These Terms set out the terms and conditions of your access to the Services (as defined below). The legal entity you are contracting with for the purpose of the provision of Services is LD Software Corporation, a company incorporated in the Republic of Panama. In these Terms, LD Software Corporation is referred to as “Swell”, "Company", "we", "us," or "our".
As used throughout these Terms, the following terms have the following meanings:
means a digital asset or cryptocurrency, such as ETH, which is based on the cryptographic protocol of a computer network that may be (i) centralised or decentralised, (ii) closed or open-source, and (iii) used as a medium of exchange and/or store of value.
means ether, the native cryptocurrency of Ethereum.
means the Ethereum network, an open-source, public, blockchain-based distributed computing platform featuring smart contract (scripting) functionality.
“Force Majeure Event”
has the meaning given to it in Part A, Section 3.7.
means Maximal extractable value (MEV), being the maximum value that can be extracted from block production in excess of the Staking Rewards by including, excluding, and changing the order of transactions in a block.
means Staking Rewards minus any Slashing and Penalties assessed, if applicable.
“Platform Commission Rate”
means the commission rate charged by the Company in connection with the use of the Platform for the provision of Staking Services, or any other services, as set forth in https://docs.swellnetwork.io/swell/system-design/rewards-and-distribution/rewards-and-fees. The Company may adjust the commission rate at its sole discretion and without notice.
means the Net Revenue multiplied by the applicable Platform Commission Rate.
has the meaning given to it in Part A, Section 1.1.
means the consequence of breaking very specific protocol rules when submitting attestations or block proposals which could constitute attacks on the chain; means losing a potentially significant amount of stake and being ejected from the protocol.
means the consequence for validators that do not fulfil their assigned duties and are penalised by losing small amounts of stake.
means the collection of server hardware and software required to maintain a current copy of the blockchain for a Supported Digital Asset and to produce or validate new blocks on a Supported Protocol.
means all Supported Digital Assets generated by operating Staking Nodes, including, but not limited to, block rewards, endorser rewards, transaction fees, MEV and any other direct payments as a result of operating a Staking Node.
means the liquid staking service provided by the Company, as better described in Part B, Section 1.1.
means users of the Platform who utilise the Staking Services.
“Supported Digital Assets”
means selected Digital Assets as may be determined by the Company from time to time. The list of currently Supported Digital Assets is available at https://docs.swellnetwork.io/faq/swell-network.
means selected proof-of-stake protocol(s) as may be determined by the Company from time to time. The list of currently Supported Protocols is available at https://docs.swellnetwork.io/faq/swell-network.
has the meaning given to it in Part A, Section 3.1;
“Swell Service Provider”
each of the Company, its affiliates, service providers, their respective officers, directors, agents, joint venturers, employees and representatives.
means the complete or partial return of staked Digital Assets, as better described in Part B, Section 1.5.
means the Net Revenue attributable to the Staking User’s Supported Digital Assets staked through the Platform, less the Platform Commission.
means the Shanghai / Capella (Shapella) Ethereum upgrade, which may be significantly delayed, delayed indefinitely, or abandoned entirely.
PART A: GENERAL TERMS AND CONDITIONS
This Part A of these Terms applies generally to all users of the Platform.
- SWELL PLATFORM
The Company operates the Website and the Swell protocol, which is a liquid staking protocol (comprised of a series of smart contracts) which allows users to stake Supported Digital Assets in order to earn staking rewards (collectively, the “Platform”).
- LEGALLY BINDING AGREEMENT
You agree and understand to be legally bound by the terms and conditions set forth in these Terms of Services (these "Terms") and that these Terms governs your use of the Platform and the services we provide. By clicking "I AGREE," when accessing the Platform, you agree and understand to be legally bound by the terms and conditions of these Terms and agree and understand that you have received the disclosures set forth herein. If you do not agree to be legally bound by the terms and conditions of these Terms, do not click "I AGREE" and please do not visit, access, or use the Platform in any capacity or manner. Whether or not you click "I AGREE," if you use the Platform in any capacity or manner, you agree, by virtue of any such action, to be legally bound by the terms and conditions of these Terms (including any changes or amendments) in their entirety.
- USING OUR SERVICES
- By accessing the Website, interacting with any smart contracts on the Platform, you have affirmed that you are at least 21 years old, have the legal capacity to enter into these Terms by and between you and the Company, and agree to be legally bound by these Terms in their entirety.
- In the event of a revision to these Terms, transactions that you or others have already undertaken, and benefits, could be affected by the terms and conditions of such revisions to these Terms. You should, therefore, read these Terms from time to time, and your continued acceptance of these Terms (as revised from time to time) is a condition of logging into the Platform and/or using the services on the Platform. If you do not agree to be legally bound by these Terms and all of its terms and conditions (as amended from time to time), you should cease to access the Website.
- Kindly keep a copy of these Terms. We reserve the right to change any of these terms and conditions at any time, and in such event the latest version of these Terms will be published by the Company on the Website.
- SERVICE MODIFICATIONS
You agree and understand that we may modify part of or all of the Platform or the services to be provided on the Platform without notice.
- MAINTENANCE, DOWNTIME OR STOPPAGE OF SERVICES
You agree and understand that part of or all of the Platform or the Supported Protocol may be periodically unavailable during scheduled maintenance or unscheduled downtime or other stoppage of services (collectively, "Stoppages"). You agree and understand that the Company is not liable or responsible to you for any inconvenience or damage to you as a result of Stoppages.
- CONDITIONS OF USE
- COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS
Your use of and conduct on the Platform is subject to the laws, regulations, rules, guidelines and notices of any applicable governmental or regulatory authority (the "Applicable Laws and Regulations") including the laws of Panama and the relevant jurisdiction in which you are based. You unequivocally acknowledge and agree that by using the Platform in any capacity, you acknowledge and agree to act in compliance with the Applicable Laws and Regulations.
- ACCESSING THE SWELL PLATFORM; ABUSIVE BEHAVIOUR
You agree and understand that you are not allowed to enter any restricted area of any computer or network of the Platform or any Swell Service Provider under any circumstances, or perform any functions that are not authorised by these Terms. You shall not use the Website in any manner that could damage, disable, overburden, impair or otherwise interfere with any of the Company’s server, or the networks connected to any Company server, or interfere with any other party’s access and use of the Website (including, but not limited to, the deployment of viruses and denial of service attacks).
You agree not to engage in any activity that seeks to defraud the Company or any other person or entity, including, but not limited to, providing any false, inaccurate, or misleading information in order to unlawfully obtain the property of another.
- UNFAIR COMPETITION
You agree not to access the Website or use the Services in order to build a similar or competitive site, services, protocol or software.
- PROPRIETARY RIGHTS AND LIMITATIONS ON USE
The Platform is proprietary in nature and is owned by the Company. The Platform, as well as all material on the Website is protected by copyright and other intellectual property laws. You agree and understand not to modify, copy, reproduce, retransmit, distribute, sell, publish, broadcast, create derivative works from, or store the Platform’s source code or similar proprietary or confidential data or other similar information provided via the Platform, without our express prior written consent. You may not use the Platform for any unlawful purpose.
We hereby grant you a non-assignable and non-exclusive personal, worldwide, royalty-free license to use the Platform in accordance with these Terms. All other uses are prohibited. All rights in and to the Platform, and not granted herein, are reserved.
Swell, the Swell logo and all intellectual property in connection with the Platform or the Company (whether registered or unregistered) (the "Swell Marks") are proprietary marks licensed to the Company and protected by applicable trademark laws. Nothing contained in these Terms should be construed as granting any license to or right to use any of the Swell Marks displayed here without our express written consent. Any unauthorised use of the Swell Marks is strictly prohibited. You may not use any of the Swell Marks in connection with the creation, issuance, sale, offer for sale, trading, distribution, solicitation, marketing, or promotion of any investment products (e.g., Digital Assets, fiat currency, securities, commodities, investment or trading products, derivatives, structured products, investment funds, investment portfolios, commodity pools, swaps, securitisations or synthetic products, etc.), including where the price, return, and/or performance of the investment product is based on, derived from, or related to another underlying product, without a separate written agreement with us. We may use technology that is the subject of one or more pending patent applications.
When you access the Platform, we may make use of the standard practice of placing tiny data files called cookies, flash cookies, pixel tags, or other tracking tools (herein, "Cookies") on your computer or other devices used to visit the Platform. Cookies are small bits of information that are automatically stored on the web browser of your device that can be retrieved by us. The type of information we collect includes, but is not limited to, uniquely identifying visitor information and information related to your usage preferences. We use these technologies to help us recognise you as a user, collect information about your use of the Platform to better customise our services and content for you, and collect information about your computer or other access devices to (i) ensure compliance with our Compliance Program and (ii) ensure that your account security has not been compromised by detecting irregular or suspicious account activities. By using the Platform, you agree and understand that we may collect and/or transmit any data collected to any Swell Service Provider, such as analytics providers, which may also make use of such technologies described above. If you block or delete cookies, we may not be able to provide you with all of the services on the Platform. If you do not consent to the placing of Cookies on your device, please do not visit, access, or use the Platform.
- THIRD-PARTY SERVICE PROVIDERS
- THIRD-PARTY WEBSITES
The Platform may link to other websites operated by or with content provided by third parties, and such other websites may link to our website. You agree and understand that the Company has no control over any such other websites or their content and will have no liability arising out of or related to such websites or their content. The existence of any such links does not constitute an endorsement of such websites, their content, or their operators. The Company is providing these links to you only as a convenience.
- THIRD-PARTY INFORMATION ACCURACY AND USAGE
An information provider is any company or person who directly or indirectly provides us with information ("Information Provider"). Such information could include, but is not limited to, overall market data, quotations from other exchanges, markets, dealers, validators and/or miners of Digital Assets. The third-party information we may provide through the Platform has been obtained from Information Providers and sources we believe are reliable; however, we cannot guarantee that this information is accurate, complete, timely, or in the correct order. The information belongs to the Information Providers. You may use this information only for your own benefit. You may not reproduce, sell, distribute, circulate, create derivative works from, store, commercially exploit in any way, or provide it to any other person or entity without our written consent or the consent of the Information Provider, if required.
You agree and understand that the information and services provided by the Company are not provided to, and may not be used by, any individual or institution in any jurisdiction where the provision or use thereof would be contrary to any Applicable Laws and Regulations, the rules or regulations of any governmental authority or regulatory organisation, or where the Company is not authorised to provide such information or services. The Platform may not be available in all jurisdictions.
- FORCE MAJEURE
You agree and understand that in no event shall we or any Swell Service Provider be liable for delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our or any Swell Service Providers’ reasonable control, including but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labour 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 is beyond our reasonable control (“Force Majeure Event”) and shall not affect the validity and enforceability of any remaining provisions.
- LEGAL COSTS
You agree to indemnify us and any Swell Service Provider for actual, reasonable legal costs and expenses directly related to your account or any related account that are a result of any regulatory inquiry, legal action, litigation, dispute, or investigation whether such situations occur or are anticipated, that arise or relate to you or your use of the Platform.
- ENTIRE AGREEMENT
These Terms, or your rights and obligations hereunder, may not be transferred by you, but may be assigned by us without restriction (without have to seek your prior consent). Any attempted transfer or assignment by you in violation hereof shall be null and void. These Terms shall be binding and inure to the benefit of the parties hereto, our successors, and permitted assigns.
- RELATIONSHIP OF THE PARTIES
You agree and understand that nothing in these Terms shall be deemed to constitute, create, imply, give effect to, or otherwise recognise a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein. Except for the indemnity and exculpation provisions herein, nothing expressed in, mentioned in, or implied from these Terms is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms to enforce any of its terms which might otherwise be interpreted to confer such rights to such persons, and these Terms and all representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the exclusive benefit of you and us.
You agree and understand that if any provision of these Terms, or application thereof, shall be determined to be invalid or unenforceable under any rule, law, or regulation or by any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law. You further agree and understand that the validity of or enforceability of any other provision of these Terms unaffected by such invalidity or unenforceability (or of such provision, to the extent its application is not invalid or unenforceable) shall remain in full force and effect.
All provisions of these Terms which by their nature extend beyond the expiration or termination of these Terms, including, without limitation, sections pertaining to suspension or termination, debts owed, general use of the Platform, disputes with us, and general provisions, shall survive the termination or expiration of these Terms.
Section headings in these Terms are for convenience only, and do not govern the meaning or interpretation of any provision of these Terms.
- ENGLISH LANGUAGE PREVAILS
Notwithstanding any other provision of these Terms, any translation of these Terms is provided for your convenience. The meanings of terms, conditions, and representations herein are subject to their definitions and interpretations in the English language. In the event of conflict or ambiguity between the English language version and translated versions of these terms, the English language version shall prevail. You acknowledge that you have read and understood the English language version of these Terms.
- WRITTEN NOTICE
If we send an email to the email address on record, you agree and understand that this constitutes ‘written notice’ from us to you. If you email firstname.lastname@example.org, this constitutes ‘written notice’ from you to us. For all notices made by email, the date of receipt is considered to be the date of transmission.
- NON-WAIVER OF RIGHTS
These Terms shall not be construed to waive rights that cannot be waived under Applicable Laws and Regulations, including applicable state money transmission laws in the state where you are located. In addition, our failure to insist upon your strict compliance with any term or provision of these Terms shall not be construed as a waiver for you to not comply with such term or provision.
If you would like to lodge a complaint, please contact our Customer Support Team by email at email@example.com.
- SUBMISSIONS TO SWELL
We cannot agree to obligations of confidentiality or nondisclosure with regard to any unsolicited information you submit to us, regardless of the method or medium chosen. By submitting information or materials to us or any Swell Service Provider, you or anyone acting on your behalf, agree that any such information or materials will not be considered confidential or proprietary.
We do not provide any facility for sending or receiving private or confidential electronic communications. You should not use the Platform to transmit any communication for which you intend only you and the intended recipient(s) to read. Notice is hereby given that all messages and other content entered using the Platform can and may be read by us, regardless of whether we are the intended recipients of such messages. Nevertheless, access to messages and other content will be accessible only by employees and Swell Service Providers that reasonably need such access.
- RESTRICTED TERRITORIES
The services we provide are subject to international export controls and economic sanctions requirements. By staking Digital Assets on the Protocol, you represent and warrant that your use of the Digital Assets comports with those requirements. Without limiting the foregoing, you may not stake Digital Assets on the Platform or access the Platform or any of the Services if you (or any of your subsidiaries, any director or officer, or any employee, agent, or affiliate as the case may be) or any person having a direct or indirect beneficial interest in you or any Digital Assets being acquired by you, or any person for whom you are acting as agent or nominee in connection with any Digital Assets being acquired by you (i) are the subject of any sanctions administered or enforced by any country or government or international authority, including the US Department of the Treasury’s Office of Foreign Assets Control, the US Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury (collectively, "Sanctions"), or (ii) is located, organised, citizen or resident in a country or territory that is, or whose government is, the subject of Sanctions (including without limitation Belarus, Central African Republic, Cuba, Democratic Republic of Congo, Ethiopia, Iran, Iraq, Lebanon, Libya, Myanmar, North Korea, Russia, the regions of Crimea, Donetsk and Luhansk, Sudan, Syria, Venezuela, Yemen and Zimbabwe), or (iii) is located, organised, citizen or resident in the United States of America, Canada, and the People's Republic of China.
If you are a person from a Restricted Territory, do not attempt to access or use the Platform or the Services. Use of a virtual private network (e.g., a VPN), provision of false or misleading documentation, or other means by persons from Restricted Territories to access or use the Platform or the Services is prohibited.
For the purpose of these Terms, Restricted Territories shall mean the countries or territories subject to sub-sections 4.1(ii) and (iii) above.
- NO ADVICE; NON-SOLICITATION
You agree and understand that the Company and the Swell Service Providers do not provide legal, tax, or investment advice, and to the extent you deem necessary, you will consult with qualified professionals in your own jurisdiction prior to using the Platform.
You agree and understand that all instructions received through and by the Platform are considered unsolicited, which means that you have not received any investment advice from us or any Swell Service Provider. You also agree and understand that you have not and do not expect to receive any investment advice from us nor any of our affiliates. In addition, you agree and understand that your perusal of the Website and/or any material thereon does not constitute any solicitation or investment advice.
- DISCLAIMER OF WARRANTIES
For the avoidance of doubt, neither we nor any Swell Service Provider are giving investment advice, tax advice, legal advice, or other professional advice by allowing you to use the Platform and the services we or any Swell Service Provider provide, including, but not limited to, the ability to purchase, sell, or store Digital Assets. In addition, neither we nor any Swell Service Provider recommend, or endorse that you purchase or sell or stake Digital Assets, including ETH or any other asset, or that you make any investment. Before engaging in any trading or investment activity, you should always consult a qualified professional.
THE SERVICES WE AND SWELL SERVICE PROVIDERS PROVIDE ARE PROVIDED TO YOU ON A STRICTLY "AS IS," "WHERE IS," AND "WHERE AVAILABLE" BASIS. NEITHER WE NOR ANY SWELL SERVICE PROVIDER REPRESENT OR WARRANT TO THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PLATFORM OR THE INFORMATION CONTAINED THEREIN OR SERVICES CONTAINED THEREON.
- DISCLAIMER OF LIABILITY
EXCEPT TO THE EXTENT REQUIRED BY LAW, NEITHER WE NOR ANY SWELL SERVICE PROVIDER SHALL BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR LOSSES (EVEN IF WE AND/OR ANY SWELL SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF) IN CONNECTION WITH THESE TERMS, YOUR USE OR ATTEMPTED USE OF THE PLATFORM, OR ANY OF THE INFORMATION, SERVICES OR TRANSACTIONS CONTEMPLATED BY THESE TERMS.
IN NO EVENT SHALL WE OR ANY SWELL SERVICE PROVIDER BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY RESULTING FROM YOUR USE OF THE PLATFORM OR ANY SERVICES PROVIDED BY US OR ANY SWELL SERVICE PROVIDER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS CAUSED IN WHOLE OR IN PART BY ANY INACCURACIES OR INCOMPLETENESS, DELAYS, INTERRUPTIONS, ERRORS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF ANY SWELL SERVICE PROVIDER OR CONTINGENCIES BEYOND OUR OR ANY SWELL SERVICE PROVIDERS’ CONTROL IN PROCURING, COMPILING, INTERPRETING, COMPUTING, REPORTING, OR DELIVERING THE PLATFORM, THE SERVICES THEREON OR THE INFORMATION THEREIN. IN NO EVENT SHALL WE OR ANY SWELL SERVICE PROVIDER BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON, OR IN CONNECTION WITH YOUR USE OF THE PLATFORM, THE SERVICES THEREON OR THE INFORMATION THEREIN.
THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO ANY DAMAGE OR INTERRUPTIONS CAUSED BY ANY COMPUTER VIRUSES, SPYWARE, SCAMWARE, TROJAN HORSES, WORMS, OR OTHER MALWARE THAT MAY AFFECT YOUR COMPUTER OR OTHER EQUIPMENT, OR ANY PHISHING, SPOOFING, DOMAIN TYPOSQUATTING, OR OTHER ATTACKS, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORISED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOUR PROBLEMS, OR ANY FORCE MAJEURE EVENT. NEITHER WE NOR ANY SWELL SERVICE PROVIDER GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE PLATFORM.
NOTWITHSTANDING ANY OF THE PROVISIONS HEREIN, IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY OR ANY SWELL SERVICE PROVIDER (JOINTLY) FOR ANY DIRECT OR INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR LOSS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER LEGAL OR EQUITABLE BASIS, IN CONNECTION WITH THESE TERMS, YOUR USE OR ATTEMPTED USE OF THE PLATFORM, OR ANY OF THE INFORMATION, SERVICES OR TRANSACTIONS CONTEMPLATED BY THESE TERMS, EXCEED (A) ANY PLATFORM COMMISSION PAID BY YOU TO THE COMPANY IN THE PRECEDING 3-MONTHS OF SUCH CLAIM; OR (B) WHERE NO PLATFORM COMMISSION WAS PAID DURING THE SAID PERIOD, THE SUM OF US$100.
IF THIS DISCLAIMER OF LIABILITY SECTION IS DEEMED TO CONFLICT WITH ANY OTHER SECTION OF THESE TERMS, THIS DISCLAIMER OF LIABILITY SECTION SUPERSEDES THE OTHER SECTION.
- REASONABLE CARE
You agree that we cannot be held responsible for any failure or delay to act by any Swell Service Provider, or any other participant that is within the time limits permitted by these Terms or prescribed by law, or that is caused by your negligence.
You further agree that neither we nor any Swell Service Provider can be held responsible for any "System Failure" (defined as a failure of any computer hardware or software used by the Platform, a Swell Service Provider, or any telecommunications lines or devices used by the Platform or a Swell Service Provider), or Stoppages, which prevents us from fulfilling our obligations under these Terms, provided that we or the relevant Swell Service Provider (as applicable) used commercially reasonable efforts to prevent or limit such System Failures, or Stoppages. You also agree that neither we nor any Swell Service Provider can be held responsible for any other circumstances beyond our or such Swell Service Providers’ (as the case may be) reasonable control.
We are unable to investigate, represent or endorse the accuracy, legality, legitimacy, validity or reliability of any information provided on the Website. The information is provided by third parties and the Website only communicates information provided and created by third parties such as virtual currency exchanges, advertisers, content partners, software developers, publishers, marketing agents, employees, users, resellers. We have no control over the accuracy of such information on our pages, and material on the Website may include technical inaccuracies or typographical errors. We make no guarantees, nor can we be responsible for any such information, including its currency, content, quality, copyright compliance or legality, or any resulting loss or damage. All of the data on the Website (including but not limited to prevailing prices and availability of any Digital Asset, product or service or any feature thereof, is subject to change without notice by the party providing such Digital Asset, product or service.
References that we make to any names, marks, products or services of third parties or hypertext links to third party sites or information do not constitute or imply our endorsement, sponsorship or recommendation of the third party, of the quality of any Digital Assets, product or service, advice, information or other materials displayed, purchased, or obtained by you in connection with such reference.
We use endeavour to provide you with reliable service. From time to time, interruptions, errors or other deficiencies in service may occur due to a variety of factors, some of which are outside of our control. These factors can contribute to delays, errors in service, or system outages.
- GENERAL INDEMNITIES
- In no event shall we or any Swell Service Provider be liable for any act, omission, error of judgment, or loss suffered by you in connection with these Terms or your use or attempted use of the Platform.
- You agree to waive any statute or doctrine applicable to you which has the effect of excluding from the scope of a general release claims which a creditor does not know or suspect to exist in his or her favour at the time of agreeing to such general release.
- GOVERNING LAW AND DISPUTE RESOLUTION
- GOVERNING LAW
These Terms, your use of the Platform, your rights and obligations, and all actions contemplated by, arising out of, or related to these Terms shall be governed by the laws of the laws of Panama, as if these Terms were a contract wholly entered into and wholly performed within Panama. YOU AGREE THAT ALL STAKING TRANSACTIONS ACCORDING TO THE PROVISIONS OF THESE TERMS SHALL BE DEEMED TO HAVE OCCURRED IN [PANAMA] AND BE SUBJECT TO THE LAWS OF [PANAMA] WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
- DISPUTE RESOLUTION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS CERTAIN PROVISIONS, SUCH AS A BINDING ARBITRATION SECTION AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS. THIS SECTION REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Each party (i) waives all its respective right(s) to have any and all disputes, claims, suits, actions, causes of action, demands or proceedings (including any question regarding the existence, validity or termination of a contractual relationship between the Company and you)(collectively, "Disputes") arising from or related to these Terms resolved in a court, and (ii) waive all its respective right(s) to have any Disputes heard before a court. Instead, each party shall arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
Any Dispute arising out of or related to these Terms is personal to you and will be resolved solely through individual arbitration, and in no circumstances shall be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an entity attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Each party will notify the other party in writing of any Dispute within thirty (30) days of the date it arises, so that the Parties can attempt in good faith to resolve the Dispute informally. Notice to the Company shall be sent by e-mail to the Company at firstname.lastname@example.org. Notice to you shall be either posted on the Website or, if available, will be sent by email to your email on record. Your notice must include (i) your name, postal address, email address and telephone number, (ii) a full and sufficient description of the nature or basis of the Dispute, and (iii) the specific relief that you are seeking.
If you and the Company cannot agree how to resolve the Dispute within thirty (30) days after the date the notice is received by the applicable party, then such Dispute shall be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
The arbitrator does not have the authority to conduct a class arbitration or a representative or class action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
If any term, clause or provision of this section is held invalid or unenforceable, it will be so held to the minimum extent applicable and required by law, and all other terms, clauses and provisions of this section will remain valid and enforceable. Further, the waivers set forth in this section are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
You agree that this section of these Terms has been included to rapidly and inexpensively resolve any disputes with respect to the matters described herein, and that this section shall be grounds for dismissal of any court action commenced by you with respect to a dispute arising out of such matters.
A printed version of these Terms shall be admissible in judicial or administrative proceedings.
PART B: STAKING SERVICES TERMS AND CONDITIONS
This Part B of these Terms apply to the users who use the Staking Services (“Staking Users”) and govern their relationship with the Company in relation to such Staking Services.
- STAKING SERVICE
- Liquid Staking.
- The Platform allows users to pool their Supported Digital Assets through the Platform and collectively earn Staking Rewards generated from the operation of Staking Nodes by the Company and/or the Swell Service Providers.
- The Staking User deposits Supported Digital Assets in a staking pool by interacting with the Platform’s smart contract. The smart contract automatically mints a commensurate amount of fungible digital tokens with the prefix “sw-” (e.g. swETH) for every 1 Supported Digital Asset unit staked (“sw-Liquidity Tokens”). The sw-Liquidity Tokens are automatically deposited to the applicable digital address used by the Staking User to interact with the Platform’s smart contract.
- In consideration for the provision of the Staking Services and the Platform, the Company reserves the right to charge a Platform Commission. The Staking User shall be entitled to receive the User’s Share, which is net of the Platform Commission.
- Title to staked Supported Digital Assets. Title to Supported Digital Assets staked with the Company shall at all times remain with the Staking User and shall not transfer to the Company, and are not subject to claims of the creditors of the Company. Note sw-Liquidity Tokens are non-custodial and remain under the control of the Staking User and can be transferred via secondary permissionless liquidity markets at any time.
- sw-Liquidity Tokens.
- sw-Liquidity Tokens represents ownership of the Supported Digital Asset staked with the Company in accordance with these Terms. sw-Liquidity Tokens entitles the Staking User to all of the economic value and risks of the staked Supported Digital Asset. For the avoidance of doubt, ownership of over Staked Supported Digital Asset remains with the relevant Staking User and are shall not transfer to the Company
- Selling or otherwise transferring sw-Liquidity Tokens transfers ownership of the staked Supported Digital Asset and the right to redeem, and entitles the recipient to the economic value of the staked Supported Digital Asset, subject to these Terms.
- sw-Liquidity Tokens may be compatible with decentralised finance protocols, decentralised apps, or other software or technology provided by third parties.
- Each Staking User further acknowledges and accepts the following risks associated with sw-Liquidity Tokens:
- The Company does not guarantee to any Staking User the value of staked Supported Digital Asset or the value of any Staking Rewards.
- The Company is not responsible for any loss or decrease in the value of the Staking User’s staked Supported Digital Asset or associated Staking Rewards.
- Price of sw-Liquidity Tokens may be volatile and may deviate from the price of the Supported Digital Asset or Supported Digital Asset staked on other platforms/ protocols.
- Neither the Company nor any Swell Service Provider is responsible for or under any obligation to maintain liquidity of sw-Liquidity Tokens in the secondary market.
- Staking Users should exercise caution when using third-party protocol, software or technology in relation to their sw-Liquidity Tokens. The Company does not control and is not responsible for the security or functionality of any third-party protocol, software or technology which purports to be compatible with sw-Liquidity Tokens and is not responsible for any losses of sw-Liquidity Tokens due to the failure of such third-party protocol, software or technology.
- Applicable laws and regulations or changes in regulatory environments may result in restrictions or limitations of the minting of and/or associated services with sw-Liquidity Tokens.
- A Staking User may request to withdraw all or any part of its staked Supported Digital Assets following some reasonable time after the applicable Relevant Upgrade.
- When un-staking, the Staking User selects the quantity and type of sw-Liquidity Tokens to be burnt and redeemed, and the corresponding amount of staked Supported Digital Assets and the associated User’s Share shall be released to the applicable digital address used by the Staking User to interact with the Platform’s smart contract.
- The Platform aims to process all unstaking requests promptly contingent on the limitations of the underlying blockchain, including withdrawal queues.
- The Company may, from time to time, impose unstaking limits, or pause unstaking entirely, based on frequency or volume of requests, slashing penalties or for whatever reason or however The Company deems appropriate in its sole discretion.
- Governance and Voting. Certain Supported Protocols may offer voting or community governance rights to stakers based on the amount of Supported Digital Assets staked. The Company retains absolute discretion in exercising all voting and governance rights associated with the staked Supported Digital Assets.
- Forks and Airdrops. Staking Users may be entitled to additional assets associated with their staked Supported Digital Assets as a result of any applicable (i) network fork and/or (ii) airdrop or similar distribution of Digital Assets, that is supported by the Platform; PROVIDED ALWAYS that the Company retains sole discretion and has no obligation to support any particular forks, airdrops or similar distribution and such support remains in all instances subject to the Terms.
- Compliance with Sanctions / Applicable Laws and Regulations. The Company and/or the Swell Service Providers are required to comply with Sanctions and are prohibited from providing services or entering into relationships with certain individuals and institutions. In such event, the Company and/or the relevant Swell Service Providers may do all things necessary or expedient to comply with such Sanctions and/or with Applicable Laws and Regulations, including: (i) terminating this agreement; (ii) returning the staked Supported Digital Assets to the original digital address of the Staking User or to an address specified by authorities; (iii) require the Staking User to unstake Supported Digital Assets within a certain period of time; (iv) suspending the accrual of any User’s Share; or (v) suspending conversion of sw-Liquidity Tokens. Neither the Company nor the Swell Service Providers are responsible for any losses, whether direct or indirect, that the Staking User may incur as a result of our complying with Applicable Law and Regulations, the guidance or direction of any regulatory authority or government agency, or any writ of attachment, lien, levy, subpoena, warrant, or other legal order.
- STAKING USER REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS; ACKNOWLEDGEMENT AND CONFIRMATIONS OF RISKS
- The Staking User represents, warrants and undertakes to the Company as follows:
- Source of Digital Assets. All Supported Digital Assets which it utilises for the Staking Services, are not the direct or indirect proceeds of any criminal or fraudulent activity.
- Knowledge of Blockchain technology and Digital Assets. The Staking User has a good working knowledge of the usage and features of Digital Assets, including, without limitation, Ethereum, the Ethereum ERC-20 and ERC-721 token standards, and the relevant Supported Protocol / Supported Digital Asset which such Staking User has staked through the Platform.
- Accurate Instructions. The Staking User has exercised due care and diligence when interacting with the Platform and all instructions issued (such as the type and quantity of Supported Digital Assets to stake or unstake (as the case may be)) are accurate and intentional.
- Taxes. The Staking User shall determine whether, and to what extent, any taxes apply to any transactions conducted through the Platform, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.
- The Staking User further agrees and acknowledges as follows:
- Interactions with smart contracts. Interactions with the smart contracts on the Platform, once approved by the Staking User, and verified on a digital ledger or blockchain network are generally immutable and effectively irreversible.
- No Control over Supported Protocols The Company does not own or control the underlying blockchains, software protocols, or cryptographic protocols of the Supported Digital Assets which govern the operation of Digital Assets. These underlying protocols are generally open-source and anyone can use, copy, modify, and distribute them. The Staking User confirms, agrees and acknowledges that the Company (i) is not responsible for the operation of the underlying protocols, and (ii) does not make any representations or warranties regarding their security, functionality, or availability.
- Slashing and Penalties. By staking Supported Digital Assets, the Staking User acknowledges and accepts that such assets are exposed to the risk of “slashing” and “penalties” by the relevant Supported Protocol if the Company and/or the relevant Swell Service Providers act in a manner that results in a reduction of Net Revenue and/or Staking Rewards.
- ETH Staking. In relation to the staking of ETH on the Platform:
- The Staking User will not be able to withdraw or access or use its staked ETH in any way until a major network upgrade allowing validators to withdraw staked ETH from the beacon chain consensus layer has taken place (“Relevant Upgrade”).
- The Relevant Upgrade may be significantly delayed, delayed indefinitely, or abandoned. In such events, the Staking User’s staked ETH will remain staked and inaccessible by the Staking User or the Company.
- The Company makes no representation or warranty that the Relevant Upgrade will be successful. If the Relevant Upgrade fails, the Staking User may lose all, or a part of, its staked ETH. Neither the Company nor any Swell Service Provider will be responsible for any ETH lost due to such a failure.
- Estimates only. The Platform may reflect on the Staking User’s dashboard on the Platform, the estimated accrued Staking Rewards and the relevant User’s Share. Such figures are estimates based off of the reward rates announced by the relevant Supported Protocol and the period of time for which the Staking User has staked its Supported Digital Assets. Neither the Company nor any Swell Service Provider, guarantees that the Staking User will receive the relevant User’s Share and that the figures (i) are an estimate only; (ii) may change at any time in the Company’s sole and absolute discretion, and (iii) may be more or less than the actual Staking Rewards received by the Company from the Supported Protocol(s).
- Nature of Digital Assets. The nature of Digital Assets may lead to an increased risk of fraud or cyber-attack, and may mean that technological difficulties experienced by the Platform may prevent the access to or use of your Digital Assets.
- Reliance on Experimental Technology. Transactions on the Platform rely on smart contracts stored on various blockchains, cryptographic tokens generated by the smart contracts, and other nascent software, applications and systems that interact with blockchain-based networks. These technologies are experimental, speculative, inherently risky, and subject to change. Among other risks, bugs, malfunctions, cyberattacks, or changes to the applicable blockchain (e.g., forks) could disrupt these technologies and even result in a total loss of crypto assets, their market value, or digital funds. The Staking User is solely responsible for the safekeeping of the private key associated with the blockchain address used to interact with the Platform. We assume no liability or responsibility for any such risks. If you are not comfortable assuming these risks, you should not access or engage in transactions using blockchain-based technology.
- Internet Transmission Risks. The Staking User acknowledges that there are risks associated with utilizing an internet-based protocol such as the Platform, including, but not limited to, the failure of hardware, software, and internet connections. The Staking User acknowledges that the Company and the Swell Service Providers shall not be responsible for any communication failures, disruptions, errors, distortions or delays the Staking User may experience when staking via the Platform, howsoever caused.
- No reliance / No Investment Advice. The Staking User is solely responsible for determining whether the relevant Supported Digital Asset or the act of staking such Supported Digital Asset or any related transaction is appropriate for him/her based on its personal investment objectives, financial circumstances and risk tolerance. Notwithstanding anything in these Terms, the Staking User agrees and understands that neither the Company nor the Swell Service Providers owe any responsibility whatsoever for, and shall in no circumstances be liable to the Staking User in connection with, its decisions relating to the use of the Platform. The Staking User agrees and understands that under no circumstances will the operation of the Platform and the use of the Platform by the Staking User be deemed to create a relationship that includes the provision of or tendering of investment advice.
The Staking User is solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks, and that neither the Company nor the Swell Service Providers give advice or recommendations regarding Digital Assets, including the suitability and appropriateness of, holding or staking Digital Assets or sw-Liquidity Tokens. The Staking User agrees and understands that its access and use the Platform / Staking Services is at its own risk; and these Terms are unable to and does not purport to disclose exhaustively all of the risks associated with Digital Assets (including the sw-Liquidity Tokens), the use of the Staking Services / the Platform. The Staking User should, therefore, carefully consider whether such use is suitable for it in light of its circumstances and financial resources.