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE EXCEPTIONS PROVIDED IN SECTION 11.3 BELOW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTODIAN, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES, EXCEED THE FEES PAID OR PAYABLE TO CUSTODIAN UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO SUCH LIABILITY. 

11.3  EXCEPTIONS TO EXCLUSIONS AND LIMITATIONS OF LIABILITY. 

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN SECTION 11.1 AND SECTION 11.2 WILL NOT APPLY TO CUSTODIAN’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE. CUSTODIAN’S LIABILITY FOR GROSS NEGLIGENCE SHALL BE LIMITED TO THE VALUE OF THE AFFECTED DIGITAL ASSETS OR FIAT CURRENCY.

 

12. MISCELLANEOUS.

12.1. Notice / Communication. 

(i) All notices under this Agreement shall be given in writing, in the English language, and shall be deemed given when personally delivered, when sent by email, or three days after being sent by prepaid certified mail or internationally recognized overnight courier to the addresses set forth in the signature blocks below (or such other address as may be specified by party following written notice given in accordance with this Section).  

(ii) To file complaint(s) on Custodian’s Services, please contact Custodian’s customer service at support@bitgo.com before providing notice to Custodian on such complaint(s) in accordance with Section 12.1(i) above.

 

12.2. Publicity.  

 

Client hereby consents to Custodian's identification of Client as a customer of the Services, including in marketing and/or investor materials, and Custodian hereby consents to Client’s use of Custodian’s name and/or approved logos or promotional materials to identify Custodian as its custodial service provider as contemplated by this Agreement. Notwithstanding the foregoing, Custodian may revoke its consent to such publicity under this Section at any time for any reason, and upon notice, Client will cease any further use of Custodian’s name, logos, and trademarks and remove all references and/or postings identifying Custodian as soon as possible.

12.3. Entire Agreement. 

This Agreement, any appendices or attachments to this Agreement, the BitGo Privacy Policy, and all disclosures, notices or policies available on the BitGo website that are specifically referenced in this Agreement, comprise the entire understanding and agreement between Client and Custodian as to the Custodial Services, and supersedes any and all prior discussions, agreements, and understandings of any kind (including without limitation any prior versions of this Agreement) and every nature between and among Client and Custodian with respect to the subject matter hereof. Section headings in this Agreement are for convenience only and shall not govern the meaning or interpretation of any provision of this Agreement. 

12.4. No Waiver. 

The waiver by a party of any breach or default will not constitute a waiver of any different or subsequent breach or default. 

12.5. Amendments.  

(i) Any modification or addition to this Agreement must be in writing signed by a duly authorized representative of each of the parties. Client agrees that Custodian shall not be liable to Client or any third party for any modification or termination of the Custodial Services, or suspension or termination of Client’s access to the Custodial Services, except to the extent otherwise expressly set forth herein. 

(ii) Notwithstanding anything to the contrary in this Agreement, any modification, addition or revision to this Agreement, including all schedules, exhibits and addendums shall only be effective with respect thirty (30) days after the date of such posting or email, or such other time (including an earlier date) that is designated in such communication.  

12.6. Assignment.  

Client may not assign any rights and/or licenses granted under this Agreement without the prior written consent of Custodian. Custodian may not assign any of its rights without the prior written consent of Client; except that Custodian may assign this Agreement without the prior consent of Client to any Custodian affiliates or subsidiaries or pursuant to a transfer of all or substantially all of Custodian’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors, and permitted assigns. 

12.7. Severability. 

If any provision of this Agreement shall be determined to be invalid or unenforceable,  such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of this Agreement shall not be affected. 

12.8. Survival.  

All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, sections pertaining to suspension or termination, Custodial Account cancellation, debts owed to Custodian, general use of the Company Site, disputes with Custodian, indemnification, and general provisions, shall survive the termination or expiration of this Agreement. 

12.9. Governing Law.  

The laws of the Dubai International Financial Centre, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between Client and Custodian. 

12.10. Force Majeure.  

Custodian shall not be liable for delays, suspension of operations, whether temporary or permanent, failure in performance, or interruption of service which result directly or indirectly from any cause or condition beyond the reasonable control of Custodian, including but not limited to, any delay or failure due to any act of God, natural disasters, act of civil or military authorities, act of terrorists, including but not limited to cyber-related terrorist acts, hacking, government restrictions, exchange or market rulings, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which are beyond the reasonable control of Custodian. 

12.11. Relationship of the Parties.  

Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, Client and Custodian to be treated as partners, joint ventures, or otherwise as joint associates for profit, or either Client or Custodian to be treated as the agent of the other.   

APPENDIX 1: PROHIBITED USE, PROHIBITED BUSINESSES AND CONDITIONAL USE 

1.1. Prohibited Use.

Client may not use Client’s Custodial Account to engage in the following categories of activity (“Prohibited Uses”). The Prohibited Uses extend to any third party that gains access to the Custodial Services through Client’s account or otherwise, regardless of whether such third party was authorized or unauthorized by Client to use the Custodial Services associated with the Custodial Account. The specific types of use listed below are representative, but not exhaustive. If Client is uncertain as to whether or not Client’s use of Custodial Services involves a Prohibited Use, or have questions about how these requirements applies to Client, please contact Custodian at trustonboarding@bitgo.com. 

By opening a Custodial Account, Client confirms that Client will not use Client’s Custodial Account to do any of the following: 

• Unlawful Activity: Activity which would violate, or assist in violation of any law, statute, ordinance, or regulation, sanctions programs administered in the countries where Custodian conducts business, including, but not limited to, the United Nations Security Council Sanctions List and the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity; publish, distribute or disseminate any unlawful material or information. 

• Abusive Activity: Actions which impose an unreasonable or disproportionately large load on Custodian’s infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to the Site that contains viruses, Trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to the Site, other Custodial Accounts, computer systems or networks connected to the Site, through password mining or any other means; use Custodial Account information of another party to access or use the Site; or transfer Client’s Custodial Account access or rights to Client’s Custodial Account to a third party, unless by operation of law or with the express permission of Custodian. 

• Abuse Other Users: Interfere with another Custodian user’s access to or use of any Custodial Services; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information from the Site about others, including, without limitation, email addresses, without proper consent. 

• Fraud: Activity which operates to defraud Custodian, Custodian users, or any other person; provide any false, inaccurate, or misleading information to Custodian. 

• Gambling: Lotteries; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; Internet gaming; contests; sweepstakes; games of chance. 

• Intellectual Property Infringement: Engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including but not limited to sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of Custodian intellectual property, name, or logo, including use of Custodian trade or service marks, without express consent from Custodian or in a manner that otherwise harms Custodian, or Custodian’s brand; any action that implies an untrue endorsement by or affiliation with Custodian. 

• Written Policies: Client may not use the Custodial Account or the Custodial Services in a manner that violates, or is otherwise inconsistent with, any operating instructions promulgated by Custodian.  

1.2. Prohibited Businesses.

The following categories of businesses, business practices, and sale items are barred from the Custodial Services (“Prohibited Businesses”). The specific types of use listed below are representative, but not exhaustive. If Client is uncertain as to whether or not Client’s use of the Custodial Services involves a Prohibited Business or has questions about how these requirements apply to Client, please contact us at trustonboarding@bitgo.com. 

By opening a Custodial Account, Client confirms that Client will not use the Custodial Services in connection with any of the following businesses, activities, practices, or items:

• Individuals convicted of an offense related to drug trafficking, financial crimes, arms trafficking, human smuggling, or human trafficking

• Individuals or entities that own or operate virtual currency mixers or wallets with built-in mixers.

• Shell banks (a shell bank is a financial institution that does not have a physical presence in any country, unless it is controlled by, or is under common control with, a depository institution, credit union, or another foreign financial institution that maintains a physical presence either in the U.S. or a foreign country).

• Anonymous and fictitiously named accounts

• Companies that issue bearer shares.

• Business involved in the sale of narcotics or controlled substances.

• Any individual or entity designated under any trade, economic, or financial sanctions laws, regulations, embargoes, or restrictive measures imposed, administered, or enforced by the U.S. or the United Nations, including Specially Designated Nationals (“SDNs”) and Blocked Persons.

• Any unlicensed/unregulated banks, remittance agents, exchanges houses, casa de cambio, bureaux de change or money transfer agents.

• Any foreign banks operating with a banking license issued by a foreign country that has been designated as non-cooperative with international AML principles or procedures by FATF; or a banking license issued by a foreign country that has been designated by the Secretary of the Treasury as warranting special measures due to money laundering concerns.

SCHEDULE A: FEE SCHEDULE 

 This Schedule A forms part of the Custodial Services Agreement by and between Client and Custodian (the “Agreement”) and is effective as of the date the Agreement is acknowledged by Client. The parties hereto agree that the fees associated with applicable Services shall be as set forth below. All fees are exclusive of all applicable taxes imposed by the appropriate taxing authority. All capitalized terms not defined in this Schedule A shall have the meaning ascribed to them in the body of the Agreement. For the purpose of calculating fees, please consult: https://www.bitgo.com/resources/price-feeds for current information on how Custodian computes USD value of digital currencies

I. Digital Asset Storage Fee and Fixed Monthly Fee. The “Digital Asset Storage Fee” is calculated at the end of each calendar month based on the aggregate USD market value of average holdings held by Client in (i) Custodial Accounts, (ii) wallets provided as Wallet Services; and (iii) MetaMask Institutional (“MMI”) wallets.

Digital Asset Storage Fee:

Included Digital Assets Stored ($ USD): $100,000

“Overage Fee”: 5 Basis Points (bps) per month

                                                       

II. Expanded Definition of Services.  Under this fee structure, Client may be provided access to additional services provided by Custodian or its affiliates.  As such, the definition of “Services” as used in the Agreement shall be modified to mean Custodial Services, Wallet Services and the additional services set forth below.  Each additional service is subject to additional terms and conditions set forth in the applicable hyperlink.

• MMI Services. MMI Services are defined and governed by the Online Terms. MMI Services are made available through ConsenSys Software Inc (“ConsenSys”) and are also governed by ConsenSys’s Terms of Use (located at https://consensys.net/terms-of-use/).

• Staking Services. Staking (where available) are governed by https://www.bitgo.com/legal/staking-and-delegation-services-terms.

III. Payment Terms.  Client shall pay such fees and expenses to Custodian within thirty (30) days after the date of Custodian’s invoice.  Invoices may be provided by electronic delivery.  Payments shall be made to Custodian in U.S. Dollars, Bitcoin, USDC or USDT. If any invoice is disputed in good faith, Client shall pay all undisputed amounts and the disputed amount will be due and payable within thirty (30) days after any such dispute has been resolved either by agreement of the parties or in accordance with dispute resolution procedures in the Agreement.  All late payments and any disputed payments made after the resolution of such dispute shall bear interest accruing from the original payment due date through the date that such amounts are paid at the lower interest rate of (A) 1.0% per month and (B) the highest interest rate allowed by Applicable Law.  Notwithstanding the foregoing, failure to pay undisputed fees and expenses by Client shall constitute a material breach of the Agreement.  Client agrees that, without limitation of Custodian’s other rights and remedies, Custodian shall have the right and authority, in its discretion, to liquidate any and all Digital Assets in Client’s Account to cover any unpaid fees and expenses.

If a correct taxpayer number is not provided to Custodian, Client understands and agrees that Client may be subject to backup withholding tax at the appropriate rate on any interest and gross proceeds paid to the account for the benefit of Client.  Backup withholding taxes are sent to the appropriate taxing authority and cannot be refunded by Custodian.

IV. Fee Schedule Amendment.  Any amendment of this Schedule A shall be in writing and executed by authorized representatives of each party.

SCHEDULE B: THIRD PARTY PROVIDERS

Third Party Provider: BitGo, Inc. 

Service: Backend/Platform key for Blockchain transactions; Backend/Platform for Non-custodial wallet; Wallets

Qualifications: BitGo, Inc., is an affiliate of the Custodian incorporated under the laws of Delaware, USA. BitGo Inc., holds the platform key (1 out of 3 keys) to co-sign transactions with Custodian. BitGo Inc., provides the platform that Client utilise to interact with Custodian and BitGo Inc.

---

ONLINE STAKING & DELEGATION SERVICES ADDENDUM 

The undersigned party (“Client” or “Delegator”) seeks to obtain certain staking and delegation services from one or more BitGo Entity (as defined below) from which Client is currently receiving wallet or custodial services under a Relevant Agreement (as defined below) with each such BitGo Entity. 

BitGo Custody MENA FZE is a free zone establishment, registered with the Dubai World Trade Centre (registration number [∙]) with its registered offices at [∙].  BitGo Custody MENA FZE is regulated by the Dubai Virtual Assets Regulatory Authority to carry out Virtual Asset-related activities, including custody and staking services, in or from the Emirate of Dubai, including its free zones, but excluding the Dubai International Financial Centre. 

By entering into this Addendum and delegating Tokens, in relation to such activity, Client agrees to be bound by the terms of this Addendum as of the date of Client’s signature below (the “Staking Services Effective Date”). This Addendum does not otherwise modify or supersede the provisions of the Relevant Agreement. Capitalized terms will have the meanings set out in the Definitions section below. 

1. DEFINITIONS 

1.1. “Additional Terms” means certain terms in respect of the delegation of Tokens of each Supported Blockchain, as described in the Additional Staking Terms section within the Platform. The Additional Terms are subject to the protocols of the Supported Blockchain, and changes of such protocols imposed by the respective Supported Blockchain and these Additional Terms may be amended or relocated from time to time. 

1.2. “BitGo Entity” means BitGo Custody MENA FZE, BitGo Trust Company, Inc., BitGo, Inc. or an affiliated BitGo entity, depending on which entity is providing the Delegator Wallet from which the Staking Services are supported. 

1.3. “Blockchain Protocols” means any protocols or operations of the Supported Blockchain, including the rules governing the validation and inclusion of transactions in the Supported Blockchain. 

1.4. “Delegator’s Rewards” means the Net Rewards described at Section 2. 

1.5. “Delegator Wallet” means a wallet that supports certain virtual assets that is (i) provided to Delegator by BitGo, Inc.; (ii) held in a custodial account by BitGo Trust Company, Inc. on behalf of Delegator; or (iii) provided by a BitGo Entity or held in a custodial account by an affiliate of BitGo Trust Company, Inc. on behalf of Delegator. 

1.6. “Law” means any applicable national, provincial, international, federal, state, county, and local statute, law, ordinance, regulation, rule, code, and order. 

1.7 “Missed  Rewards”  means any Delegator’s Rewards that would have been received but for the failure  of  BitGo Entity  or  a  third-party  staking  provider  to  sign  blocks  for  a  Supported  Blockchain  when performing Services in its role as a validator, unless such failure was due to acts, omissions or faults beyond the  control  of  such  parties.  Further,  Missed  Rewards  does  not  mean  nor  include  the  optimization of Rewards.

1.8. “Net Rewards” means the sum of the Rewards minus Slashing Penalties (if any). 

1.9. “Party” means a BitGo Entity or Delegator, as applicable; and “Parties” means, together, the relevant BitGo Entity and Delegator. 

1.10. “Person” means any individual, organization, business, partnership, entity, corporation, or government. 

1.11. “Platform” means the computational infrastructure or platform through which the BitGo Entity performs the Staking Services. 

1.12. “Relevant Agreement” means an agreement between Client and a BitGo Entity pursuant to which the BitGo Entity provides one or more Delegator Wallets to Client. 

1.13. “Rewards” means any rewards granted by the Supported Blockchain, including block rewards, endorser rewards, and transaction fees, in each case as actually granted by the Supported Blockchain and received by a BitGo Entity or Delegator, as applicable, in connection with the performance of the Staking Services. 

1.14. “Slashing Penalties” means any penalty or reduction of Rewards applied by the Supported Blockchain. 

1.15. “Slashing Reimbursements” means the payment by the BitGo Entity to Delegator of an amount equal to any Slashing Penalties, subject to Section 4 and the Additional Terms. 

1.16. “Staking Services” means the exercise by a BitGo Entity of Token Rights on behalf of Delegator under this Addendum, as described in Section 2.1. 

1.17. "Staking Service Fee” has the meaning set forth in Section 2.2. 

1.18. “Supported Blockchain” means any proof-of-stake network or blockchain ledger on which BitGo Entity may exercise Token Rights delegated to it by Delegator. Each Supported Blockchain has its own protocols and terms. The Supported Blockchains and some applicable terms are identified in the Additional Terms. 

1.19. “Token” means any digital and/or virtual blockchain assets (whole or fractional) that Delegator has delegated to BitGo Entity in accordance with the protocol of the applicable Supported Blockchain. The list of supported Tokens is currently available at: https://developers.bitgo.com/coins. The foregoing list or foregoing URL may be updated or changed from time to time in BitGo Entity’s sole discretion. 

1.20. “Token Rights” means, together, Validation Rights and Voting Rights. 

1.21. “Validation Rights” means rights of a Token owner to validate and sign the next definitive serial transaction record on a Supported Blockchain. 

1.22. “Voting Rights” means rights of a Token owner to vote upon proposals related to the operation and governance of the respective Supported Blockchain. 

1.23. “Website” means https://bitgo.com. 

2. SERVICES, REWARDS, SERVICE FEE, PROTOCOL CHANGES, WITHDRAWAL 

2.1. Staking Services. Subject to the terms of this Addendum, the BitGo Entity, either in its own capacity or through a third-party staking provider (a “Staking Provider”), will (a) stake the Tokens Client has delegated by exercising the Validation Rights in a manner intended to generate Net Rewards; and (b) vote the Tokens by exercising the Voting Rights, unless the Delegator elects to exercise the Voting Rights in accordance with the protocols of the applicable Supported Blockchains. The BitGo Entity may consolidate the Token Rights delegated by Delegator with other Validation Rights and Voting Rights delegated to or otherwise exercised by BitGo Entity. More information on staking flow can be found at this URL: https://developers.bitgo.com/guides/stake/overview 

2.2. Staking Service Fee. In exchange for the performance of the Staking Services, the BitGo Entity shall be entitled to receive the validator service fees as set out in the Additional Terms in respect of each Supported Blockchain or as otherwise agreed upon by the parties in writing (the “Staking Service Fee”). For the avoidance of doubt, the Staking Service Fee is in addition to any fees proscribed in Client’s Relevant Agreement. Assets that are staked as part of the Staking Services shall be taken into account for purposes of calculating an Assets Under Custody Fee, Virtual Assets Storage Fee or similar fee, in all cases, if defined in the Relevant Agreement. Further, staking transactions will not result in transaction fees that may be applied under the Relevant Agreement to outgoing transactions as the transaction is classified as an internal transfer, however, Client remains responsible for any applicable network fees. 

2.3. Transfer of Net Rewards. The BitGo Entity’s performance of the Staking Services is expected to result in the transfer of Net Rewards by the Supported Blockchain as follows: (a) for a standard token flow (the “Standard Flow”) (i) to Delegator by transferring Net Rewards to the wallet address from which Delegator delegated the Tokens under this Addendum; and (ii) to the BitGo Entity as the Staking Service Fee; (b) for a non-standard token flow (the “Non-standard Flow”) to Delegator by transferring Net Rewards (inclusive of the Staking Service Fee) to the address of the Delegator Wallet from which Delegator delegated the Tokens in connection with this Addendum; and (c) the Net Rewards may be in the same denomination as the Tokens that Delegator delegated under this Addendum. Staking Service Fees transferred to Delegator pursuant to the Non-standard Flow shall be paid by Delegator to BitGo Entity in arrears by invoice. The transfer of Net Rewards is subject to the protocols of the Supported Blockchain and any variations to this section that may be set out in the Additional Terms. Delegator acknowledges that the transfer of Net Rewards by the Supported Blockchain is not guaranteed, Delegator may not receive the Delegator’s Rewards, and that the BitGo Entity is not responsible in any way for any failure by the Supported Blockchain to transfer Net Rewards to Delegator or the loss, destruction, or transfer of Net Rewards to the incorrect wallet address of Delegator. Furthermore, nothing in this Addendum guarantees the optimization of Rewards. 

2.4. Slashing. The BitGo Entity will take commercially reasonable steps to avoid the slashing of any Token delegated by Delegator hereunder. 

2.5. Slashing Reimbursement. The BitGo Entity will make payment, directly to the applicable Delegator Wallet, a Slashing Reimbursement for any Slashing Penalty assessed against a Delegator Wallet in connection with BitGo Entity’s Staking Services, subject to Section 4.1 and the Additional Terms. 

2.6. Protocol Changes, Airdrops & Forks. Delegator acknowledges that Supported Blockchain protocols may change, and airdrops or forks may arise, in each case outside of the control of the BitGo Entity and that, therefore, except as may be otherwise provided in this Addendum: (a) the BitGo Entity may respond to protocol changes, airdrops or forks in any way that the BitGo Entity determines appropriate in its sole discretion acting reasonably; (b) the exercise by the BitGo Entity of any right or power that is available to it in its capacity as a validating node on the Supported Blockchain shall not constitute a breach or violation any obligation owed by the BitGo Entity to Delegator under this Addendum; and (c) the BitGo Entity is not responsible for any losses, liabilities, damages, or reductions in value in respect of the Tokens or otherwise suffered by Delegator in connection with protocol changes, airdrops or forks. In the event that a Supported Blockchain undergoes a change imposed by such protocol, such protocol change shall be deemed to be incorporated into and supersede any conflicting terms of the Additional Terms if determined by the BitGo Entity in its sole discretion. 

2.7. Withdrawal. Tokens withdrawn by Delegator may be subject to unbonding periods imposed by the protocols of the Supported Blockchain. Tokens and Net Rewards may be unavailable to Delegator during the unbonding periods and subject to other restrictions imposed by the Supported Blockchain. The BitGo Entity will not be liable for any losses, liabilities, damages, reductions in value, or foregone opportunities incurred by Delegator in connection with the events described in this section. 

3. TERM and TERMINATION 

3.1. Term, Termination and Survival. The term of this Addendum (the “Term”) commences on the Staking Services Effective Date and shall continue in effect until terminated in accordance with the terms of this section. Either Party may, any time and for any reason whatsoever, terminate this Addendum (i) in the case of Delegator, by written notice to the BitGo Entity, or (ii) in the case of the BitGo Entity, by taking steps to terminate the delegation of Tokens of Delegator to the BitGo Entity; in each case, the termination is subject to any restrictions on termination provided in the Additional Terms and the terms of each Supported Blockchain. Upon any termination of this Addendum: (a) Delegator will cease delegating Tokens; (b) Delegator will initiate re-delegation and unbonding of the Tokens, as applicable; and (c) Delegator will make payment of all outstanding amounts owing to the BitGo Entity under this Addendum. The following provisions will survive any expiration or termination of this Addendum: Section 1, 4, 5, and 6. 

4. LIMITATION OF LIABILITY, INDEMNIFICATION 

4.1. Limitation of Liability. In no event will any BitGo Entity be liable to Delegator or any other party for any incidental, indirect, consequential, special, exemplary, or punitive damages or losses of any kind (including Missed Rewards, revenues or profits) arising from or relating to this Addendum, regardless of whether BitGo Entity was advised, had other reason to know, or in fact knew of the possibility thereof. Furthermore, BitGo Entity shall not be liable to Delegator, its customers or any other person for any Slashing Penalty or Missed Rewards or any other damages or losses caused by protocol-wide malfunctions of a Supported Blockchain, bug(s) in validator client software, or malfunction by other validators than those operated by BitGo Entity or a thirty-party staking provider. For the avoidance of doubt, BitGo Entity will not be liable for “correlated Slashing Penalties” caused by validators operated by entities other than BitGo Entity or BitGo Entity’s third-party staking providers, slashing on the Ethereum blockchain. A BitGo Entity’s aggregate liability for direct damages under this Addendum will not exceed the amount equal to the sum of the Staking Service Fees collected by the BitGo Entity under this Addendum during the period six months prior to the event giving rise to the liability. For Slashing Penalties, a BitGo Entity’s total liability for each Supported Blockchain is capped at the amount of Staking Service Fees collected by BitGo Entity for that Supported Blockchain in the 6 months prior to the event giving rise to the Slashing Penalty being assessed. For Missed Rewards, a BitGo Entity’s liability for each Supported Blockchain is capped at the amount of Staking Service Fees collected by that BitGo Entity for that Supported Blockchain in the 3 months prior to the event giving rise to the Rewards being missed. Without limiting the foregoing, no BitGo Entity will be liable to Delegator or any other party for any damages or losses of any kind arising from or relating to any malfunction or failure of the Supported Blockchain. Further, no BitGo Entity is liable to pay de minimis amounts (those less than $1,000 USD in equivalency) to Client for Slashing Penalties or missed Rewards as it relates to each relevant Supported Blockchain. 

4.2. Indemnification. Delegator will indemnify and hold the BitGo Entities, their affiliates, subcontractors, licensors and agents and directors, officers, employees and representatives harmless from and against all damages arising from or related to any third party claim arising from or related to Delegator’s acts or omissions, including without limitation any breach of this Addendum. 

5. REPRESENTATIONS AND WARRANTIES 

5.1. Representations and Warranties of Delegator. Delegator represents and warrants to each relevant BitGo Entity, as of the Staking Services Effective Date and each date on which Delegator delegates Token Rights under this Addendum, that: (a) Delegator has all right, title, and interest in and to the Tokens; (b) the execution, delivery, and performance of this Addendum by Delegator (i) does and will not conflict with or violate in any Law, and (ii) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, Addendum, or commitment binding upon Delegator; (c) Delegator is not entering into this Addendum or delegating Token Rights for the purpose of making an investment with respect to any BitGo Entity or its securities, but instead, and only, to receive the Staking Services from the BitGo Entity; (d) without limiting the foregoing, Delegator acknowledges and agrees that the entering into and performance of this Addendum by each Party (including the delegation of Token Rights by Delegator) does not (i) represent or constitute a loan or a contribution of capital to, or other investment in, any BitGo Entity; or (ii) provide Delegator with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in, any BitGo Entity. Delegator has conducted its own due diligence and analysis of the Supported Blockchain and the matters provided under this Addendum in order to determine whether Delegator wishes to enter into this Addendum and delegate Token Rights to BitGo Entity in order that BitGo Entity may perform the Staking Services. Delegator has not relied upon any information, statement, omission, representation or warranty, express or implied, written or oral, made by or on behalf of any BitGo Entity in connection with the entering into and performance of this Addendum by the Parties. 

6. DISCLAIMER, ACKNOWLEDGEMENT OF RISK 

6.1. Disclaimer. Delegator acknowledges and agrees that use of the Staking Services is at their sole risk. Each relevant BitGo Entity provides the Staking Services on an “as-is” and “as-available” basis and, to the maximum extent permitted by applicable law, we disclaim all representations, warranties and conditions regarding the Staking Services or your use thereof, including without limitation any warranties or conditions of merchantability, merchantable quality, durability, fitness for a particular purpose, non-infringement, title, quiet enjoyment or quiet possession and those arising by statute or in law, or from a course of dealing or usage of trade. BitGo Entity does not warrant that the Staking Services will meet Delegator’s requirements or expectations, will operate without interruptions, that they will be error-free, virus-free, that the results obtained from their use will be timely, accurate, reliable or current or that any or all deficiencies can be found or corrected.

6.2. Acknowledgement of Risk. Delegator understands and agrees that: (a) there are risks associated with the use, holding and staking of Tokens and Delegator represents and warrants that it: (i) fully understands and is knowledgeable and experienced with the nature, use, holding and staking of Tokens and all related Blockchain Protocols; (ii) is capable of evaluating the benefits and risks thereof; and (iii) is capable of bearing the economic risk of using, holding and staking Tokens, including without limitation the risk of loss or forfeiture of any staked Tokens; (b) the continued ability to stake Tokens or provide the Staking Services is dependent on many elements beyond the BitGo Entity’s control, including without limitation, the publication of blocks, network connectivity, hacking or changes in technical elements and the Blockchain Protocols; (c) regulatory authorities may have not reviewed or passed on the merits, legality or fungibility of Tokens or the use, holding or staking of Tokens; (d) the staking of Tokens or the use of the BitGo Entity’s Staking Services may become subject to regulatory controls that limit, restrict, prohibit or otherwise impose conditions on such activities; (e) Rewards are not guaranteed and may vary depending on many elements beyond the BitGo Entity’s control, including applicable Blockchain Protocols, and Delegator is not relying on the BitGo Entity to generate any profits or return; and (f) and Delegator is solely responsible for complying with applicable laws and the BitGo Entity does not warrant that the Staking Services are legal for use by Delegator in its jurisdiction.