This FV Bank Assets Custody Agreement, as amended from time to time, (“Custody Agreement”) governs your use of and access to FV Bank’s (“we,” “us,” or “our”) custodial services (“Custodial Services”) for Supported Assets, Fiat Currency, or both (each defined below). Please read and download, save, and/or print a copy for your records.
Please read this Custody Agreement carefully. By using our Custodial Services, you agree to be bound by this Custody Agreement. You agree that if you continue to use our Custodial Services following a change to this Custody Agreement, you are agreeing to be legally bound to the revised Custody Agreement. You further agree that we may, but are not obligated to, require your express and affirmative consent to this Custody Agreement, from time to time, to use the Custodial Services. If you do not agree to be bound by the Custody Agreement, you should not use our Custodial Services.
If this Custody Agreement conflicts with any other agreements related to your Custody Account, including the FV Bank Online Banking Agreement, the Depositary Agreement or any other related agreements include terms that are not addressed in this Custody Agreement, then the other agreements will control and take precedence, unless this Custody Agreement specifically states otherwise. The other agreements will only control with respect to the Custody Account with which it is associated, and only to the extent necessary to resolve the conflict or inconsistency. Additional provisions of other agreements regarding your Custody Account that do not appear in this Agreement will continue to apply.
The defined terms below, if not otherwise defined in this Custody Agreement, have the meanings set forth below:
- “Assets” means Virtual Currency and/or Digital Assets.
- “Authorized Person” means any person you designate to have access to your Custody Account.
- “Blockchain Address” means a public address on a blockchain in which Virtual Currency or Digital Assets can be held.
- “Custodial Assets” means any Supported Assets or Fiat Currency that have been Delivered to us for us to hold in a Custody Account that we established on your behalf. Custodial Assets will cease being Custodial Assets when they are withdrawn from the Custody Account or otherwise cease to be Custodial Assets as set forth in this Custody Agreement. This includes, but is not limited to, you withdrawing your Custodial Asset (1) to another account you hold with us, or (2) for another product or service we provide under which you are pledging your assets as security, such as a loan or an investment product.
- “Custody Portal” means the custody portal you access via our website or other FV Bank provided interface that allows you to view your Custodial Asset balances and initiate Custody Account Transactions.
- “Delivery,” “Deliver,” or “Delivered” means the transfer of Supported Assets to a Blockchain Address(es) controlled by the receiving party and provided by the receiving party to the sending party. Supported Assets will only be Delivered to us after the required number of network confirmations, as determined by us in our sole discretion, have occurred on the blockchain for such Supported Assets.
- “Digital Assets” means all digital assets that are not Virtual Currency.
- “Fiat Currency” means U.S. dollars or other National Currency.
- “National Currency” means currency that is legal tender under the laws of a foreign jurisdiction, but excluding any Virtual Currency defined as legal tender in such jurisdiction.
- “Settlement” or “Settlement Transaction” means the conversion of a Supported Asset or Fiat Currency by converting (1) one Supported Asset to another Supported Asset or Fiat Currency, or (2) Fiat Currency into a Supported Asset based upon your instruction and acceptance of the Settlement Transaction Details (defined below), which includes any applicable fees.
- “Supported Assets” means Assets that are eligible, in our sole discretion, for Custodial Services.
- “Transfer” or “Transferring” means an instruction you provide to either transfer Fiat Currency from your deposit account with us to your Custody Account or from your Custody Account to your deposit account with us.
- “Virtual Currency” means any type of digital unit that can be digitally traded, transferred, or stored and that is used as a medium of exchange.
- “Withdrawal Instruction” means a request that we receive via the Custody Portal to withdraw Custodial Assets from your Custody Account that (i) specifies the type and amount of Custodial Assets to be withdrawn from your Custody Account and (a) for Assets, the Blockchain Address that you want the Assets sent to, or (b) for Fiat Currency, the withdrawal Transfer instructions.
A. Appointment of Custodian
You appoint us to act as the custodian of your Custodial Assets to be held in your custody account (“Custody Account”) per the terms of this Custody Agreement, and we accept such appointment and all the obligations, duties, and responsibilities that are set forth in this Custody Agreement. We are authorized by the Government of Puerto Rico’s Office of the Commissioner of Financial Institutions to engage in the custody of Supported Assets.
B. Not Investment Advice or Other Advice Provided Regarding Your Assets
We do not provide investment, tax, legal, or any other advice in any form regarding your Assets. You expressly acknowledge that we have not provided any advice, guidance, or recommendations to you regarding the suitability or the value of any Assets. You expressly acknowledge that we have no liability regarding the selection of any Custodial Asset that you hold with us through our Custodial Services or that you use to engage in Custody Account Transactions. We execute all deposit, withdrawal, and Settlement transactions based on your instructions and in accordance with the deposit, withdrawal, and Settlement execution procedures established by this Custody Agreement. You are solely responsible for determining whether any investment, investment strategy, or related transaction involving Assets is appropriate for you. You should consult with any relevant professionals, whether they be investment, legal, tax, or otherwise, regarding your specific situation.
C. Acknowledgement of Risks
You acknowledge that Custodial Assets and the Custody Account(s) are not covered by the Federal Deposit Insurance Corporation, the Securities Investor Protection Corporation, or any other governmental, regulatory, or industry-backed insurance or protection program.
You acknowledge that Supported Assets may constitute new forms of Assets and that the law concerning their ownership, custody, Settlement, and transfer is evolving. You acknowledge that using Supported Assets and any related networks and protocols involves risk, including risks that may not be present with traditional asset classes. It is your duty to learn about risks involved with Supported Assets, including the related protocols and networks. We make no representations or warranties regarding the value of any Assets you provide to us as part of the Custodial Services and you agree and understand that you will bear such risks and potential diminution in value of the Supported Assets, including risks due to changes or developments in the law or under existing law whereby your rights in and to Supported Assets are not sufficiently protected.
D. Custodial Services Fees
FV Bank’s fees are available for your reference on our Fee Structure page. FV Bank may adjust fees from time to time as deemed necessary. For fees associated with Custody Account Transactions, FV Bank will display all fees before you finalize a transaction, which may include FV Bank fees plus estimated blockchain network fees. Because certain Custody Account Transactions occur on the blockchain underlying the Supported Asset, the fees to process such transactions imposed by the blockchain network may be dynamic and can vary. This means, for example, that the total fees you may incur for conducting a Custody Account Transaction may vary from those FV Bank displayed to you because the fees associated with the blockchain network may have changed when you execute the transaction. You acknowledge that such blockchain network fees displayed by FV Bank may be estimates and that FV Bank is not responsible for, has no control over, and assumes no liability for fees incurred by you for use of the blockchain network to conduct transactions for the Supported Asset. For fees applicable to Settlement Transactions, the fee FV Bank charges will be included in the Settlement Transaction Details presented to you. By using the Custodial Services, you agree to pay all applicable fees.
To use our Custodial Services, you understand that you must request and be approved for a Custody Account. We will establish your Custody Account as a custody account that we control and secure for your benefit to store certain Custodial Assets of yours. We may, in our sole discretion, refuse to allow you to create a Custody Account with us.
Our Custodial Services will allow you to (1) deposit Supported Assets from (i) a Blockchain Address you control, or (ii) from a Blockchain Address for which you authorize someone to send Supported Assets to your Custody Account; (2) Transfer Fiat Currency, either to or from a separate depository account you have with us; (3) withdraw Custodial Assets from your Custody Account to a Blockchain Address you have designated and that we have approved based on instructions we receive from you through our Custody Portal; and (4) enter into Settlement Transactions of your Custodial Assets (each such transaction is a “Custody Account Transaction”). Your Custody Account will have one or more associated Blockchain Addresses where your Supported Assets can be deposited via a Custody Account Transaction. The records of your Custody Account Transactions will be segregated from all other Supported Assets and Fiat Currency that we custody for other customers or that are our Assets or Fiat Currency. We will clearly record the ownership of your Custodial Assets in our books and records as belonging to you and our records will at all times provide for the separate identification of your Custodial Assets. We will provide you with all Blockchain Addresses associated with your Custody Account.
B. When Your Assets or Fiat Currency become Custodial Assets
A Supported Asset will only become a Custodial Asset subject to this Custody Agreement once it has been Delivered to the Blockchain Address that we provide to you for such Supported Asset for your Custody Account, and subject to our Custody Account Transaction approval process. We have no obligation regarding any of your Supported Assets unless such Supported Assets have been Delivered to us and become Custodial Assets. Further, you agree that even if a Supported Asset is Delivered, that we are not required to provide Custodial Services to such Supported Asset, and we may at our discretion return such Supported Assets to the Blockchain Address it was Delivered from. Fiat Currency becomes a Custodial Asset when it is deposited into your Custody Account.
Title to Supported Assets and Fiat Currency in your Custody Account remains with you at all times. As owner, you bear all risk of loss of such Supported Assets and Fiat Currency.
C. Custody Account Transactions Generally
We do not guarantee the identity of any Authorized Person, user, receiver, requestee, or other party to a Custody Account Transaction. You must verify all information prior to initiating a Custody Account Transaction. You are responsible for all losses and liabilities that result from providing inaccurate information (e.g., if you provide the wrong Blockchain Address for executing a Withdrawal Instruction). We reserve the right to charge our fees, including applicable network fees to process a Custody Account Transaction on your behalf. We will calculate the network fee, if any, in our discretion, although we will always notify you of the total estimated fee at or before the time you authorize the Custody Account Transaction.
Processing Custody Account Transactions are subject to our acceptance. We reserve the right to refuse to process or to cancel any pending Custody Account Transaction (i) if doing so is required by law; (ii) in response to a subpoena, court order, or other binding order; (iii) to enforce transaction, threshold, and condition limits for that Custody Account Transaction or your Custody Account; or (iv) if the Custody Account Transaction does not meet our internal risk requirements or legal risk requirements, including risks concerning anti-money laundering, U.S. or other sanctions obligations, or other internally identified risks. Provided we are permitted to do so, we will communicate such refusal to process or cancellation to you as soon as reasonably practicable. We further reserve the right to refuse to process or to cancel any pending Custody Account Transaction if we reasonably believe that the Custody Account Transaction may violate or facilitate violating an applicable law, regulation, or rule of a governmental authority or self-regulatory organization. We cannot, however, reverse a Custody Account Transaction that has been submitted to the Asset network even if the network has not confirmed the Custody Account Transaction.
You can only deposit Supported Assets into your Custody Account via a Blockchain Address we provide to you for such Supported Asset. We will credit all deposits of Supported Assets to your Custody Account once they are Delivered and approved. We make no representations or warranties regarding the amount of time needed to complete the processing of a deposit of a Supported Asset such that it is Delivered to us, which is dependent on factors outside our control. You can only deposit Fiat Currency into the Custody Account by Transferring Fiat Currency from a depository account you hold with us.
Before you may withdraw any Assets, you must first designate the Blockchain Address to which you would send any withdrawn Assets and we need to approve the Blockchain Address. Once you have an approved Blockchain Address, we process withdrawals from your Custody Account per the Withdrawal Instruction we receive, whether from you or an Authorized Person. You or the Authorized Person should verify all transaction information before submitting a Withdrawal Instruction. If any Withdrawal Instruction is ambiguous or conflicting, we will refuse to execute the Withdrawal Instruction until the ambiguity or conflict has been resolved. We reserve the right to refuse to approve a Blockchain Address or right to remove an approved Blockchain Address which was previously approved to be used for withdrawals based upon our legal and risk requirements.
From the time that we have verified the Withdrawal Instruction to withdraw Assets from your Custody Account, we will have up 72 business hours to process and complete the Withdrawal Instruction by submitting your withdrawal to the applicable Asset network. You acknowledge and agree that a Withdrawal Instruction may not be withdrawn once we transmit it to the Asset network. You can only initiate such a withdrawal request from your Custody Account through the Custody Portal. We reserve the right to take additional time beyond 72 business hours to complete the Withdrawal Instruction if such additional time is required to verify security processes for large or suspicious transactions; we will execute any such processes reasonably and in accordance with our documented protocols. These protocols may change at our sole discretion.
You may Transfer Fiat Currency from your Custody Account to your depository account held with FV Bank only. Once you have Transferred your Fiat Currency to you depository account with FV Bank, you may conduct any transaction permissible under the Online Banking and Depository agreement.
We may rely in performing our duties under this Custody Agreement, and without any liability on our part, upon Withdrawal Instructions we receive that we believe in good faith to have been given by an Authorized Person.
F. Supported Assets
We only offer Custodial Services to Supported Assets. The Assets that we support may change. Before you initiate a deposit of your Asset to your Custody Account, you must confirm that we offer Custodial Services for that specific Asset. When you initiate a deposit of an Asset to your Custody Account, you attest and acknowledge that you have confirmed that the Asset you want to transfer is a Supported Asset. You will not, under any circumstance, attempt to use the Custodial Services to deposit or store Assets that are not Supported Assets. Depositing or attempting to deposit Assets that we do not support may result in such Asset being unretrievable by you or us. We assume no obligation or liability regarding any (i) unsupported Asset sent or attempted to be sent to your Custody Account, or (ii) attempt to use the Custodial Services for Assets that we do not support. To confirm which Assets we support, you should visit the Custody Portal. Before initiating a deposit, we recommend that you deposit a small amount of the Supported Asset to test prior to you initiating a deposit for a significant amount of the Supported Asset.
If a Supported Asset becomes a non-supported Asset, we will provide you with thirty (30) days’ written notice before ceasing to support an Asset, unless we are required to cease supporting the Asset by court order, statute, regulation, rule (including a self-regulatory organization rule), or other similar requirement, in which case written notice shall be provided as soon as reasonably practicable. If you have not withdrawn the Supported Asset or converted the Supported Asset via a Settlement Transaction before we cease to support the Asset, you agree that we are permitted, but not required, to sell the Asset on the open market at the current market price for such Asset as provided to FV Bank by the third party FV Bank will use to sell the Asset and return the proceeds (minus any fees associated with the sale, any discounts, rebates, damages, or all of the above to which we are entitled) in Fiat Currency to your Custody Account. You acknowledge and agree that FV Bank will not be liable in any regard for any claims of lost profits or any related claims or other claims concerning the value of the Assets sold and that FV Bank is entitled to rely on the market price provided to FV Bank by the third party as representing the current market price of the Asset, even if a different provider would have provided a different market price.
Unless we specifically announce on our website or through another official public statement and except as set forth in this Custody Agreement, we do not support airdrops, side chains, “forked” protocols, or other derivative or enhanced tokens or coins that that supplement or interact with a Supported Asset. You will not use your Custody Account to attempt to receive, request, send, store, or engage in any Custody Account Transactions involving such Assets. The Custodial Services are not configured to support such transactions and we assume no responsibility in respect to such transactions.
G. Location of the Custodial Assets
The Location of the Custodial Assets shall be the Commonwealth of Puerto Rico. FV Bank will receive written approval from you before changing the Location of the Custodial Assets. “Location” means, for Custodial Assets, the jurisdiction in which you and FV Bank deem such Custodial Assets to be present.
H. Settlement Transaction Services
From time to time you may request we perform a Settlement Transaction involving a Custodial Asset by converting (1) one Supported Asset to another Supported Asset or Fiat Currency, or (2) Fiat Currency into a Supported Asset. You must have sufficient Custodial Assets prior to initiating a Settlement Transaction request. If you do not have sufficient Custodial Assets, your Settlement Transaction request will be rejected. If you seek to initiate a Settlement Transaction, we will provide you a quote of the amount of any Supported Assets to be bought or sold, the purchase price or sale proceeds of your Settlement Transaction, any fees charged for the Settlement Transaction, and the net proceeds you will receive from the Settlement Transaction that will be deposited into your Custody Account (“Settlement Transaction Details”). Upon your review, confirmation, and acceptance of the Settlement Transaction Details, we will facilitate the Settlement Transaction by converting the original Supported Asset or Fiat Currency to the target Supported Asset or Fiat Currency. The full amount of Custodial Assets required to fulfill a Settlement Transaction, including any fees, will be locked until the Settlement Transaction is complete. Once you have submitted a Settlement Transaction request, it is binding, and you will not be able to cancel the Settlement Transaction.
You acknowledge and agree that you are solely responsible for any decision to initiate a Settlement Transaction, including evaluating all risks related to such transaction, and that you have not relied on any statement or other representation of FV Bank. You understand that FV Bank is a facilitator for any Settlement Transaction and is not a counterparty to any Settlement Transaction. As a facilitator to a Settlement Transaction, FV Bank bears no liability concerning any Settlement Transaction.
In initiating a Settlement Transaction request, you acknowledge and agree that we may use the services of one or more third-party vendors to execute the conversion and that the third-party vendor may, in addition to providing FV Bank conversion services, also be a market maker participant. You also acknowledge and agree that we or our third-party vendors reserve the right to reject any Settlement Transaction request or cancel any Settlement Transaction before execution for any reason in our or their sole discretion. Neither FV Bank nor any third-party vendor bears any responsibility if the Settlement Transaction request was placed during any time that the Settlement Transaction services are unavailable, encounters an error or other difficulty, is delayed, or if the Settlement Transaction otherwise cannot be completed.
I. Operation of Supported Asset Protocols and Forks
We do not own or control the underlying software protocols of the networks which govern the operation of Supported Assets. By using the Custodial Services, you acknowledge and agree (i) that we are not responsible for operation of the underlying protocols and that we make no guarantee of their functionality, security, or availability; and (ii) that the underlying protocols are subject to changes in how they operate, such as through a fork, and that such forks may affect the value and function of the Asset you store in your Custody Account. In the event a fork of a Supported Asset occurs, you agree that we may temporarily suspend our operations; provided that we shall (where practical) provide advance written notice to you at the email address you have provided us upon our becoming aware of such a potential suspension due to a fork of a Supported Asset, and that we may, in our sole discretion, decide whether or not to support (or cease supporting) either branch of the forked protocol entirely. You acknowledge and agree that we assume no responsibility in respect of an unsupported branch of a forked protocol. Further, you acknowledge and agree that in no event will we be liable for or in connection with any acts, decisions, or omissions made by the developers of such Supported Assets.
J. Access to Custody Account and Keeping Contact Information Up to Date
You may access your Custody Account through our Online Banking Portal available at www.fvbank.us or other approved interface. To do so you must have a username, a password and any other security devices or credentials we may require from time to time along with the required hardware and software as described below.
You are responsible for maintaining adequate security and control of your username, password, other security devices or credentials, or any other codes that you use to access the Custodial Services. If you give someone your username, password and/or other security devices or credentials, you are authorizing that person to use the Custodial Services in your name, and you are responsible for all Custody Account Transactions the person performs using your username, password and other security devices or credentials. All Custody Account Transactions performed by that person, even those transactions you did not intend or want performed, are authorized Custody Account Transactions.
Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your Custody Account by third-parties and the loss or theft of any Custodial Assets held in your Custody Account. You are responsible for keeping your email address and telephone number up to date in your Online Banking Profile to receive any notices or alerts that we may send you. We assume no responsibility for any loss that you may incur because of a compromise of your login credentials due to no fault of FV Bank and/or failure to reasonably follow or act on any notices or alerts that FV Bank may send to you in accordance with this Agreement. If you believe that your Online Banking Profile information has been compromised, you must contact FV Bank support immediately at firstname.lastname@example.org.
We will provide you a statement of your Custody Account which will be available in the Online Banking Portal, you may view and print the statement at your convenience. The statement will include all Custody Account Transactions and fees associated to your Custody Account.
L. Custody Account Suspension
You acknowledge and agree that we have the right to suspend your Custody Account, freeze any Custodial Assets you have in your Custody Account, suspend or limit your access to your Custody Account, or all of the above, if we suspect, in our sole discretion, that you, the Custody Account, or both are in violation of (i) any provision of this Custody Agreement, (ii) any applicable laws, or (iii) our anti-money laundering program. You further agree that we have the right to suspend your Custody Account, freeze any Custodial Assets you have in your Custody Account, suspend or limit your access to your Custody Account, or all of the above, if (i) we have determined, in our sole discretion, providing Custodial Services to you or your Supported Assets fails to meet our internal risk requirements or legal risk requirements; (ii) we are required to do so by any relevant regulator or regulatory authority, a court order, a facially valid subpoena, or other binding order; (iii) the Custody Account is subject to litigation, investigation, or any governmental or regulatory proceeding; (iv) we detect unusual activity in your Custody Account; (v) we believe that someone is attempting to access your Custody Account who is unauthorized to do so; (vi) we believe your Custody Account was used to send or receive ransomware payments; or (vii) any other reason for which we are legally allowed to do so.
M. Custody Account Termination
You may close your Custody Account at any time. If you close a Custody Account, you will no longer have access to the Custodial Services. You acknowledge and agree that we may terminate your Custody Account at any time and for any reason, including for violating this Custody Agreement or any applicable law. If your Custody Account is terminated, either by you or us, we will return your Custodial Assets, to the extent we are permitted by law to do so, minus any fees you owe us. For Fiat Currency, if you or your Custody Account is no longer subject to a regulatory investigation, a court order, a facially valid subpoena, or any other legal action that would prohibit us from returning your Fiat Currency to you, you authorize us to return your Fiat Currency to the depository account you have with us, from which you may then request to withdraw such funds to an approved beneficiary outside of FV Bank. For Supported Assets, if you or your Custody Account is no longer subject to a regulatory investigation, a court order, a facially valid subpoena, or any other legal action that would prohibit us from returning your Supported Assets to you, you authorize us to sell the Supported Asset on the open market at the current market price for such Supported Asset as provided to FV Bank by the third party FV Bank will use to sell the Supported Asset and return the proceeds (minus any fees associated with the sale, any discounts, rebates, damages, or all of the above to which we are entitled) in Fiat Currency to the depository account you have with us, from which you may then request to withdraw such funds to an approved beneficiary outside of FV Bank. You acknowledge and agree that FV Bank will not be liable in any regard for any claims of lost profits or any related claims or other claims concerning the value of the Assets sold and that FV Bank is entitled to rely on the market price provided to FV Bank by the third party as representing the current market price of the Asset, even if a different provider would have provided a different market price. If your Custody Account is terminated and you either do not have a bank account with us or you have not linked another bank account to your Custody Account, you must contact us at email@example.com to arrange a method for us to return your Fiat Currency to you. In such circumstances, we may require additional verification methods, including verification of ownership of the bank account to which you would like the funds sent, before we are able to return your Fiat Currency to you.
N. Monitoring Use of Custodial Services
You acknowledge and agree that we may monitor your use of the Custody Account and the Custodial Services. The resulting information may only be used, reviewed, retained and/or disclosed by us for our internal purposes, as necessary, or in accordance with the rules of any applicable legal, regulatory or self-regulatory organization or as otherwise may be required to comply with relevant law, sanctions programs, legal processes, or government requests.
A. Governing Law
This Custody Agreement and our provision of the Custodial Services are governed by the laws of the Commonwealth of Puerto Rico and applicable federal law, without regard to any different state/country laws that may govern your Custody Accounts.
B. Disclaimer of Warranties
EXCEPT AS OTHERWISE PROVIDED HEREIN, AND SUBJECT TO APPLICABLE LAW, FV BANK MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE CUSTODIAL SERVICES. FV BANK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, WITH REGARD TO THE CUSTODIAL SERVICES. FV BANK DOES NOT WARRANT THAT THE CUSTODIAL SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. THE CUSTODIAL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
C. Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY LAW, IN NO EVENT WILL FVBANK, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, INCLUDING LOST PROFITS, DIMINUTION IN ASSET VALUE, OR LOST BUSINESS OPPORTUNITIES (EVEN IF WE AND/OR ANY FV BANK SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF) IN CONNECTION WITH THIS CUSTODY AGREEMENT, YOUR USE OR ATTEMPTED USE OF THE CUSTODY SERVICES, OR ANY OF THE INFORMATION, SERVICES OR TRANSACTIONS CONTEMPLATED BY THIS CUSTODY AGREEMENT. FV BANK’S TOTAL LIABILITY FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED BY THE VALUE OF ANY OF YOUR ALLEGEDLY LOST CUSTODIAL ASSETS IN THE CUSTODY OF FV BANK AT THE TIME OF LOSS.
FV BANK DOES NOT GUARANTEE THAT ANY CUSTODY ACCOUNT TRANSACTION WILL BE ACCEPTED, EXECUTED, OR RECORDED. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS CUSTODY AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY OTHER STATEMENT, INFORMATION, DISCLOSURE, OR UNDERSTANDING, WHETHER ORAL OR WRITTEN, REGARDING YOUR USE AND ACCESS OF THE CUSTODY SERVICES. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT FV BANK WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (I) ANY INACCURACY, DEFECT, DELAY, OR OMISSION OF SUPPORTED ASSET PRICE INFORMATION, OR ANY ERROR, DELAY, OR INTERRUPTION IN TRANSMITTING SUCH DATA; (II) VIRUSES OR OTHER MALWARE OBTAINED BY ACCESSING OUR CUSTODY PORTAL, OR ANY RELATED SITES THAT ARE OPERATED BY US OR ON OUR BEHALF OR ANY OF THE OTHER FV BANK SERVICES OR ANY WEBSITE OR SERVICE LINKED FROM OUR CUSTODY PORTAL; (III) ERRORS, BUGS, OR INACCURACIES IN OUR CUSTODY PORTAL OR OUR SOFTWARE OR SYSTEMS OPERATED BY US OR ON OUR BEHALF; OR (IV) A SUSPENSION, TERMINATION, OR OTHER ACTION TAKEN WITH RESPECT TO YOUR CUSTODY ACCOUNT INCLUDING THE SALE OF ANY ASSETS ON YOUR BEHALF AS SET FORTH IN THIS AGREEMENT.
IF THIS DISCLAIMER OF LIABILITY SECTION IS DEEMED TO CONFLICT WITH ANY OTHER SECTION OF THIS USER AGREEMENT, THIS DISCLAIMER OF LIABILITY SECTION SUPERSEDES THE OTHER SECTION. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You acknowledge and agree, on behalf of yourself if you are an individual or if you represent a legal entity, on behalf of yourself and the legal entity you represent, that you are responsible for your conduct while using the Custodial Services and except as otherwise provided in this Custody Agreement, you agree to indemnify, defend and hold harmless FV Bank, its owners, directors, officers, and agents from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, errors or inability to use the Custodial Services, or any violation by you of the terms of this Custody Agreement.
E. Vendor Release
You release us and our vendors and the employees and contractors of each of these, from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with any dispute that may arise between you or one or more other users of the Custodial Services. In addition, if applicable to you, you waive California Civil Code §1542, which states that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor.
F. Force Majeure
You agree and understand that in no event shall we or any FV Bank service provider be liable for any delays, failure in performance or interruption of service that result directly or indirectly from any cause or condition, whether or not foreseeable, beyond our or any of FV Bank’s service providers’ reasonable control, including, but not limited to, acts of nature, acts of God, acts of civil or military authority, embargoes, epidemics, pandemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, work stoppages or other labor disputes, power blackouts, unusually severe weather, loss, or malfunction of equipment or utility, communications, computer (hardware or software), Internet or network provider services.
G. Custodial Services Maintenance
At certain times, online access to your Custody Account may not be available due to system maintenance or circumstances beyond our control. Our customer care associates may be contacted at firstname.lastname@example.org.
H. Online Alerts
Automatic Alerts: We may automatically send you email and/or text alerts based on your preferences when certain changes or other events occur such as when you change your password (“Automatic Alerts”). These Automatic Alerts help us to protect the security of your Custodial Services.
Subscription Alerts: You may choose to sign up to receive certain email and/or text alerts related to your Custody Account such as when a Delivery has occurred. (“Subscription Alerts” and together with Automatic Alerts, “Alerts”).
The following apply to both Automatic Alerts and Subscription Alerts:
- While we do our best to provide timely Alerts with accurate information, you understand and agree that your Alerts may be delayed or prevented by a variety of factors that are outside our control. We do not guarantee the delivery or the accuracy of Alerts. We are not liable for any delays, failure to deliver, or misdirected delivery of any Alert; for any errors in the content of an Alert; or for any actions taken or not taken by you or a third party in reliance on an Alert.
We do not include your password or full account number in Alerts. You acknowledge and agree that Alerts are sent to you without being encrypted and that they may include your name and some information about your Custody Account. Anyone with access to your email, if sent by email, or phone, if sent by text, will be able to view the content of these Alerts.
We provide all Alerts as a courtesy to you, and they are for informational purposes only. We reserve the right to terminate Alerts at any time without prior notice to you.
I. Text Messages, Calls and/or Emails to You
J. Equipment and Software Requirements
You are responsible for obtaining, maintaining, and operating your own equipment used to access and use the Custodial Services. We will not be responsible for any failure or errors resulting from the malfunction of your equipment. We support non-beta versions of browsers and platforms for accessing the Custodial Services via our website.
Representations, Warranties, and Covenants
You represent, warrant, and covenant, which representations, warranties, and covenants are continuing and are deemed to be reaffirmed each time you initiate a Withdrawal Instruction or Deliver a Supported Asset to your Custody Account, that:
- If you are an individual acting on your own behalf, that you are at least 18 years old, you have the legal capacity to enter into this Custody Agreement, and you agree to be legally bound by the terms and conditions of this Custody Agreement.
- If you represent a legal entity, that (i) you are authorized to act on behalf the legal entity and that all your actions taken on the Custody Account are on behalf of the legal entity and will be binding on the legal entity; and (ii) that the legal entity is duly organized and validly existing under the laws of its jurisdiction of organization or incorporation and, if relevant, in good standing
- You have the power to make any Withdrawal Instructions, initiate Settlement Transactions, and to perform your obligations under this Custody Agreement.
- You are not, and no recipient of Custodial Assets pursuant to any Custody Account Transaction is, (i) subject to any sanctions programs administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, or any other governmental entity or governing body with the power to impose sanctions; or (ii) located, organized, or a resident of a country or territory that is, or whose government is, subject to sanctions by OFAC or any other governmental entity or governing body with the power to impose sanctions.
- You either own or possess lawful authorization to transact with all Assets involved in the Custody Account Transactions.
- You will not use the Custodial Services for any illegal activity, including without limitation, illegal gambling, money laundering, fraud, and the financing of terrorism or other violent activities.
FV Bank represents, warrants, and covenants, which representations, warranties, and covenants, are continuing and are deemed to be reaffirmed each time we process a Custody Account Transaction, that:
- FV Bank is duly organized, validly existing and in good standing under the laws of the Commonwealth of Puerto Rico, 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.
- FV Bank has the power to execute and deliver this Custody Agreement and to satisfy any Custody Account Transaction instruction you submit, and to perform our obligations under this Custody Agreement.
- FV Bank will safekeep the Custodial Assets and segregate data of all Custodial Assets from both the (i) property of FV Bank, and (ii) recorded assets of other customers of FV Bank.
- FV Bank is a custodian of the Custodial Assets stored by you in the Custody Account, and FV Bank has no right, interest, or title in such Custodial Assets, and will not reflect such Custodial Assets as an asset on the balance sheet of FV Bank, except as may be required by regulatory bodies in specified accounting reports.
- FV Bank may not grant a security interest in your Custodial Assets held in your Custody Account. FV Bank will not, directly or indirectly, lend, pledge, hypothecate or rehypothecate any Custodial Assets without you accepting an agreement for FV Bank to do so.
FV Bank Obligations
FV Bank will use commercially reasonable efforts in performing its obligations under this Custody Agreement. Subject to the terms of this Custody Agreement, FV Bank will not be responsible for any loss or damage suffered by you because of FV Bank performing such duties unless the loss or damage results from an act of fraud, willful default, or gross negligence of FV Bank. FV Bank will not be responsible for the title, validity or genuineness of any of the Custodial Assets (or any evidence of title thereto) received or delivered by it pursuant to this Agreement.
You agree that unless expressly provided for in this Custody Agreement, including as we may revise it from time to time, that we will not support any other functionality of Supported Assets, including, but not limited to, staking, providing liquidity for liquidity pools, governance, smart contract capabilities, and any other uses.
You acknowledge that in the event of a market disruption or other event, we may, in our sole discretion, suspend all access to our Custodial Services, and/or prevent you from initiating or completing any Custody Account Transactions via our Custody Portal. We are not liable to you for any losses you may suffer if we take such actions, including any losses incurred due to any (“as converted”) price fluctuations in your Custodial Assets. You understand that when we resume Custodial Services, the “as converted” market price for your Custodial Asset may differ from the price for such assets before the market disruption or other event.
FV Bank will keep timely and accurate records as to any Custodial Assets, including regarding the Delivery, Settlement, and withdrawal thereof.
You understand that we may perform any of our duties or obligations under this Custody Agreement through affiliates, vendors, subcontractors, or agents, on such terms and conditions as we, in our sole discretion, deem necessary or appropriate to perform such duties or obligations or liabilities.
You agree and understand that we are authorized to provide any information regarding any Custody Accounts or Custodial Assets that is required by us to operate your Custody Account with vendors and affiliates or any law, regulation, or rule now or hereafter in effect, or that may be requested by law enforcement or a governmental or regulatory agency. To the extent permitted by law, we may provide you with notice of any such request for information.
You agree and understand that we have no duties or responsibilities with respect to any Custody Account or Assets except such duties and responsibilities as are specifically set forth in this Custody Agreement, and no covenant or obligation shall be implied against us in connection with this Custody Agreement.
It is your sole responsibility to (i) determine whether, and to what extent, any taxes, assessments, duties, and other governmental charges apply to any deposits or withdrawals you conduct through the Custodial Services, and (ii) to pay the correct amounts, including any interest or penalty owed, to the proper authority. Your failure to do so constitutes a violation of this Custody Agreement.
You agree to promptly inform us if (i) you are the target of any laws administered by OFAC or any other governmental entity imposing economic sanctions; (ii) you are or become located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity with the authority to impose economic sanctions; or (iii) you become aware that you, any Asset, or any transaction or recipient in a transaction involving an Asset, are or become the target of any investigation. Your failure to do so constitutes a violation of this Custody Agreement.