Custodial Services Agreement
_____________ (“Account Holder,” “you,” “your”) hereby requests and directs that Bridge Trust, Co. (“Trust Company,” “we,” “our”), a Nevada retail trust company (Account Holder and Trust Company each, a “Party”), establish and maintain an account for and in the name of Account Holder (the “Account”) in connection with the Services (as defined in Section 1.1(a) below), and hold as custodian all property deposited to, or collected with respect to, the Account on the terms and conditions of this Custodial Services Agreement (as may be amended or otherwise modified from time to time, and together with any schedules, annexes and exhibits hereto, this “Agreement”).
1. Account Acceptance and Authorized Services.
1.1 Appointment. Account Holder hereby appoints and authorizes Trust Company to provide the Services in accordance with this Agreement, and Trust Company hereby accepts such appointment subject to the Account acceptance process as specified in Section 2.1.
(a) The services that Trust Company will provide include the holding, processing, and acting as custodian of all Custodial Property (as defined in paragraph (b) of this Section) provided from time to time to Trust Company by Account Holder pursuant to this Agreement (the “Services”).
(b) In its sole discretion, Trust Company may custody, on Account Holder’s behalf, property delivered by Account Holder into the possession or control of Trust Company (“Custodial Property”). Custodial Property that Trust Company may accept and hold on Account Holder’s behalf pursuant to this Agreement is limited to Digital Assets (as defined in paragraph (c) of this Section); Custodial Property includes all income associated with Custodial Property, including interest, dividends, proceeds of sale, and all other monies due and collectable attributable to the investment of the Custodial Property.
(c) “Digital Assets” means any digital representation of value that may function as a medium of exchange or medium for investment, and is evidenced on and can be electronically received and stored using distributed ledger technology, as determined by Trust Company from time to time.
1.2 Provision of the Services.
(a) Subject to Account Holder’s completion of the Account acceptance process in accordance with Section 2.1 and so long as Account Holder is in compliance with this Agreement, Trust Company will provide the Services during the Term (as defined in Section 10.1).
(b) In providing the Services, Trust Company will act only upon receipt of direction, instruction, or request submitted by an Authorized Person (as defined in Section 2.2(a)) or through an Authorized Integrator’s platform (either, an “Authorized Instruction”). “Authorized Integrator” means a third party that has entered into: (i) an agreement with Account Holder to provide certain services (“Account Holder Service Provider Agreement”); and (ii) an agreement with Trust Company to allow its customers access to the Services.
(c) Trust Company, in its sole discretion, will determine whether the provision of Services or an Authorized Instruction complies with all applicable federal, state, local, and foreign laws, statutes, ordinances, regulations, rules, executive orders, opinions, agency guidance, interpretive letters, and other official releases or requests of or by any governmental authority (collectively, “Applicable Law”) and may decline any Authorized Instruction, including if: (i) Account Holder is not in compliance with this Agreement; (ii) the Authorized Instruction may violate Applicable Law; or (iii) Account Holder has insufficient unencumbered Custodial Property in the Account available for carrying out the Authorized Instruction.
(d) Trust Company is entitled to rely on any information, data, and documents provided to Trust Company in connection with the Services. Trust Company has no duty to detect errors, or inquire into or investigate the legality, validity, completeness, or accuracy of any information, data, or documents provided to Trust Company in connection with the Services.
(e) Trust Company is entitled to rely on any Authorized Instruction provided in connection with the Services and has no duty to detect errors, or inquire into or investigate the legality, validity, completeness, or accuracy of any Authorized Instruction. Trust Company will only act upon an Authorized Instruction and is hereby released and held harmless by Account Holder for acting upon the Authorized Instruction, including acting upon conflicting, superseded, or otherwise varying Authorized Instructions from multiple Authorized Persons.
(f) Account Holder acknowledges that Trust Company will not monitor Digital Assets for any actions taken by the issuer of such Digital Assets. Such actions may include an issuer instruction requiring the holder of a Digital Asset to transfer it to a certain location. Account Holder is solely responsible for satisfying or responding to any such actions of an issuer.
(g) Trust Company will collect and hold all funds when Custodial Property matures, is redeemed, or sold. Trust Company will hold the proceeds of such transactions until it receives an Authorized Instruction.
(h) Funds received in any currency other than USD may, pursuant to an Authorized Instruction or as needed for Trust Company to carry out an Authorized Instruction or pay Fees (as defined in Section 9(a)), be converted to USD at exchange rates set in Trust Company’s sole discretion.
(i) Trust Company will process the investment and reinvestment of Custodial Property in accordance with Authorized Instructions only so long as, in the sole discretion of Trust Company, such requested investments will not impose an unreasonable administrative burden on Trust Company (which determination by Trust Company shall not be construed as an opinion concerning the prudence or advisability of such investment)
1.3 Storage of Digital Assets. Trust Company will receive Digital Assets for storage by generating Private Keys and their Public Key pairs, with Trust Company retaining custody of such Private Keys. “Private Key” means an alphanumeric string known only to the holder of a Digital Asset, which must be used to engage in a transaction with or in the Digital Asset represented by the corresponding Public Key. “Public Key” means an alphanumeric string on a Blockchain that indicates ownership/possession of a specific amount of a Digital Asset by a specific network participant and is visible to all participants in the Blockchain’s network. Upon receipt, Trust Company will custody the Digital Assets in Account Holder’s name or Account, unless otherwise specified in an Authorized Instruction. Trust Company will be deemed to have received a Digital Asset after the Digital Asset’s receipt has been confirmed on the relevant Blockchain or otherwise ledgered to Trust Company’s satisfaction. “Blockchain” means a software operating a distributed ledger which is maintained by a network of computers, and that records all transactions in a Digital Asset in theoretically unchangeable data packages known as blocks, each of which is timestamped to reference the previous block so that the blocks are linked in a chain that evidences the entire history of transactions in the Digital Asset.
1.4 Forks; Airdrops. (a) If a Fork (as defined in paragraph (b) of this Section) occurs: (i) Trust Company has the right, in its sole discretion, to determine whether to support either Forked Network (as defined in paragraph (b) of this Section); (ii) in connection with determining whether to support a Forked Network, Trust Company may suspend certain operations, in whole or in part, without prior notice, for however long Trust Company deems reasonably necessary in order to take the necessary steps, as determined in its sole discretion, to perform hereunder with respect to supporting or not supporting a Forked Network; (iii) Account Holder agrees that Trust Company will determine, in its sole discretion, whether to support such Forked Network and Account Holder will have no right or claim against Trust Company related to any change in the value of any Digital Asset (whether on a Forked Network or otherwise), including with respect to any period of time during which Trust Company exercises its rights described herein with respect to Forks and Forked Networks; (iv) Trust Company, in its sole discretion, will select at least one Forked Network to support and will identify such selection in a notice; (v) with respect to a Forked Network that Trust Company chooses not to support, Trust Company may, in its sole discretion, elect to (A) abandon or otherwise not pursue obtaining the Digital Assets from that Forked Network, or (B) deliver the Digital Assets from that Forked Network to Account Holder within a time period determined by Trust Company in its sole discretion, together with any credentials, keys, or other information sufficient to gain control over such Digital Assets (subject to the withholding and retention by Trust Company of any amount reasonably necessary, as determined in Trust Company’s sole discretion, to fairly compensate Trust Company for its efforts to obtain and deliver such Digital Assets to Account Holder); (vi) with respect to Forked Networks that Trust Company chooses to support, Account Holder will be responsible for Fees, to be negotiated; and (vii) Trust Company assumes no responsibility or obligations with respect to any Forked Network and related Digital Assets that it chooses not to support.
(b) “Fork” means: (i) a Digital Asset network has been changed in a way that makes it incompatible with the unchanged version of the Digital Asset network; (ii) the changes have been widely accepted by users of the Digital Asset network; and (iii) the two resulting Digital Asset networks have not been merged together at the time of any action to be taken by Trust Company. A Fork may create two separate Digital Asset networks (each, a “Forked Network”), and may result in Trust Company holding an identical amount of Digital Assets associated with each Forked Network.
(c) If a Digital Asset network attempts to or does contribute (sometimes called “airdropping” or “bootstrapping”) its Digital Assets (“Airdropped Digital Assets”) to holders of Digital Assets on an existing Digital Asset network and Account Holder notifies Trust Company in writing of such event, Trust Company may, in its sole discretion, elect to: (i) subject to an airdrop fee to be determined, support the Airdropped Digital Assets for Custody and, if appropriate, reconcile the Account; (ii) abandon or otherwise not pursue obtaining the Airdropped Digital Assets; or (iii) deliver the Airdropped Digital Assets from that Digital Asset network to Account Holder within a time period determined in Trust Company’s sole discretion, together with any credentials, keys, or other information sufficient to gain control over such Airdropped Digital Assets (subject to the withholding and retention by Trust Company of any amount reasonably necessary, as determined in Trust Company’s sole discretion, to fairly compensate Trust Company for the efforts expended to obtain and deliver such Airdropped Digital Assets to Account Holder). Airdropped Digital Assets do not create any relationship between the sender or the Digital Asset network and Trust Company and do not subject Trust Company to any responsibilities or obligations relating to the sender or the Digital Asset network.
1.8 Limitations on Services. Trust Company will only perform the Services, and no additional duties or obligations on the part of Trust Company will be imputed or implied. Trust Company will not make, render or exercise any legal, investment, tax, or accounting advice, discretion, or recommendation regarding the Account. In providing the Services, Trust Company has no duty to inquire as to the provisions or application of any agreement or document other than this Agreement, notwithstanding Trust Company’s receipt of such agreement or document.
1.9 Ownership of Custodial Property. Account Holder owns all Custodial Property held by Trust Company on behalf of Account Holder pursuant to this Agreement. The Custodial Property will not be reflected on Trust Company’s balance sheet as assets of Trust Company. Trust Company may, for convenience, take and hold title to Custodial Property or any part thereof in its own name with Account Holder’s ownership of such Custodial Property segregated on Trust Company’s books and records.
2. Account Acceptance; Authorized Persons.
2.1 Account Acceptance. Services will be provided only upon Account Holder’s successful completion of the Account acceptance process (the “Effective Date”), as determined in Trust Company’s sole discretion and in accordance with this Section 2.1. To complete the acceptance process, Account Holder will provide Trust Company with information and documents, including information necessary for Trust Company’s compliance with the Bank Secrecy Act (“BSA”), and other Applicable Law relating to anti-money laundering (“AML”), Know-Your-Customer (“KYC”), counter-terrorist financing, sanctions screening requirements, or any similar legal obligations, as determined in Trust Company’s sole discretion.
2.2 Authorized Persons.
(a) Upon Trust Company’s acceptance of Account Holder, Account Holder will designate to Trust Company the person(s) authorized to provide instructions with respect to the Account (each, an “Authorized Person”). Account Holder is solely responsible for designating to Trust Company all Authorized Persons, for advising Trust Company of the removal of any Authorized Persons, and for all actions of Authorized Persons.
(b) Account Holder will notify Trust Company of the termination of any Account Holder Service Provider Agreement. Until such notification, Trust Company will not be liable for acting on any instruction sent by any person with whom Account Holder no longer maintains an Account Holder Service Provider Agreement.
(c) Trust Company may rely on an Authorized Person’s email address then on file with Trust Company for purposes of acting on an Authorized Instruction from an Authorized Person.
2.3 Joint Accounts. In the case of a joint Account, each person who has an interest in the Account and is a party to this Agreement is considered an Account Holder. The obligations and agreements applicable to each party to a joint Account under this Agreement are joint and several.
2.4 Acknowledgements. Account Holder acknowledges that:
(a) Account Holder is an “entitlement holder” in a “financial asset,” as defined in, and for purposes of, the Uniform Commercial Code, including Article 8 thereof, as in effect under the laws of the State of Nevada (“UCC”). Applicable Custodial Property constitutes “financial assets” for purposes of the UCC and is not an asset of Trust Company.
(b) Account Holder is solely responsible for, and Trust Company has no involvement in, determining whether any investment, investment strategy, or related transaction is appropriate for Account Holder. Trust Company has no duty or responsibility to review or conduct due diligence on any investments or transactions and will make no recommendation of investments or transactions, nor supervise any such investments or transactions. You will conduct your own due diligence on all investments and take sole responsibility for all decisions made for your Account.
(c) Trust Company does not provide valuations or appraisals of Custodial Property; provided, however, that Trust Company may, at its option and with no obligation or liability, to the extent reasonably available for any particular asset, make available recent price quotes or value estimates from third-party sources, including stock exchanges and alternative trading systems registered with the Securities and Exchange Commission, and Digital Asset exchanges. Trust Company will not attempt to verify the validity, accuracy or reliability of any such third-party valuations, valuation estimates or price quotes (collectively, “Valuation Data”) and Trust Company will have no liability in connection with any Valuation Data, including for any unreliable, inaccurate, or misleading information. Any Valuation Data provided to you is for general information purposes only, should not be relied upon as a definitive determination of the market value of any Custodial Property, and should not be used for tax reporting purposes. You agree that you should engage an independent financial advisor, appraiser, or valuation professional to obtain a formal opinion or financial advice regarding the value of Custodial Property.
(d) Trust Company has no control over, and is not responsible or liable for, any services or technology supporting or used in connection with any Custodial Property, Service Provider, Authorized Integrator platform, or the markets in which Custodial Property is purchased, sold or otherwise traded, and any Custodial Property, Service Provider (defined below), Authorized Integrator platform or such markets. Any such services or technology may be susceptible to, or limited or compromised by, errors, technology flaws or defects, viruses or other malicious code, manipulations, hacks, other attacks, outages, and other interruptions and limitations. “Service Provider” means any unaffiliated third-party entity retained by Trust Company to provide to Account Holder any of the Services on behalf of Trust Company.
(e) The custody of Digital Assets is generally subject to a high degree of risk, and the nature of Digital Assets may lead to an increased risk of technology flaws, fraud or attacks.
(f) Trust Company does not control and makes no guarantee as to the functionality of any Blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions that may impact Account Holder or its Custodial Property.
(g) Advancements in cryptography could render current cryptography algorithms utilized by a Blockchain supporting a specific Digital Asset inoperative.
(h) The supply of Digital Assets available as a result of a Forked Network and Trust Company’s ability to deliver Digital Assets resulting from a Forked Network may depend on Service Providers and other third-party providers outside Trust Company’s control. Trust Company does not own or control any protocols used in connection with Digital Assets and their related Digital Asset networks, including those resulting from a Forked Network. Accordingly, Trust Company disclaims all liability relating to such protocols and any change in the value of any Digital Assets (whether on a Forked Network or otherwise), and makes no guarantees regarding security, functionality, or availability of such protocols or Digital Asset networks. Account Holder accepts all risks associated with the use of the Services to conduct transactions.
(i) The price and liquidity of Digital Assets have fluctuated substantially in the past and may fluctuate substantially in the future. Such fluctuation may affect the value of the Account, and may include a total loss of the value of Digital Assets. The value of the Account will be solely dependent upon the performance of Custodial Property, for which Trust Company is not responsible.
(j) The Account is not insured by the FDIC, is not insured by any Trust Company insurance policy, and may not be subject to the protection afforded customers under the Securities Investor Protection Act of 1970, as amended. All funds within the Account remain fully segregated from any Trust Company funds and are never commingled.
(l) Digital Assets are not legal tender and are not backed by any government.
(m) Changes in Applicable Law may adversely affect the use, transfer, exchange, value, and legal status of Custodial Property.
(n) Transactions in Custodial Property may be irreversible, and, accordingly, losses due to fraudulent or erroneous transactions may not be recoverable.
(o) Some Digital Asset transactions will be deemed made when recorded on a public ledger, which is not necessarily the date or time that the transaction was initiated.
(p) The value of Digital Assets may be derived from the continued willingness of market participants to exchange Fiat Currencies for Digital Assets, or one form of Digital Assets for another form of Digital Assets. This could result in the permanent and total loss of value of a particular Digital Asset if the market for that Digital Asset disappears. Due to the volatility and unpredictability of the price of Digital Assets relative to Fiat Currencies, trading and owning Digital Assets may result in significant loss over a short period of time.
(q) There is no assurance that a person who accepts Digital Assets as payment at any given time will continue to do so at other times.
(r) Due to the nature of Digital Assets, technological difficulties experienced by Trust Company may prevent access to or use of Account Holder’s Digital Assets. In addition, access to or transfers of Digital Assets may be delayed due to security protocols, time-zone differences, communication technology delays or failures, or enhanced internal compliance reviews. (s) All instructions for the purchase and sale of securities or Digital Assets will be executed through one or more broker-dealers or exchanges selected by you or another Authorized Person, or by Trust Company as an accommodation (and not in any capacity as a broker-dealer). Trust Company is authorized to debit your account for any Fees associated with such transactions and remit those to the executing party.
(t) With respect to Custodial Assets that are not securities, Account Holder acknowledges and agrees that: (i) Trust Company does not have access to every market or exchange on which a particular product or financial instrument may be traded and Trust Company makes no representation regarding the best price execution of any instructions; (ii) other orders may trade ahead of Account Holder’s order and exhaust available volume at a posted price; (iii) exchanges, market makers or other types of sellers or purchasers may fail to honor posted or otherwise agreed-upon prices; (iv) exchanges may re-route customer orders out of automated execution systems for manual handling, in which case execution may be substantially delayed; (v) system delays by exchanges or third parties executing instructions may prevent Account Holder’s order from being executed, may cause a delay in execution or may cause it not to be executed at the best posted price; and (vi) Trust Company may not in a timely manner execute Account Holder’s orders due to internal delays, and Trust Company makes no representation that its Services are suitable for active trading or any activity requiring prompt or exact execution. The Account is not a brokerage account. Transactions may be subject to additional Fees and charges by Trust Company or any Service Provider or exchange.
(u) As between you and Trust Company, Trust Company owns the Services and any improvements or modifications to the Services, and all intellectual property rights therein. All suggestions, comments, feedback, data (including metadata), insights, ideas or know-how, in any form, regarding the Services (including any aspect of its functionality), including those derived from Trust Company’s monitoring and analysis of your use of the Service, will be the sole property of Trust Company. To the extent you have or obtain any right, title or interest in such feedback, you hereby irrevocably assign to Trust Company all right, title and interest to such feedback (including any intellectual property rights therein) and agree to perform such further acts as may be reasonably necessary to evidence such assignment.
3. Representations, Warranties and Covenants. Account Holder represents, warrants, and covenants at all times while this Agreement is in effect:
(a) if an entity, Account Holder is validly organized or formed, as applicable, and in good standing in accordance with Applicable Law and has all requisite authority to enter into this Agreement and perform its obligations hereunder;
(b) it has all rights, power, capacity, and, if an entity, authority necessary to enter into this Agreement and perform its obligations hereunder;
(c) its entry into, and performance of its obligations under, this Agreement, and Trust Company’s exercise of its rights in accordance with this Agreement, will not conflict with, or result in a breach or violation of, any term or provision, or constitute a default under, any agreement by which Account Holder is bound or any Applicable Law;
(d) it will comply with all Applicable Law, including the BSA and laws related to AML, KYC, counter-terrorist financing, sanctions requirements, in performing its obligations under this Agreement;
(e) it will: (i) fully satisfy Trust Company’s information requests and other requirements, including those relating to Authorized Persons or Custodial Property, and keep current any provided information; (ii) notify Trust Company if Account Holder becomes a target of any action, investigation or prosecution related to this Agreement, the Services, or Custodial Property; and (iii) provide full cooperation to Trust Company in connection with any inquiry or investigation of Trust Company by any governmental authority. Trust Company has no obligation to provide the Services if Account Holder or any Authorized Person fails to comply with the foregoing to Trust Company’s satisfaction;
(f) the appointment of Trust Company and the performance of the terms of this Agreement by Account Holder will not violate any Applicable Law;
(g) Account Holder owns, and will at all times own, all Custodial Property, free and clear of liens and encumbrances (other than those granted to Trust Company pursuant to this Agreement);
(h) neither Account Holder nor any Authorized Person is directly or indirectly owned or controlled by any person or entity
(i) included on the Specially Designated Nationals and Blocked Persons or the Consolidated Sanctions List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or any similar list maintained by any governmental authority, or (ii) located, organized, or resident in a country or territory that is the target of sanctions imposed by OFAC or any governmental authority; (i) Account Holder will not, and will not direct or permit its Authorized Persons to, direct the purchase, sale, or transfer of any Custodial Property which is (i) prohibited by Applicable Law, or (ii) a prohibited transaction under Section 4975 of the Internal Revenue Code;
(j) all information provided by Account Holder to Trust Company pursuant to this Agreement is and will be complete, correct, current, and accurate in all respects. Account Holder will notify Trust Company immediately if any such information, including Account Holder’s contact information on file with Trust Company, is no longer complete, correct, current, and accurate in all respects.
4. Privacy and Data Policies. To the extent permitted by Applicable Law and our privacy and data policies, Trust Company may share information about you and your Account with affiliates and third parties. Account Holder agrees to Trust Company’s privacy and data policies, which are available at bridgetrust.co/privacy-policy. Trust Company may modify these policies at any time without prior notice or liability, and any modification will be effective following 30 days after posting to Trust Company’s website.
5. Electronic Statements.
5.1 Account Statements. Trust Company will make Account statements available in electronic form only. Account Holder agrees to access statements on the websites or applications of the Authorized Integrator. Account Holder understands and agrees that Trust Company will not provide Account Holder hard-copy statements.
5.2 Monitoring Your Account. You are responsible for monitoring your Account, including transaction confirmations and Account statements, and reviewing all such items to ascertain that information about your Account is accurate. You agree to review your monthly statements and promptly notify Trust Company of any unusual or unauthorized activity. You remain responsible for monitoring your Account and reconciling all balances, statements, and activity. You agree to notify Trust Company immediately if there is any discrepancy or suspicious or unexplained occurrence relating to your Account, including any unauthorized transaction. If you fail to notify Trust Company immediately, no Indemnitee (as defined in Section 13.1) will be liable for any consequences. If, through any error, you have received property that is not rightfully yours, you agree to notify Trust Company and return the property immediately. If Trust Company identifies an error in connection with property you received from or through Trust Company and determine it is not rightfully yours, Trust Company may take action to correct the error, which may include returning the property to the rightful owner.
6. Authority to Pledge; Right of Set-off; Lien. Except as provided in this Section 6, Account Holder may not loan, hypothecate, pledge, or otherwise encumber any Custodial Property. Account Holder grants Trust Company a right of set-off against, a lien on, and a security interest in, the Custodial Property for the payment of any Fees and any other amounts due to Trust Company under this Agreement.
7. Application of UCC. Except as otherwise provided under Applicable Law, the relationship between Trust Company and Account Holder is governed by Article 8 of the UCC. For purposes of this Agreement, Account Holder is an “entitlement holder” and Custodial Property will be treated as a “financial asset,” as those terms are defined in Nevada Revised Statutes (“NRS”) 104.8102(1)(h) and (j), respectively.
8. Books and Records. Trust Company will record on its books and records (including records of receipts, disbursements, and other transactions) all Custodial Property and will segregate Account Holder’s Custodial Property from the custodial property of any other person or entity, unless otherwise specified in an Authorized Instruction. Upon commercially reasonable notice by Account Holder, Trust Company will provide Account Holder copies of the books and records pertaining to Account Holder that are in the possession or under the control of Trust Company.
9. Fees. (a) Account Holder will pay Trust Company the Fees in connection with the Services. “Fees” means any monthly custody fee for Custodial Property, statement fee, withdrawal fee, smart contract transaction fee, third-party fee, and all other applicable fees and other charges as made available on Trust Company’s website and as may be modified from time to time at the Trust Company’s discretion. Changes to Fees will not affect any Fees for prior periods and will only be effective as of the date changes are published on Trust Company’s website. All Fees are payable in US dollars, at the Trust Company’s discretion, not later than 30 days after the Fee is incurred. (b) If Trust Company is charged any Fees (e.g., transfer agent fees, legal fees, accounting fees, tax preparation fees, notary fees, exchange fees, brokerage fees, bank fees, Blockchain settlement fees, etc.) by a third party in performing Services, Account Holder will reimburse Trust Company for such Fees at cost-plus 25% (excluding broker-dealer commissions).
10. Term and Termination. 10.1 Term. This Agreement is effective as of the Effective Date, and will continue in full force and effect until terminated as provided herein (the “Term”).
10.2 Termination. This Agreement may be terminated by either Party at any time upon 30 days’ prior written notice to the other Party; provided, however, that Trust Company may immediately terminate this Agreement without notice in the event that: (i) Trust Company becomes aware or has reason to believe that Account Holder may be engaged in illegal activity, has violated Applicable Law, or has breached its obligations under this Agreement; (ii) Trust Company deems termination appropriate in order to comply with Applicable Law or directives of regulatory or law enforcement authorities (even if such directives are not legally binding and do not have the force or effect of law); (iii) Trust Company in its sole discretion determines that Account Holder’s actions may create liability on the part of Trust Company, its affiliates, or its customers; or (iv) Trust Company terminates its agreement with an Authorized Integrator, in which case Trust Company, in its sole discretion, may choose to continue to provide Services to the Account Holder but will no longer accept Authorized Instructions using the Authorized Integrator platform under the terminated agreement.
10.3 Termination of an Account Holder Service Provider Agreement. If Account Holder intends to terminate its Account Holder Service Provider Agreement, Account Holder must provide 30 days’ prior written notice to Trust Company, which notice shall include the effective date of termination. In the event of termination of the Account Holder Service Provider Agreement, Trust Company will no longer accept Authorized Instructions using the Authorized Integrator platform.
10.4 Effect of Termination. Upon termination of this Agreement, Account Holder will pay Trust Company all Fees and any other amounts due and owing hereunder.
10.5 Obligations and Rights on Termination.
(a) Return of Custodial Property. Upon termination of this Agreement, Account Holder will provide Authorized Instructions for return or disbursement of the Custodial Property and Trust Company will, subject to Applicable Law, deliver the Custodial Property in accordance with the Authorized Instructions. A Digital Asset will be deemed delivered to Account Holder when a transfer of the Digital Asset initiated by Trust Company has received a reasonable number of confirmations on the relevant Blockchain, or an alternative method has been mutually agreed by Trust Company and Account Holder. To the extent Account Holder is unable to transfer Digital Assets out of the Account through no fault of Trust Company, Account Holder abandons and forfeits any claims to such Digital Assets upon closure of the Account. Upon termination of this Agreement, Trust Company will deliver other Custodial Property to Account Holder as soon as practicable or, at Account Holder’s reasonable request, to a successor custodian. Account Holder acknowledges that any Custodial Property held in Trust Company’s name requires a reasonable amount of time to be delivered. Upon delivery of Custodial Property, Trust Company’s responsibility under this Agreement ends.
(b) Death or Incompetency of Account Holder. Upon the death or incompetency of Account Holder, Trust Company will continue to hold Custodial Property until Trust Company receives instructions from Account Holder’s executor, trustee, administrator, guardian, or person holding a valid power of attorney in accordance with the probate process or otherwise in accordance with Applicable Law and has received advice of Trust Company’s legal counsel to transfer such Custodial Property (which costs will be borne by Account Holder). If no beneficiaries claim the Account, then the assets may be preserved in the Account for so long as possible, until a beneficiary makes itself known or until the Custodial Property is subject to escheat.
(c) Escheat. Account Holder acknowledges that, in accordance with Applicable Law, Custodial Property that is presumed abandoned, including following termination of this Agreement, may under certain circumstances escheat to the government of the applicable jurisdiction. Trust Company will have no liability to Account Holder, its heirs, legal representatives or successors, assigns, or any other person in connection with any Custodial Property that escheats by operation of law.
11.1 Responsibility for Taxes. Account Holder will be liable for all taxes, assessments, duties, and other governmental and similar charges (“Taxes”) relating to any Custodial Property held on behalf of Account Holder or any transaction related thereto, which are Account Holder’s sole obligation to remit, unless otherwise mandated by Applicable Law. Account Holder will remit to Trust Company the amount of any Tax that Trust Company is required by Applicable Law to pay on behalf of Account Holder or in respect of activity in the Account. If Trust Company is required by Applicable Law to pay any Tax on behalf of Account Holder, Account Holder will promptly transfer to Trust Company the amount necessary to pay the Tax.
11.2 Substitute Internal Revenue Service (“IRS”) Form W-9. Under penalties of perjury, Account Holder certifies that: (i) the tax identification number provided to Trust Company by Account Holder is the correct and current taxpayer identification number of Account Holder; and (ii) Account Holder is not subject to backup withholding because: (A) Account Holder is exempt from backup withholding; or (B) Account Holder has not been notified by the IRS that it is subject to backup withholding. Account Holder shall immediately inform Trust Company in writing if it has been, or at any time in the future is, notified by the IRS that Account Holder is subject to backup withholding. Account Holder acknowledges that failing to provide accurate information regarding any of the foregoing may result in civil penalties.
(a) ACCOUNT HOLDER’S ACCESS TO AND USE OF THE SERVICES ARE AT ACCOUNT HOLDER’S OWN RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRUST COMPANY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE.
(b) TRUST COMPANY HAS NO OBLIGATION TO INQUIRE INTO, AND WILL NOT BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITIES OR HARM TO ANY PERSON OR ENTITY RELATING TO: (I) OWNERSHIP, VALIDITY OR GENUINENESS OF ANY CUSTODIAL PROPERTY; (II) AUTHORITY OF ANY AUTHORIZED PERSON TO ACT ON BEHALF OF ACCOUNT HOLDER WITH RESPECT TO CUSTODIAL PROPERTY; (III) ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY ACCOUNT HOLDER OR ANY OTHER AUTHORIZED PERSON WITH RESPECT TO CUSTODIAL PROPERTY OR AN AUTHORIZED INSTRUCTION; OR (IV) COLLECTABILITY, INSURABILITY, EFFECTIVENESS, MARKETABILITY, OR SUITABILITY OF ANY CUSTODIAL PROPERTY. ACCOUNT HOLDER UNDERSTANDS AND AGREES THAT: TRUST COMPANY MUST FOLLOW THE DIRECTIONS OF ACCOUNT HOLDER, TRUST COMPANY IS CONSIDERED BY THIS AGREEMENT TO BE A “DIRECTED FIDUCIARY” UNDER NRS 163.5548, AND TRUST COMPANY WILL BE RELEASED AND HELD HARMLESS FOR FOLLOWING THE DIRECTIONS OF ACCOUNT HOLDER IN ACCORDANCE WITH NRS 163.5549; AND ACCOUNT HOLDER IS CONSIDERED BY THIS AGREEMENT TO BE A “DIRECTING TRUST ADVISER” UNDER NRS 163.5536 AND HAS THE AUTHORITY TO GIVE DIRECTIVES TO TRUST COMPANY THAT MUST BE FOLLOWED BY TRUST COMPANY.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRUST COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW). TRUST COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NO AUTHORIZED INTEGRATOR HAS BEEN AUTHORIZED BY TRUST COMPANY, AND NO AUTHORIZED INTEGRATOR HAS THE AUTHORITY, TO MAKE REPRESENTATIONS OR WARRANTIES ON TRUST COMPANY’S BEHALF. TRUST COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE USE OF THE SERVICES OR AGAINST INFRINGEMENT. TRUST COMPANY DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE IS ERROR-FREE OR THAT OPERATIONS OR DATA WILL BE SECURE OR UNINTERRUPTED. TRUST COMPANY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE FLOW OF DATA AND DELAYS ON THE INTERNET, INCLUDING FAILURE OR DELAY TO SEND OR RECEIVE ELECTRONIC COMMUNICATIONS (e.g., EMAIL). ACCOUNT HOLDER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF TRUST COMPANY TO ANY THIRD PARTY.
13. Liability; Indemnification.
13.1 Disclaimer of Liability and Consequential Damages. TRUST COMPANY AND TRUST COMPANY’S AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “INDEMNITEES”) SHALL NOT BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY ANY INDEMNITEE UNLESS AS A RESULT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN EACH CASE AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION. INDEMNITEES SHALL NOT BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY ANY SERVICE PROVIDER OR OTHER THIRD PARTY. TRUST COMPANY’S SOLE RESPONSIBILITY SHALL BE FOR PROVIDING THE SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. TRUST COMPANY SHALL HAVE NO IMPLIED DUTIES OR OBLIGATIONS AND SHALL NOT BE CHARGED WITH KNOWLEDGE OR NOTICE OF ANY FACT OR CIRCUMSTANCE NOT SPECIFICALLY SET FORTH HEREIN. YOU HEREBY ACKNOWLEDGE AND AGREE, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THAT TRUST COMPANY WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR ANY TRANSACTION OCCURRING PURSUANT TO THIS AGREEMENT, INCLUDING LOST REVENUE OR PROFITS OR LOSS OF BUSINESS OR LOSS OF DATA, EVEN IF TRUST COMPANY HAS BEEN ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE. THIS INCLUDES ANY LOSSES OR PROBLEMS RESULTING FROM INCIDENTS OUTSIDE OF TRUST COMPANY’S DIRECT CONTROL, INCLUDING ERRORS, HACKS, THEFT, OR ACTIONS OF ISSUERS, TRANSFER AGENTS, SMART CONTRACTS, BLOCKCHAINS AND INTERMEDIARIES OF ALL TYPES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH INDEMNITEE SHALL BE EXCUSED FROM FAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR DELAY IS CAUSED BY A FORCE MAJEURE EVENT (AS DEFINED IN SECTION 16.2).
13.2 Limit on Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ACCOUNT HOLDER AGREES UNDER NO CIRCUMSTANCES WILL INDEMNITEES’ TOTAL LIABILITY OF ANY AND ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY WARRANTY CLAIMS), REGARDLESS OF THE FORM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE GREATER OF THE TOTAL AMOUNT OF FEES PAID BY ACCOUNT HOLDER TO TRUST COMPANY UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
13.3 Indemnification. Account Holder shall indemnify, protect, defend, and hold harmless the Indemnitees from and against any and all claims, demands, obligations, losses, liabilities, damages, regulatory investigations, recoveries and deficiencies (including interest, penalties and attorneys’ fees and expenses), which an Indemnitee may suffer arising out of or relating to: (i) this Agreement; (ii) any breach, action, or regulatory investigation arising from your failure to comply with Applicable Law or arising out of any alleged misrepresentation, misstatement, omission of fact, or inaccuracy in your representations and warranties or in your interactions with Trust Company, or your breach, non-fulfillment or default in the performance of any conditions, covenants or agreements contained in this Agreement or in any certificate or document delivered by you or any Authorized Person or other agent or in any Authorized Instruction pursuant to any provisions of this Agreement; (iii) any breach, action or regulatory investigation arising from your failure to comply with any Applicable Law, or arising out of any alleged misrepresentations, misstatements or omissions of material fact in any securities offering memoranda, general solicitation, advertisements or other offering documents on your part; (iv) any obligation which is your responsibility under this Agreement; (v) any loss or damage to any third party, direct or consequential, arising out of or in any way related to acts or omissions of any Indemnitee relating to the Services and not constituting recklessness or intentional misconduct on the part of such Indemnitee; (vi) any damages or claims resulting from equipment, software, or network malfunctions or interruptions outside of any Indemnitee’s control; or (vii) any misuse of the Services by an Authorized Person or through an Authorized Instruction.
13.4 Limitation on Trust Company’s Duty to Litigate. Without limiting the foregoing provisions of this Section 13, Trust Company has no obligation to defend any legal action or engage in any other legal proceedings with respect to the Account or any property of the Account unless Trust Company is indemnified to Trust Company’s satisfaction. Notwithstanding anything in this Agreement to the contrary, Trust Company is authorized and empowered to consult with counsel of its choice in reference to the Account and to retain counsel and appear in any action, suit, or other proceeding affecting the Account or any property of the Account. All fees and expenses so incurred will be for the Account and will be charged to the Account.
13.5 Third-Party Claims. Account Holder bears sole responsibility for the prosecution, defense, or enforcement of any judgment, including the employment of legal counsel, of any and all legal actions or suits involving the Account, which may arise or become necessary for the protection of investments in the Account, including any actions lodged against Trust Company. However, Trust Company, in its sole discretion, may, upon notice to Account Holder, participate in, or assume and control, the prosecution or defense, or enforcement of any judgment in any such legal actions or suits, at Account Holder’s expense.
14. Confidentiality and Compliance With Legal Process.
14.1 Permitted Disclosure. We may share information concerning you and the Account:
(a) with banks and other financial institutions that we use or may use to process funds in connection with the Services; (b) with law enforcement, regulatory authorities, self-regulatory organizations (such as those that operate Digital Assets derivative exchanges) and officials, and other third parties when we are compelled to do so by a subpoena, court order, or similar legal procedure, or when we believe in good faith that disclosure of your information is necessary to prevent physical harm or financial loss, to report suspected illegal activity, or to investigate violations of this Agreement;
(c) with third parties, such as our vendors, agents, contractors and advisors, in order to perform the Services, verify your identity, and conduct screening and due diligence checks;
(d) as required by Applicable Law; or
(e) if we are acquired by or merge with a third party, to such third party as part of the acquisition or merger. 1
4.2 Legal Process. We may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process that we in good faith believe to be valid. We may, but are not required to, notify you of such process. We may charge you for associated costs, including attorneys’ fees. We may honor any legal process regardless of the method or location of service.
(a) Any dispute, potential claim, question, or disagreement arising from or relating to this Agreement or the breach thereof (collectively, a “Dispute”), will be finally settled by binding arbitration administered by the American Arbitration Association in Clark County, Nevada. Account Holder consents to this method of dispute resolution, as well as jurisdiction, and consents to this being a convenient forum for resolving any such Dispute and waives any right Account Holder may have to object to the method or jurisdiction for final resolution of such Dispute. The decision of the arbitrator shall be final, binding, and enforceable in any court. In the event of any Dispute between the Parties, the prevailing Party is entitled to recover damages plus reasonable costs and attorney’s fees from the losing Party. Account Holder waives any right to trial by jury in any lawsuit, action, proceeding, or counterclaim arising out of this Agreement. Account Holder agrees not to bring or participate in any putative or certified class action.
(b) There shall be no implied or constructive waiver of the arbitration provisions of this Agreement. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the arbitration provisions.
15. General Provisions.
16.1 No Third-Party Beneficiaries Other Than Indemnitees.
(a) Except as provided in paragraph
(b) of this Section, this Agreement is not intended to and will not be construed to give any third party, including any Authorized Integrator or Service Provider, any interest or rights (including any third-party beneficiary rights) with respect to or in connection with any provision contained herein or contemplated hereby. (b) The Indemnitees are intended third-party beneficiaries of the provisions of Sections 5.2 and 13.
16.2 Force Majeure. Trust Company will not be liable to any extent to Account Holder, including for any costs or expenses, for any failure to perform or delay in performance by Trust Company or any Service Provider, in each case, of its obligations under this Agreement to the extent such failure or delay is caused by or results from a Force Majeure Event. A “Force Majeure Event” means an event caused by a circumstance beyond Trust Company’s reasonable control, including natural catastrophes, fire, flood, earthquake, explosion, pandemic or local epidemic, war, hostilities, governmental sanctions directed at foreign powers, other action by a state actor, other governmental action rendering performance illegal or impossible, power outages, civil unrests and conflicts, labor strikes or extreme shortages, acts of terrorism or espionage, supply shortages, interruptions or delays in transportation or communications, bank failures, domain name server issues outside Trust Company’s direct control, unavailability of the Internet, computer viruses, technology attacks, cyberattack or malfunction on the Blockchain network or protocol.
(a) All notices required or permitted under this Agreement shall be in writing and delivered by courier or email (except for service of legal process, which shall be by courier). Any notice or other communications Trust Company sends in accordance with this Section will be deemed to have been delivered (regardless of actual receipt): (i) if sent by email, when sent; and (ii) if sent to a physical address by courier, when delivered to such address.
(b) Notices shall be delivered as follows: (i) if to Trust Company, to: Bridge Trust, Co. __100 N. City Parkway, Suite 1700_______________________ _____Las Vegas, NV 89106_____________________ Attention:__Tyler Lefky________________ Email:__Tyler@bridgetrust.co___________________ (ii) if to Account Holder, to the email address or physical address on file for your Account. A Party may from to time change its email address or physical address by giving the other Party written notice of such change in the manner set forth above.
16.4 Execution in Counterparts and by Electronic Means. This Agreement may be executed and delivered in counterparts and by electronic means. The foregoing will have the same force and effect as personal delivery of an original document with original signatures.
16.5 Entire Agreement. This Agreement includes any exhibits, schedules, and attachments referenced herein, all of which are incorporated herein by this reference. This Agreement is the final, complete, and entire agreement of the Parties relating to the subject matter hereof. This Agreement supersedes and cancels any prior written or oral agreements between the Parties relating to such subject matter.
16.6 Amendments. This Agreement may be amended or otherwise modified by Trust Company in its sole discretion at any time. Such amendments or modifications will be effective 30 days after Account Holder receives notice of such revision electronically via the email address for the Account shown on the records of Trust Company.
16.7 Cumulative Remedies. Trust Company will have all rights and remedies provided by Applicable Law in addition to the rights and remedies provided for in this Agreement. All of Trust Company’s rights and remedies are cumulative and may be exercised from time to time, and the pursuit of one right or remedy will not constitute an exclusive election or otherwise preclude or limit its pursuit of any other or additional right or remedy.
16.8 Severability. Any provision of this Agreement that is determined by binding legal authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In such case, such provision will be interpreted to accomplish the objectives of the provision to the maximum extent possible under Applicable Law.
16.9 Assignment. Account Holder may not assign or otherwise transfer, including by operation of law, any of its rights, obligations, or performance under this Agreement. Any such attempted transfer by Account Holder will be null, void and of no legal effect. Trust Company may assign, hypothecate, or otherwise transfer, including by operation of law, any of its rights, obligations, or performance under this Agreement at any time without notice to Account Holder.
16.10 Use of Affiliates and Service Providers. Trust Company may provide Services through any affiliate or Service Provider as chosen by Trust Company from time to time.
16.11 No Waiver of Contractual Rights. The failure of Trust Company to enforce any provision of this Agreement will not constitute or be construed as a waiver or limitation of Trust Company’s right to subsequently enforce and compel strict compliance with such provision and every other provision of this Agreement. A waiver or consent given on one occasion is effective only on that occasion and will not constitute or be construed as a bar to, or waiver of, any right on any other occasion.
16.12 Non-Exclusivity. Nothing in this Agreement will limit or restrict Trust Company such provision and from providing services to any other person, including services that are similar or identical to some or all of the Services.
16.13 Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Nevada, without regard to conflict of laws principles.
16.14 Survival. Any expiration or termination of this Agreement will not affect any accrued claims, rights or liabilities of Trust Company, and all provisions which must survive to fulfill their intended purposes, or by their nature are intended to survive such expiration or termination will survive, including this Section and Sections 3, 9, 10, 11, 12, 13, 14, and 15.
16.15 Interpretation. All pronouns and any variations thereof will be deemed to refer to all persons, and to the singular or plural, as the context requires for proper interpretation of this Agreement. The section headings in this Agreement are solely for ease of reference and shall be given no effect in the interpretation of this Agreement. Agreed as of this ______ day of _______________, 2023 by and between:
ACCOUNT HOLDER NAME:
BRIDGE TRUST, CO.
TITLE, if any: Name: