Swell Terms of Service

Last updated

October 18, 2024

1. Introduction and Acceptance of Terms

Welcome to Swell, a decentralized liquid staking protocol operated by or on behalf of LD Technologies Foundation, a company incorporated in the Republic of Panama. ("Company," "we," "us," or "our").

These Terms of Service ("Terms") constitute a legally binding agreement between you and/or the entity you represent ("User," "you," or "your") and Swell, governing your access to and use of the Swell website (https://www.swellnetwork.io), any related applications, and all services offered through Swell (collectively, the "Services").

By accessing or using the Services, you represent that you have read, understand and agree to be bound by these Terms and our Privacy Policy. If you do not agree to be bound by these Terms, you must not access or use the Services.

Important Notice: Certain Services are not available to persons or entities who are:

Located in, under the control of, or nationals or residents of any country subject to United Nations sanctions, United States embargo, or HM Treasury's financial sanctions regime, including but not limited to 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 (collectively, "Restricted Territories").

If you are a person from a Restricted Territory, do not attempt to access or use the Services. Use of a virtual private network (VPN), provision of false or misleading documentation, or other means by persons from Restricted Territories to access or use the Services is prohibited.

Note: U.S. persons, including residents and entities incorporated or organized in the United States, are prohibited from accessing or using certain specific services offered by Swell.

These restricted services include the liquid staking and liquid restaking of ETH, wBTC, swETH, rswETH and swBTC on the Swell Protocol s and the participation in and receiving of Swell Tokens in the Voyage (S1 Airdrop) (the “Restricted Services”). For avoidance of doubt, if you are currently or ordinarily located or resident in (or incorporated or organized in) the U.S., you may not use these Restricted Services.

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2. Definitions

"Digital Asset" means a digital asset or cryptocurrency, such as ETH, which is based on the cryptographic protocol of a computer network that may be centralized or decentralized, closed or open-source, and used as a medium of exchange and/or store of value.
"ETH" means ether, the native cryptocurrency of Ethereum.
"Ethereum" is an open-source, public, blockchain-based distributed computing platform featuring smart contract functionality.
"Liquid Staking" within the Swell protocol allows users to support the decentralized blockchain network while continuing to hold a representation of their staked assets for use within decentralized applications. This process is intended solely to enhance network security and provide operational flexibility to participants, not to serve as a financial instrument or investment vehicle.
"MEV" or "Maximal Extractable Value" means the maximum value that can be extracted from block production in excess of the standard block reward and gas fees by including, excluding, and changing the order of transactions in a block.
"Platform Commission" means the commission charged by the Company in connection with the use of the Platform for the provision of Staking Services.
"Slashing" means the consequence of breaking specific protocol rules when submitting attestations or block proposals, which could constitute attacks on the chain; resulting in losing a significant amount of stake and being ejected from the protocol.
"Penalties" means the consequence for validators that do not fulfill their assigned duties and are penalized by losing small amounts of stake.
"Staking Node" means the collection of server hardware, smart contracts, and software required to maintain a current copy of the blockchain for a Supported Digital Asset and to produce or validate new blocks or software modules on a Supported Protocol.
"Staking Rewards" and “Restaking Rewards” means all Supported Digital Assets generated from the pooling or delegation of the Supported Digital Assets to operate Staking Nodes, including block rewards, transaction fees, MEV, and any other direct payments as a result of operating a Staking Node.
"Staking Service" means the liquid staking service provided by the Company.
"Staking User" means a user of the Platform who utilizes the Staking Services.
"Supported Digital Assets" means selected Digital Assets that can be staked on the Swell Protocol as may be determined by the Company from time to time.
"Supported Protocols" means selected proof-of-stake protocol(s) as may be determined by the Company from time to time.
"sw-Liquidity Tokens" means fungible digital tokens with the prefix "sw-" (e.g., swETH) minted when Supported Digital Assets are staked, representing ownership of the staked assets.
"Wallet" means a software program that stores private and public keys and interacts with various blockchains to enable users to send and receive digital currency and monitor their balance.
“U.S.” means United States of America.

3. Eligibility and User Representations

3.1. Eligibility Criteria

To use the Services, you must:

Be at least 21 years old.
Not be located in a jurisdiction where Digital Assets or the use of the Services are restricted or prohibited by law.
Not be the subject of, and are not under the control or ownership of a person that is subject to any sanctions administered or enforced by any country or government or international authority or part of the Restricted Territories.

You may not use the Services if you do not comply with the Eligibility Criteria set out above.

3.2. User Representations and Warranties

By using the Services, you represent and warrant that:

You meet and comply with all the Eligibility Criteria.
Your use of the Services does not violate any applicable law or regulation in your jurisdiction.
You are not located in, under the control of, or a national or resident of any Restricted Territory.
You are not the subject of any sanctions administered or enforced by any governmental or international authority.
You possess adequate financial and technical knowledge to understand the inherent risks associated with using cryptographic and blockchain-based systems and purchasing and holding cryptocurrency.
You have read and understood, and you agree to, the Risk Disclosures set out in Section 8 below.
You are solely responsible for compliance with all applicable laws related to your use of the Services, including tax laws.
Any Digital Assets you use in connection with the Services are either owned by you or you are validly authorized to carry out actions using such assets; and
You access and use the Services for your own benefit and not for the benefit or on behalf of any third party beneficiary.

3.4. Restricted Services

Users from the U.S. and other prohibited jurisdictions are not permitted to access or use the Restricted Services.

4. Account Creation and Security

4.1. Account Registration

While some Services do not require account registration, certain features, such as staking and governance participation, may require you to create an account (a “User Account”).

4.2. User Responsibilities

You are responsible for:

Providing accurate, current, and complete information during the registration process and updating it as necessary.
Safeguarding your account credentials and any activities or actions under your User Account.
Maintaining the security of your Wallet and your control over any Wallet-related authentication credentials, private or public cryptocurrency keys, NFTs, or cryptocurrencies stored in or accessible through your Wallet. By using a Wallet in connection with the Services, you agree that you are using the Wallet under the terms and conditions of the applicable third-party provider of such Wallet.

4.3. Account Suspension or Termination

We reserve the right to disable or terminate any user account at any time, in our sole discretion, for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

4.4. Responsibility over User Account

You are solely responsible for all activities conducted through your Wallet and/or User Account whether or not you authorize the activity. In the event that fraud, illegality or other conduct that violates these Terms is discovered or reported (whether by you or someone else) that is connected with your User Account and/or Wallet, the Company may suspend or block your access to the Services, with or without notice.

You are solely responsible for maintaining the confidentiality and security of your Wallet, User Account and for restricting access to your Wallet, User Account and/or devices. You are solely responsible for any harm resulting from your disclosure, or authorization of the disclosure, of your access credentials (for example, passwords or biometrics) or from any person's use of your access credentials to gain access to your Wallet, User Account and/or devices. You acknowledge that in the event of any unauthorized use of or access to your Wallet, User Account, access credential or other breach of security, you accept that due to the nature of the Services, the Company will be unable to remedy any issues that arise and the Company will not be responsible or liable for the same. You accept all risks of loss, including loss as a result of any authorized or unauthorized access to your Digital Wallet and User Account.

The Company will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations, or for any reason whatsoever, except fraud on our part.

The Company cannot and will not be liable for any loss or damage arising from your sharing or other loss of your private key or related information, or any other damage or loss arising from unauthorized access to your account.

5. Description of Services

5.1. Platform Overview

Swell operates a decentralized protocol that allows users to participate in the security and operation of supported blockchain networks through staking. The protocol is designed to support decentralized network functionality and provide operational flexibility to users who wish to contribute to the network’s stability. Swell does not guarantee or offer any financial returns, and the use of the protocol is intended solely for decentralized network participation.

The Services include:

Liquid (Re)Staking for Ethereum and other Supported Digital Assets.
Minting of sw-Liquidity Tokens representing staked assets.
Access to decentralized finance protocols and secondary markets for sw-Liquidity Tokens.
Website and web application usage.
Swell Governance Voting & Staking.
Participation in Wavedrops (S2 airdrop)
Swell Ethereum Layer 2.

5.2. Non-Custodial Services

Swell operates on a non-custodial basis. You retain full ownership and control of your digital assets.

The Company does not have custody over your Digital Assets, private keys, User Account or Wallet access.
You are solely responsible for managing and securing your Wallet keys and ensuring the integrity of your transactions on the blockchain.

5.3. Unstaking

You may request to withdraw all or any part of your staked Supported Digital Assets.

When unstaking, you select the quantity and type of sw-Liquidity Tokens to be burned and redeemed, and the corresponding amount of staked Supported Digital Assets will be released to your Wallet.
The time taken for unstaking the supported Digital Assets will differ based on the Asset being unstaked and the underlying blockchain. Swell aims to process all unstaking requests promptly, contingent on the limitations of the underlying blockchain, including withdrawal queues.
The Company may impose unstaking limits or pause unstaking based on frequency or volume of requests, slashing penalties, or at the Company’s sole discretion, for other reasons it deems appropriate

As the unstaking and withdrawal of your staked Digital Assets ultimately depends on the processing of the transaction by the underlying blockchains, kindly note that there may be delays, errors or failures in the processing of your unstaking and withdrawal requests. The Company is not and will not be responsible or liable for any damage, losses, costs, expenses or other liabilities suffered or incurred by you or any related third party due to any delays, errors or failures in the processing of your unstaking and withdrawal requests.

5.4 Restaking

Certain protocols and networks require that a certain amount of staked Digital Assets be locked for a certain period of time while staking, and withdrawal of staked Digital Assets may be delayed. We do not guarantee the security or functionality of any third-party protocol, software or technology intended to be compatible with restaked Digital Assets.

5.5 Risks

Users who stake or restake Digital Assets through Swell do so to support the security and operation of the underlying decentralized blockchain network. They may be eligible to earn rewards based on their staking or restaking participation, however, this is subject to the following caveats:

Risks: Staking and Restaking is subject to network risks, such as slashing penalties, validator downtime, and other unpredictable events on the underlying blockchain (e.g., Ethereum or Eigenlaye), malicious actors, hacking, theft, loss and other destruction of some or all of your Digital Assets. Further, as the staking or restaking of Digital Assets involves locking up your Digital Assets and making them unusable and illiquid for a period of time, there is a risk of opportunity cost or loss of opportunities, or a loss of value or diminution in value in your staked or restaked Digital Assets. You acknowledge and agree that your use of the Services for the staking of your Digital Assets is solely at your own risk, and that by staking your Digital Assets, there is a chance of a loss of opportunities, diminution of value, loss of value, loss, destruction or forfeiture of some or all of your staked or restaked Digital Assets.
No Liability: Swell is not and will not be responsible or liable for any damage, losses, costs, expenses or other liabilities suffered or incurred by you due to your staking or restaking of your Digital Assets via the Services these risks.
Delays: You acknowledge and agree that Company shall have no liability to you or any third party with respect to any losses arising from the timing of any deployment of Supported Digital Assets, including without limitation any delay in staking such Supported Digital Assets.
Staking and Restaking Rewards come from the underlying blockchain protocol or network: While certain blockchain protocols may distribute rewards to validators or stakers, these rewards are determined entirely by the decentralized protocol and are not guaranteed or influenced by Swell. Users participate in staking solely to support the decentralized network, and Swell does not promise or imply any financial returns as a result of staking.

For avoidance of doubt, Staking Rewards are not guaranteed, and there is a possibility that Users may not receive any Staking Rewards despite staking their Digital Assets via the Services. The Company is not responsible or liable in the event that you do not receive any Staking Rewards from your staked Digital Assets through the use of the Services, and shall have no obligation to you to facilitate any payment of any Staking Rewards.

5.6 Intangible Rewards

In your use of the Services, you may be attributed certain reputation indicators, points, or other intangible rewards (“Intangible Rewards”). Intangible Rewards are not, and may never convert to, accrue to, be used as basis to calculate, or become any other tokens or virtual assets or distribution thereof. Intangible Rewards are virtual items with no monetary value. Intangible Rewards do not constitute any currency or property of any type and are not redeemable, refundable, or eligible for any fiat or virtual currency or anything else of value. Intangible Rewards are not transferable between users, and you may not attempt to sell, trade, or transfer any Intangible Rewards, or obtain any manner of credit using any Intangible Rewards. Any attempt to sell, trade, or transfer any Intangible Rewards or tokens redeemable for or representing any Intangible Rewards will be null and void. Any intangible rewards ARE MADE AVAILABLE “AS IS” AND WITHOUT WARRANTY OF ANY KIND.

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6. Non-Security Classification of $SWELL Governance Token

6.1. Nature of $SWELL Token

The $SWELL token is a governance token designed to facilitate participation in the decentralized governance of Swell. It is not:

A security, financial instrument, or regulated investment product.
Intended to be used or held as an investment vehicle.

6.2. Legal Notice

The $SWELL token is designed to avoid classification as a security under the Howey Test.

The Company does not offer securities-related services or solicit investments.
Users are responsible for ensuring that their acquisition and use of $SWELL tokens comply with all applicable laws and regulations in their jurisdiction.

6.3. Further Clarification Regarding the Non-Security Status of $SWELL Token

$SWELL Token Use and Governance Rights

The $SWELL token is strictly intended to be used as a governance token within the Swell decentralized protocol. The token provides holders with the ability to participate in decision-making processes related to the future development of the Swell ecosystem. The $SWELL token:

Does Not Confer Ownership Rights: Ownership of $SWELL tokens does not represent any form of equity, debt, or ownership in Swell, Overflow Foundation, or any affiliated entity. It does not grant token holders any rights to profits, dividends, or other financial interests in the Company or the Services.
The $SWELL token is intended solely for use as a governance mechanism within the Swell protocol, allowing token holders to participate in decentralized decision-making processes. The token is not intended to generate financial returns or profits, and any fluctuations in its market value are beyond the control of Swell and unrelated to its intended governance function. Swell does not promote or facilitate any secondary market activities for $SWELL tokens and does not encourage the use of $SWELL tokens for speculative purposes.
Participation in Governance Only: The primary function of the $SWELL token is to facilitate decentralized governance within the Swell protocol, allowing holders to contribute to decisions related to protocol updates, improvements, and community proposals. The $SWELL token does not confer any ownership rights, financial benefits, or claims to profits, and its value is not tied to the performance of the protocol or any external factors. The $SWELL token is exclusively for governance participation.
Secondary Market Transactions: To the extent that $SWELL tokens are traded on secondary markets, Swell does not control, promote, or facilitate such transactions. Users who choose to trade $SWELL tokens do so at their own risk and responsibility. Swell does not encourage or facilitate the use of $SWELL tokens as a speculative investment.

7. User Obligations and Compliance

By using the Services, you agree to comply with all applicable local, national, and international laws and regulations, including but not limited to:

Anti-Money Laundering (AML) regulations.
Counter-Terrorism Financing (CTF) laws.
Know Your Customer (KYC) requirements (where applicable).

7.1. Prohibited Activities

You agree not to:

Use the Services for any illegal purposes, including but not limited to money laundering, terrorist financing, or other financial crimes.
Use the Services with Digital Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including, without limitation, terrorism or tax evasion.
Circumvent any restrictions or prohibitions provided for in these Terms.
Interfere with or disrupt the integrity or performance of the Services.
Use any automated means to access the Services or extract data.
Impersonate or misrepresent your affiliation with any person or entity.
Engage in any activity that could harm the Services or users.
provide any false, inaccurate or misleading information while using the Services, or engage in any activity that operates to defraud the Company, other Users, or any other person or entity.

7.2. Compliance

Failure to comply with these Terms may result in:

Suspension or termination of your access to Swell and the Services, with or without notice to you
Legal consequences (including without limitation, civil or criminal action being taken against you).

7.3. Reinforced Compliance with AML/KYC Regulations

Enhanced Due Diligence Procedures

In order to comply with Anti-Money Laundering (AML), Counter-Terrorism Financing (CTF), and Know Your Customer (KYC) regulations, Swell applies enhanced due diligence procedures. All users must undergo a stringent KYC verification process before accessing or using key functionalities of the Services, such as staking and governance participation.

Swell reserves the right to:

Request Additional Documentation: At any time, Swell may request further documentation or verification from users to confirm their identity and residency.
Refuse Service: Refuse to provide Services to any user who does not meet Swell’s compliance standards or fails to provide satisfactory verification.
Report Suspicious Activity: Report any suspicious activity to relevant regulatory authorities in accordance with applicable laws and regulations.

Users agree to comply with all AML, CTF, and KYC requirements and acknowledge that failure to do so may result in account suspension, termination, or legal action.

7.4. Monitoring

Although the Company is not obligated to monitor access to or participation in the Services, it has the right to do so for the purpose of operating the Services, to ensure compliance with the Terms and to comply with applicable law or other legal requirements. The Company reserves the right to refer any violations of the Terms to, and to cooperate with, any and all applicable legal authorities.

8. Risk Disclosures

By using the Services, you acknowledge and accept the following risks:

8.1. Blockchain Risks

Slashing and Penalties: Validators may be penalized or slashed by the network, resulting in loss of staked Digital Assets.
Smart Contract Failures: Smart contracts may contain vulnerabilities, bugs, or errors.
Network Disruptions: Blockchain networks are subject to congestion, downtime, or changes in protocol rules.
No Control Over Protocols: Swell does not control the underlying blockchain protocols.

8.2. Market Risks

Digital Assets are highly volatile.
The value of your staked Digital Assets, rewards, or tokens may fluctuate significantly.

8.3. Regulatory Risks

Regulatory environments are continuously evolving.
Future regulatory actions may impact your use of the Services.

8.4. Technology Risks

Use of the Services involves technology risks, including internet connectivity issues, hardware or software malfunctions, and cybersecurity threats.
Reliance on Experimental Technology: Transactions rely on smart contracts and other nascent technologies.

8.5. No Financial Advice

Swell does not provide financial, investment, or legal advice.
Users are solely responsible for evaluating the merits and risks associated with the use of the Services.

8.6. Internet Transmission Risks

There are risks associated with utilizing an internet-based protocol, including hardware, software, and internet connection failures.

8.7. Regulatory Changes and SEC Compliance Monitoring

Monitoring and Compliance with Regulatory Changes

Swell operates in a highly dynamic regulatory environment, and the regulatory treatment of Digital Assets, staking, and governance tokens may evolve over time. To ensure ongoing compliance:

Ongoing Legal Review: Swell regularly reviews its operations and token offerings to ensure compliance with relevant regulatory requirements, including U.S. Securities and Exchange Commission (SEC) rules, Commodity Futures Trading Commission (CFTC) regulations, and other applicable laws.
Adjustment to Services: In the event of regulatory changes, Swell reserves the right to modify, suspend, or discontinue certain aspects of the Services to ensure compliance with new laws or regulations.
Notice of Regulatory Action: Should Swell become subject to regulatory action by the SEC or any other governmental authority, we will notify affected users and take appropriate steps to rectify the situation, which may include restricting certain features or functionalities for users in certain jurisdictions.

8.8. General Disclaimer

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON ARE PROVIDED ON AN “AS IS”, “UNDER DEVELOPMENT”, "WITH ALL FAULTS" AND “AS AVAILABLE,” BASIS FOR USE, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED OR ERROR-FREE USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

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YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE COMPANY, ITS DIRECTORS, OFFICERS AND EMPLOYEES, NOR ITS SUPPLIERS, THIRD PARTY PARTNERS OR LICENSORS WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY OR THEFT OR MISAPPROPRIATION OF PROPERTY OR ANY OTHER THEORY (EVEN IF THE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON; THE USE OR THE INABILITY TO USE SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS, CONTENT OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON; ANY ACTIONS THE COMPANY TAKES OR FAILS TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT PARTICIPATION IN SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, IMAGES OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (III) USAGE DATA PROVIDED THROUGH SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON WILL BE ACCURATE, (III) SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (IV) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON WILL BE SECURE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT THE COMPANY, ITS DIRECTORS, OFFICERS AND EMPLOYEES HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO ITS GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

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YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND SUPPORTED BLOCKCHAINS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. THE COMPANY SHALL BE UNDER NO OBLIGATION TO INQUIRE INTO AND SHALL NOT BE LIABLE FOR ANY DAMAGES, OTHER LIABILITIES OR HARM TO ANY PERSON OR ENTITY RELATING TO ANY LOSSES, DELAYS,FAILURES, ERRORS, INTERRUPTIONS OR LOSS OF DATA OCCURRING DIRECTLY OR INDIRECTLY BY REASON OF CIRCUMSTANCES BEYOND COMPANY’S CONTROL, INCLUDING WITHOUT LIMITATION THROUGH THE DEPLOYMENT OF USER ASSETS TO ANY SUPPORTED BLOCKCHAIN IN CONNECTION WITH THE SERVICES

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THE COMPANY, ITS DIRECTORS, OFFICERS AND EMPLOYEES WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF ANY DIGITAL WALLETS OR THE ETHEREUM NETWORK OR OTHER APPLICABLE BLOCKCHAIN, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR, SUCH AS FORGOTTEN OR COMPROMISED PASSWORDS OR SEED PHRASES OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) INTELLECTUAL PROPERTY INFRINGEMENT BY THE USERS; (E) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST SWELL, THE SERVICES AND ANY FEATURE AND ANY CONTENT MADE AVAILABLE THEREON, ANY DIGITAL WALLETS OR THE ETHEREUM NETWORK.

9. Platform Fees

9.1. Fee Structure

Swell may charge fees for certain services, including:

Staking Fees: A percentage fee applied to staking rewards.
Platform Commission: Charged in connection with the use of the Platform for the provision of Staking Services.
Transaction Fees: Fees for facilitating transfers of Digital Assets.
Withdrawal Fees: Fees for unstaking or withdrawing Digital Assets.

By using the Services, you agree to pay any such fees or charges imposed for the use of such Services.

9.2. Fee Changes

All fees are subject to change based on network or operational requirements.

Note: Gas fees or transaction fees are charged on the deposit, withdrawal, conversion, swaps, or other transactions relating to the Digital Assets carried out via the Services. These fees often fluctuate based on a number of factors, all of which are not under our control, and may therefore change at any time without notice. Gas fees are paid to the third parties and/or network of computers that operate the blockchain and/or process the transactions and are not paid to us. Kindly note that gas fees and other transaction fees or charges often fluctuate based on a number of factors, all of which are not under our control.
Changes to fees will be communicated in advance through updates to these Terms or via notification on the website.

Those fees may change at any time without notice.

9.4. Payment Processing

Any transactions or payments made through any of the Services will be processed through the blockchain or such other payment gateway or process as may be determined by us or by the relevant third party service provider (collectively, the “Payment Process”). We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions made via the Payment Process. You acknowledge that we have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions you made via any of the Services, including, but not limited to, instances where your payment was not properly processed on the Payment Process. It is solely your responsibility to confirm that your payment for any transaction made on the Services (each a “Transaction”) has been processed and completed successfully. We do not provide refunds for any Transactions that you might make on or through the Services.

9.5. Taxes

You are solely responsible for determining and paying (or reimbursing for the payment of) any and all sales, use, value-added and other taxes, duties, and assessments (excluding taxes imposed on our net income) now or hereafter claimed or imposed by any tax or other governmental authority associated with your use of the Platform (collectively, the “Taxes”). You will pay or reimburse us for all Taxes of any jurisdiction (whether national, federal, state, local, foreign or other), including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, federal, state, local, foreign or other taxing jurisdiction; and will not be entitled to deduct the amount of any such Taxes or amounts levied in lieu thereof from payments (including gas fees) made to us pursuant to these Terms.

9.6 Promotions

The Company may from time to time make available certain conditional offers, airdrops, promotional prices, or discounted fees (each, a “Promotion”) to new or existing Users of the Services. The rules governing such Promotion will be made available in connection with such Promotion.The Company will determine your eligibility for any Promotion in its sole discretion and may change the terms of or terminate a Promotion at any time, with or without notice to you.

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10. Intellectual Property Rights

10.1. Ownership

All content, features, and functionality of the Services, including but not limited to information, software, text, displays, images, video, audio, design, selection, and arrangement thereof, are owned by Swell, its licensors, or other providers and are protected by international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. The Services may contain materials licensed by third-parties to the Company, and these third-parties may enforce their ownership rights against you in the event that you violate these Terms. Nothing in these Terms shall be interpreted as granting any license of intellectual property rights to you other than as explicitly set forth in these Terms.

10.2. License to Use

You are granted a limited, non-exclusive, and revocable license to access and use the Services for your personal, non-commercial use, provided you comply with these Terms.

10.3. Prohibited Use of IP

Without prior written consent, you may not:

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.
Use any of the Services, or any trademarks, logos, or content associated with Swell for commercial purposes.
Reverse engineer or attempt to extract the source code.
Remove, delete or obscure any trademark notice, copyright notice or other intellectual property notice in any part of Swell or the Services.
do anything that infringes, violates or misappropriates the exclusive rights belonging to us.

10.4. Trademarks

The Swell name, logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Swell or its affiliates or licensors. Unauthorized use of the Swell Marks is strictly prohibited. The animations, page headers, custom graphics, button icons, style sheets and scripts that contribute to the “look and feel” of the Services are service marks, trademarks and/or trade dress that belong to us and may not be copied, imitated or used, in whole or in part, in connection with any product or service that is not expressly authorized by us in writing, in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Swell, the Services or the Company.

10.5. Feedback

You may choose to submit comments, bug reports, ideas or other feedback about Swell and the Services, including, without limitation, about how to improve Swell, the Services and/or any of the features or content provided thereon through the email address provided at the end of these Terms (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.

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11. Limitation of Liability

The Terms are not intended to, and do not, create or impose any fiduciary duties or any similar obligation on the Company to the user. To the fullest extent permitted by law, you acknowledge and agree that the Company owes no fiduciary duties or liabilities to you or any other party. To the extent, any such duties or liabilities may exist at law or in equity, you hereby undertake that those duties and liabilities are irrevocably disclaimed, waived, and eliminated.

To the fullest extent permitted by applicable law, Swell and its affiliates shall not be liable for any:

Direct, indirect, incidental, special, consequential, or punitive damages.
Loss of profits, data, or other intangible losses resulting from your access to or use of the Services.

This limitation applies to any damages arising from:

Your use or inability to use the Services.
Unauthorized access or alteration of your transmissions or data.
Any content or services obtained through the Platform.
Any other matter related to the Platform.

Maximum Liability: In no event will the aggregate liability of Swell exceed:

(A) Any Platform Commission paid by you to the Company in the preceding three months of such claim; or
(B) Where no Platform Commission was paid during that period, the sum of USD 100.

12. Indemnification

You agree to indemnify, defend, and hold harmless Swell, its affiliates, and their respective directors, officers, employees, and agents (the “Indemnified Parties”) from and against all claims, liabilities, damages, losses, costs, expenses, or fees arising out of or related to:

Your use or misuse of the Services.
Your violation of these Terms or any applicable law or regulation.
Your violation of any rights of a third party.

13. Service Modifications and Termination

13.1. Modifications

Swell reserves the right to modify, suspend, or discontinue any part of the Services at any time without prior notice or liability for reasons including but not limited to:

Scheduled maintenance.
Updates to improve platform functionality.
Unforeseen technical or security issues.

13.2. Maintenance and Downtime

The Services may be periodically unavailable during scheduled maintenance or unscheduled downtime.

Swell is not liable for any inconvenience or damage due to such stoppages.

13.3. Termination

We may terminate or suspend your access to the Platform immediately, without prior notice or liability, if you breach these Terms or engage in unlawful activities.

Upon termination:some text
- Your right to use the Services will cease immediately.
- Provisions that should survive termination will remain in effect (e.g., intellectual property rights, indemnification, limitation of liability).

14. Governing Law and Dispute Resolution

14.1. Governing Law

These Terms shall be governed by and construed in accordance with the laws of the Cayman Islands, without regard to its conflict of law principles.

14.2. Arbitration

Any dispute arising out of or relating to these Terms or the Services will be resolved by binding arbitration under the rules of the Cayman Islands Arbitration Centre.

The arbitration will be conducted by a single arbitrator.
The proceedings will take place in the Cayman Islands, and the language will be English.
Each party shall bear its own costs, except that the fees and expenses of the arbitrator shall be divided equally.

14.3. Class Action Waiver

You agree that any dispute resolution proceedings will be conducted individually and not in a class, consolidated, or representative action. The arbitrator shall construe the agreement to arbitrate and the agreement to waive class or collective actions in any manner that will render them enforceable and give them effect. If, for any reason, this class or collective action waiver is deemed unenforceable by an arbitrator, you agree that the parties’ contract to arbitrate is then entirely void.

If any portion of these Terms other than the class action waiver is found illegal or unenforceable, such portion shall be severed and the remainder of these Terms shall be given full force and effect. Any Dispute subject to any such portion of these Terms shall be decided by the arbitrator.

14.4. Notice of Dispute

You must notify Swell in writing of any dispute within 30 days of the date it arises.

Notice to Swell shall be sent by email to info@overflowfoundation.io.

14.5. Equitable Remedies

You agree that the Company may be irreparably damaged if the sections of these Terms were not specifically followed and enforced. In such an event, you agree that the Company shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event you breach these Terms; and that the awarding of equitable relief to the Company will not limit its ability to receive remedies that are otherwise available to the Company under applicable laws.

15. Severability

If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction:

The remaining provisions shall continue in full force and effect.
The invalid provision will be replaced by a valid provision that most closely reflects the original intent.

16. Waiver

No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision. The failure to assert any right under these Terms shall not constitute a waiver of such right.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE SERVICES, OR ANY OTHER WEBSITE, APPLICATION, CONTENT, SUBMISSION, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY ANY OF THE INDEMNIFIED PARTIES.

17. Force Majeure

Neither party shall be liable for any failure or delay in performance under these Terms due to circumstances beyond their reasonable control, including but not limited to:

Acts of God.
War, riots, or civil unrest.
Government actions or regulations.
Natural disasters, pandemics, or epidemics.
Interruptions to internet or blockchain network services.

18. Notices

Any legal notices or other communications provided by Swell to you under these Terms will be:

Sent to the email address associated with your account.
Displayed on the website.

For all notices made by email, the date of receipt is considered to be the date of transmission.

19. Amendments to these Terms

Swell may create updated versions of these Terms (each a set of “New Terms”) as its business and the law evolves.

These Terms will terminate immediately upon the introduction of a New Terms. New Terms will not be applied retroactively and cannot alter the process for resolving a Dispute between us once you have notified the Company of a Dispute.
If you do not wish to be bound by the New Terms, you must immediately cease using the Services. Your continued use of the Services made available thereon after the Company has published any New Terms constitutes acceptance by you of the New Terms.

20. Entire Agreement

These Terms, along with the Privacy Policy and any other agreements or notices provided to you by Swell, constitute the entire agreement between you and Swell regarding your use of the Services and supersede all prior agreements and understandings.

21. Assignment

Swell may transfer or assign its rights and obligations under these Terms without notifying you or obtaining your consent.
You may not transfer or assign your rights and obligations under these Terms.

22. Relationship of the Parties

Nothing in these Terms shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind. Except for the indemnity and exculpation provisions herein, these Terms are intended to be and are for the exclusive benefit of you and Swell.

23. Third-Party Services and Content

23.1. Third-Party Service Providers

When you use the Services, you may also be using the functionality, application, software or service of one or more third party service providers (“Third Party Providers”). Your use of those and other third-party functionality, application, software or service (each a "Third-Party Service") will be subject to the privacy policies, terms of use and similar policies and terms, and fees of those Third Party Providers.
Swell may use third parties to gather, review, and transmit your data.
By using the Services, you grant third-party providers the right to access and transmit your data in accordance with their terms and policies.

23.2. Third-Party Websites

The Services made available thereon may contain links to Third-Party Services, and may leverage or plug into such Third-Party Services to enable certain features.
When using such a Third-Party Service, you understand that you are at no time transferring your Digital Assets or private keys to us.
We provide the Services and access to the other Third-Party Services only as a convenience, and we do not have control over their content, and we do not warrant or endorse, and are not responsible for the availability or legitimacy of, the content, products or functionality made accessible via any Third Party Providers (including any related website, resources or links displayed therein). We make no warranties or representations, express or implied, about any linked Third-Party Services, the third parties they are owned and operated by, the information contained on them or the suitability of their products or services. You acknowledge sole responsibility for and assume all risk arising from your use of any Third-Party Service including any third-party website, applications, or resources. When you click on such a link, we may not warn you that you have left our Services.
You may be able to link your Wallet to your accounts on third-party platforms, sites and services, to enable access to such accounts from your Wallet. In doing so, you understand and agree that all transactions made when accessing such accounts from your Wallet are subject to these Terms and to the terms of use, privacy policies, and other terms, conditions and policies imposed by the providers of such third-party sites, services and platforms.

23.3. Third-Party Information Accuracy

Information provided by third parties is not guaranteed to be accurate, complete, or current.
Swell is not responsible for any errors or omissions in such information.

24. Cookies and Tracking Technologies

When you access the Services, we may use cookies and other tracking technologies to:

Recognize you as a user.
Customize our services and content.
Collect information about your computer or other access devices.

If you block or delete cookies, we may not be able to provide you with all of the Services.

25. Privacy and Data Protection

Our Privacy Policy, available on our website, describes how we handle the information you provide to us when you use our Services. By using the Services, you consent to the collection and use of this information as set forth in the Privacy Policy.

26. Contact Information

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You may contact us regarding the Services or these Terms by email at info@swellnetwork.io.

By using the Swell website and Services, you acknowledge that you have read these Terms of Service, understand them, and agree to be bound by them.

Last Updated: October 13, 2024

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