Supplemental USDe Terms and Conditions

Asset-referenced Tokens - By Ethena GmbH

INTRODUCTION

These supplemental terms and conditions, together with any schedules and policies referred to in them (together, the “Terms and Conditions” and each, a “Condition”) are applicable to the USDe Tokens (the “Tokens”) issued by Ethena GmbH (the “Issuer”, “we”, “us”, “our”). These Terms and Conditions are supplemental to the Terms of Service provided at https://ethena-labs.gitbook.io/ethena-labs/resources/terms-of-service (the “Terms of Service”). Capitalized terms used in these Terms and Conditions that are not defined herein have the definitions ascribed to them in the Terms of Service.

You represent that you are at least the age of majority in your jurisdiction and have the full right, power, and authority to enter into and comply with the terms and conditions of these Terms and Conditions on behalf of yourself and any company or legal entity for which you may act. If you are entering into these Terms and Conditions on behalf of an entity, you represent to us that you have the legal authority to bind such entity.

You further represent that you are not (a) the subject of economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties or (b) a citizen, resident, or organized in a jurisdiction or territory that is the subject of comprehensive country-wide, territory-wide, or regional economic sanctions. Finally, you represent that you will fully comply with all applicable laws and regulations, and that you will not conduct, promote, or otherwise facilitate any illegal activity.

YOU AND WE AGREE AS FOLLOWS:

1. Interpretation

1.1. In these Terms and Conditions, the following words and expressions have the following meanings unless inconsistent with the context:

“Applicable Law(s)”	means all laws, statutes, regulatory rules, and regulations that apply to the Parties in connection with these Terms and Conditions from time to time;
“Blockchains”	means all blockchains on which the Issuer offers to distribute Tokens, including the Ethereum blockchain.
“Business Day”	means a day on which (i) relevant commercial banks are open, and/or (ii) banks in Frankfurt are open.
“Greenlisted”, “Greenlisting”	means the completion of both the onboarding as described in Condition 2 and the KYC/AML Requirements.
“Issuer”	means the Ethena GmbH, Kurfürstendamm 15, 10719 Berlin, Federal Republic of Germany, registered in the commercial register Berlin-Charlottenburg under the registration number HRB 264787 B;
“KYC/AML Requirements”	mean the know your client and anti-money laundering processes established by the Issuer to ensure compliance with Applicable Law;
“Party”, “Parties”	you and us as the parties to these Terms and Conditions.
“Token(s)”	are the digital USDe tokens distributed by the Issuer which have a smart contract that is implemented on the Blockchains.
“Tokenholder(s)”	shall mean any person holding rightful legal ownership of the private key in relation to a Token.
“Website”	means www.ethena.fi.

1.2. In these Terms and Conditions, unless the context otherwise requires: references to these Terms and Conditions shall include any Schedules to it and references to Clauses, Sub-clauses and any Schedules are to Clauses of, Sub-clauses of, and any Schedules to these Terms and Conditions; the singular includes the plural and vice versa; “person” denotes any person, partnership, corporation or other association of whatever nature; and any references to any directive, statute, statutory instrument, laws or regulations shall be references to such directive, statute, statutory instrument, laws or regulations as from time to time amended, re-enacted or replaced and to any codification, consolidation, re-enactment or substitution thereof as from time to time in force and any reference to a regulator or public authority and rules made by it shall include its successor and rules made by the successor which replace those rules.

1.3. Headings are for convenience only and have no bearing on the interpretation of these Terms and Conditions.

1.4. Any phrase introduced by the term “include”, “includes”, “including”, “for example”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.

1.5. References to “dealing in” or “deal in” are references to any participation in crypto assets including buying, acquiring, accepting, holding, selling, staking, disposing of or otherwise making use of crypto assets.

2. KYC/AML Requirements and Onboarding (Greenlisting)

2.1. In order to purchase and/or redeem Tokens with the Issuer directly, a successful onboarding of the user and completion of the KYC/AML Requirements by the user providing all required data and including confirmation that the user is eligible is required.

2.2. All natural and legal persons as well as partnerships with a legal personality are eligible to purchase and/or redeem Tokens if they are not a Prohibited Person.

2.3. The following information is required for onboarding if the user is a natural person:

a) All names and surnames of the user;

b) the declared place of residence including the complete address;

c) the user’s date of birth;

d) the user’s place of birth;

e) the nationality of the user;

f) the copy of an identity card or passport which has been issued by the competent authority to the user;

g) an e-mail address of the user; and

h) information to validate the source of funds / wealth.

Additional information may be required in enhanced due diligence processes.

2.4. The following information will be required for onboarding, if the user is an entity or a partnership with a legal personality:

a) complete legal form of the user;

b) statuary, respectively the in a public registry registered, place of business of the user including the complete address;

c) (if existing) the user’s registry number from the commercial registry or a comparable public registry;

d) name of the statutory authorized representative or representatives of the user;

e) an e-mail address of the user; and

f) proper corporate records such as Certificate of Incorporation or Good Standing, director’s register and others.

Additional information may be required in enhanced due diligence processes.

2.5. As part of the onboarding process, the user is asked to name at least one blockchain address on any of the Blockchains to which the Tokens can be transferred after successful completion of the onboarding process. Users may be asked to provide confirmation of ownership or control of each wallet. Wallet screens may be conducted as part of the onboarding process and on an ongoing basis.

2.6. In order for the onboarding to be successful it is required that the information provided by the user is

a) complete; and

b) that there is no indication that the user provided incorrect data.

2.7. The Issuer is entitled, but not obligated, to have the data provided during the onboarding process audited by a qualified third party.

2.8. The Issuer notifies the user if the onboarding and the completion of the KYC/AML Requirements was successful. The respective user is then considered as Greenlisted.

2.9. The user is obligated to notify the Issuer immediately if any of the information provided has changed. The Issuer may require periodic updates to information provided, during which time the user’s status as Greenlisted will be probationary and may be revoked pending the outcome of such updates, or in the case where the user does not comply with requests for updated information.

3. Properties of the Tokens

3.1. The Token intends to maintain a relatively stable value approximating USDC and other dollar-pegged stablecoins by utilizing a delta-neutral hedging mechanism. The Token derives its relative peg stability from executing automated and programmatic delta-neutral hedges with respect to the underlying reserve assets consisting of Ethereum or Bitcoin provided by Greenlisted users. The hedging mechanism is described in more detail at https://ethena-labs.gitbook.io/ethena-labs.

3.2. Tokens are created on basis of the blockchain technology as units of value on any of the Blockchains being directly transferable between users following distribution by the Issuer.

3.3. The Tokens are not designed to intrinsically create returns for Tokenholders, increase in value, or otherwise accrue financial benefit to Tokenholders. Tokenholders will not earn any interest or other returns simply by virtue of holding Tokens. Tokens should therefore not be considered by users as investments.

3.4. The Tokens are fully fungible and may be traded on exchanges. The Tokens may also be traded on a bilateral (OTC) or Peer to Peer basis directly on the blockchain.

4. Ordering Procedure and Delivery of Tokens

4.1. The minimum amount to be acquired from the Issuer by each user is determined based on the gas price charged by the Blockchain at the time of mint. If the gas cost to mint an amount of USDe exceeds the value of the USDe to be minted, the mint transaction will not process. There is otherwise no minimum subscription amount.

4.2. Anyone wishing to receive Tokens requires a wallet that is compatible with any of the Blockchains. The Issuer cannot accept orders without specifying a blockchain address (public key) in the online subscription process. A smartphone or a computer with internet access is necessary to create a wallet.

4.3. The Tokens may be acquired from the Issuer by submitting a purchase application to the Issuer on the Website. The user must provide the intended purchase amount and its wallet address on any of the Blockchains to which its Tokens are to be transferred, which may be done by connecting the Blockchain wallet provided during the Greenlisting process to the Website.

4.4. The purchase amount is due immediately after the acceptance of the offer by the Issuer. The user shall pay the purchase amount to (i) the Issuer via transfer to the relevant Blockchain smart contract, or (ii) to the extent the Issuer enables minting with fiat currency, the bank account specified by the Issuer.

4.5. The Issuer’s receipt of payment can be confirmed to the user by e-mail or by other means, including displaying confirmations on the Website following successful submission of a mint transaction.

4.6. A Tokenholder may dispose of its Tokens. The respective transaction is traceable for everyone over the respective Blockchain. A Tokenholder is expressly prohibited from knowingly transferring any Tokens to a Prohibited Person following acquisition.

5. Listing and Trading of the Token

5.1. Currently, the Tokens are listed on certain “centralized” exchanges and are available via blockchain-based automated market maker applications. Tokenholders understand and acknowledge that:

a) there can be no assurances that the Tokens will be admitted to trading on an exchange or that such trading will continue indefinitely and nothing in these Terms and Conditions shall be construed as constituting a warranty or promise to that effect; and

b) unless Tokens are admitted to trading on a centralized exchange, the trading of Tokens will be possible only on a Peer-to-Peer basis.

5.2. The Issuer may at any time purchase Tokens from Tokenholders in the secondary market and may hold, resell or burn such Tokens. Any such purchase will be made on an arm’s length basis at the prevailing market price and in accordance with Applicable Law.

6. Exercise of Rights

6.1. The Issuer will recognize and acknowledge as Tokenholders only those persons who both (i) hold Tokens and (ii) have successfully completed the KYC/AML Requirements and are, at the time of determination under this paragraph, Greenlisted.

6.2. Various functionalities of the Tokens, including, but not limited to, the issuance and the transfer of Tokens and the redemption of the Tokens, are available only with the private key associated with the wallet controlling such Tokens. Each Tokenholder agrees that the Issuer shall not be held liable and waive any claim against the Issuer to the fullest extent permitted by Applicable Law, for any loss or damages resulting from the loss or theft of its private key, including, but not limited to, any claims for indirect or consequential and additional expenses.

7. Redemption

7.1. Every Tokenholder can request a redemption of all or part of their Tokens on demand at the value representing the Token’s share in the asset reserve. While the value of the underlying spot crypto asset may fluctuate, the Issuer employs hedging strategies to keep these fluctuations minimal as described in more detail at https://ethena-labs.gitbook.io/ethena-labs. Redemption requests will be satisfied by the Issuer in accordance with Applicable Laws. Where the withdrawal payment is received by a Tokenholder through the involvement of a payment service provider, the Issuer shall not be responsible for the withdrawal payment once the withdrawn funds are received by the payment service provider of the Issuer.

7.2. Every withdrawal request is subject to withdrawal limits. These limits are adjusted dynamically depending on the type of identification documentation required, as well as market conditions. If a withdrawal request exceeds the current limit, the Issuer may decline the request and instead require the Tokenholder to submit documents verifying its identity and address prior to allowing a withdrawal of funds or to otherwise cooperate with the Issuer to verify its identity or to submit a new request in line with market conditions, if applicable.

7.3. Every Tokenholder must ensure that the payment details it enters when redeeming Tokens are correct and complete. The Issuer is not liable for withdrawn assets being sent to the wrong account where this is due to the Tokenholder providing incorrect payment details.

7.4. No redemption transaction is processed until a Tokenholder requests, and is provided with, a price quote by submitting such request on app.ethena.fi. The price quote is determined by assuming, as a baseline, that 1 USDe = 1 USDC; however, in the case where an adverse event has occurred that reduces the value of the asset reserve, the price quote will include a reduction to reflect a pro-rata reduction in the redemption pricing accordingly, and the pricing quote displayed to the user includes a reimbursement charge of 10 basis points. This charge is not retained by the Issuer for its own account and is intended solely to cover certain costs associated with the architecture, namely execution costs for hedges and blockchain gas fees.

8. Limited Recourse

Notwithstanding anything to the contrary herein, no recourse (whether by institution or enforcement of any legal proceeding or assessment or otherwise) in respect of any breaches of any duty, obligation or undertaking of the Issuer arising under or in connection with the Tokens (as from time to time supplemented or modified in accordance with the provisions herein contained) by virtue of any law, statute or otherwise shall be held against any shareholder, officer, manager or corporate services provider of the Issuer in their capacity as such, save in the case of their gross negligence, willful default or actual fraud, and any and all personal liability of every such shareholder, officer, manager of corporate services provider in their capacity as such for any breaches by the Issuer of any such duty, obligation or undertaking shall be waived and excluded to the extent permitted by law.This provision shall survive the redemption and burning of the Tokens.

9. Modification of the Smart Contract

9.1. The smart contract underlying the Tokens may have a mechanism that allows the Issuer (or an affiliate of the Issuer) to modify the corresponding source code. However, this mechanism may only be used in order to

a) address security issues of the underlying smart contract;

b) correct unintended deviations from the provisions of these Terms and Conditions;

c) change the structure of the source code, class interfaces, control flow, as far as this does not contradict these Terms and Conditions; or

d) change elements of the smart contract that have become ineffective or impractical due to external effects.

9.2. If changes to the smart contract are required pursuant to Condition 9.1, the Issuer shall be entitled to amend these Terms and Conditions accordingly. The Tokenholders shall be notified of any such amendments with a notice according to Condition 13 (Notice).

10. Substitution of the Issuer

10.1. The Issuer may, without the consent of the Tokenholders, at any time substitute itself in respect of all rights and obligations arising under or in connection with the Tokens with any legal entity of which all shares carrying voting rights are directly or indirectly held by the Issuer (the “New Issuer”), provided that:

a) the New Issuer is able to fulfil all payment obligations arising from or in connection with the Tokens; and

b) the Issuer has issued an irrevocable and unconditional guarantee in respect of the obligations of the New Issuer under the Tokens.

10.2. In the event of a substitution of the Issuer, notice of such substitution shall be made in accordance with Condition 13 (Notice) and any reference to the Issuer shall be deemed to refer to the New Issuer.

11. No Set-off

No Tokenholder may set-off any claims arising under the Tokens against any claims that the Issuer may have against it. The Issuer may not set-off any claims it may have against the Tokenholder against any of its obligations under the Tokens.

12. Modification Clause

12.1. If these Terms and Conditions contain manifest typographical errors or misspellings, the Issuer shall be entitled to correct such errors or misspellings without obtaining the Tokenholders’ consent, provided that such correction, taking into account the Issuer’s interests, can reasonably be assumed to be acceptable to the Tokenholders and, in particular, does not materially adversely affect the Tokenholders’ legal and financial position. Any such corrections shall be announced to the Tokenholders in accordance with Condition 13 (Notice).

12.2. If these Terms and Conditions contain manifest calculation errors, the Issuer shall be entitled to correct such errors without obtaining the Tokenholders’ consent, provided that such correction, taking into account the Issuer’s interests, can reasonably be assumed to be acceptable to the Tokenholders and, in particular, does not materially adversely affect the Tokenholders’ legal and financial position. Any such corrections shall be announced to the Tokenholders in accordance with Condition 13 (Notice).

12.3. If these Terms and Conditions contain any similar manifest errors, the Issuer shall be entitled to correct such errors without obtaining the Tokenholders’ consent, provided that such correction, taking into account the Issuer’s interests, can reasonably be assumed to be acceptable to the Tokenholders and, in particular, does not materially adversely affect the Tokenholders’ legal and financial position. Any such corrections shall be announced to the Tokenholders in accordance with Condition 13 (Notice).

12.4. Any other inconsistencies or omissions in these Terms and Conditions may be corrected or supplemented by the Issuer in its reasonable discretion (Section 315 BGB). However, only such corrections or supplements shall be permitted as – taking into account the Issuer’s interests – can reasonably be assumed to be acceptable to the Tokenholders and, in particular, do not materially adversely affect the Tokenholders’ legal and financial position. Any such corrections or supplements shall be announced to the Tokenholders in accordance with Condition 13 (Notice).

12.5. Manifest typographical errors or misspellings and similar manifest errors in these Terms and Conditions shall entitle the Issuer to a right of avoidance (Anfechtung) vis-à- vis the Tokenholders. Such right of avoidance may only be exercised consistently vis-à-vis all Tokenholders and without undue delay after having become aware of the relevant reason entitling to the right of avoidance. The right of avoidance shall be exercised by announcement in accordance with Condition 13 (Notice).

12.6. Manifest calculation errors and similar manifest errors in these Terms and Conditions shall entitle the Issuer to a right of avoidance (Anfechtung) vis-à-vis the Tokenholders. Such right of avoidance may only be exercised consistently vis-à-vis all Tokenholders and without undue delay after having become aware of the relevant reason entitling to the right of avoidance. The right of avoidance shall be exercised by announcement in accordance with Condition 13 (Notice).

13. Notice

All notices regarding the Tokens shall be published on the Website.

14. Taxes

14.1. All payments made by or on behalf of the Issuer in respect of the Tokens will be made free from any restriction or condition and be made without deduction or withholding for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Federal Republic of Germany, unless deduction or withholding of such taxes, duties, assessments or governmental charges is required to be made by Applicable Law.

14.2. The tax treatment for each user depends on the particular situation. All users are advised to consult with their professional tax advisers as to the respective German tax consequences of the purchase, ownership, disposition, lapse, exercise or redemption of Tokens in light of their particular circumstances.

15. Intellectual Property Rights

15.1. The Issuer and its affiliated companies own all intellectual property and other rights in each of the products and its respective contents, including, but not limited to, software, text, images, trademarks, service marks, copyrights, patents, designs, and its look and feel. This intellectual property is available under the terms of our copyright licenses and our trademark guidelines. Subject to these Terms and Conditions, the Issuer and its affiliated companies grant the users a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use their products solely in accordance with these Terms and Conditions. You agree that you will not use, modify, distribute, tamper with, reverse engineer, disassemble or decompile any of our products for any purpose other than as expressly permitted pursuant to these Terms and Conditions. Except as set forth in these Terms and Conditions, the Issuer and its affiliated companies grant the users no rights to any of their products, including any intellectual property rights.

15.2. By using any of the products of the Issuer or its affiliated companies, users grant them a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any content, including but not limited to text, materials, images, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data, or otherwise, that users post on or through any of the products of the Issuer or its affiliated companies for current and future business purposes of the Issuer or its affiliated companies, including to provide, promote, and improve the services.

16. Limitation of Liability

16.1. Unless explicitly otherwise provided in these Terms and Conditions, (i) any right of you to rescind from these Terms and Conditions; (ii) any claim for defects of a purchase object under Sections 437 through 441 BGB; (iii) any claim for breach of pre-contractual obligations (culpa in contrahendo, Sections 241 (2), 311 (2) (3) BGB); and (iv) any claim for frustration of contract pursuant to Section 313 BGB, shall be excluded, save for any remedies of you based on willful deceit, intentional breach of contract or gross negligence, provided, however, that our liability for willful deceit, intentional breach of contract or gross negligence of any person assisting us in the performance of our obligations in the meaning of Section 278 BGB shall be excluded.

16.2. Unless explicitly stated otherwise in these Terms and Conditions, the Issuer shall not be held liable for any damages, losses, claims, costs, expenses or other liabilities, whether direct, indirect, consequential or otherwise, arising from the conduct of any third party not directly under the control and supervision of the Issuer including, but not limited to, independent contractors, partners, affiliates, suppliers, banks, brokerage firms, customers, or any other third parties interacting with, or acting on behalf of, the Issuer. Notwithstanding the foregoing, nothing in this Condition shall limit or exclude the Issuer’s liability where the third party was acting under the direct instruction, authority, or control of the Issuer, or where the conduct of the third party was otherwise foreseeable and preventable.

16.3. In the case of simple negligence, the Issuer shall only be liable for damages arising from injury to life, body, or health, as well as for damages arising from the breach of a material contractual obligation (cardinal duty). A material contractual obligation is an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies. In such cases, the liability of the Issuer shall be limited to the typical, foreseeable damage.

17. Non-Custodial and No Fiduciary Duties

17.1. We do not ever have custody, possession, or control of your digital assets at any time. You are solely responsible for the custody of the cryptographic private keys to the digital asset wallets you hold, and you should never share your wallet credentials or seed phrase with anyone. We accept no responsibility for, or liability to you, in connection with your use of a wallet. Likewise, you are solely responsible for any associated wallet and we are not liable for any acts or omissions by you in connection with or as a result of your wallet being compromised.

17.2. These Terms and Conditions is not intended to, and does not, create or impose any fiduciary duties on us. To the fullest extent permitted by law, you acknowledge and agree that we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, those duties and liabilities are hereby irrevocably disclaimed, waived, and eliminated. You further agree that the only duties and obligations that we owe you are those set out expressly in these Terms and Conditions.

18. Governing Law and Jurisdiction

18.1. These Terms and Conditions and the Tokens are exclusively subject to the laws of the Federal Republic of Germany with the exclusion of the conflict-of-law rules of the international private law and the UN sales convention (CISG).

18.2. The place of performance and sole legal venue for all disputes arising from the legal relationships regulated under these Terms and Conditions is the respective business seat of the Issuer unless mandatory statutory provisions contradict and the parties are merchants, legal persons under public law or a special fund under public law or at least one of the parties has no place of general jurisdiction within the Federal Republic of Germany. The Issuer’s business seat at the time of the first launch of the Tokens is in Hamburg.

19. Severability

If at any time one or more of the provisions of these Terms and Conditions is or becomes unlawful, invalid, illegal or unenforceable in any respect under any Applicable Law, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired thereby.

20. Miscellaneous

20.1. We do not provide, nor do we accept responsibility for, any legal, tax or accounting advice. If you are unsure regarding any of the legal, tax or accounting aspects of these Terms and Conditions or dealing in Tokens you should seek independent professional advice.

20.2. No waiver or variation of any part of these Terms and Conditions by us shall be effective unless in writing and signed by us. No waiver of any provision in these Terms and Conditions will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of these Terms and Conditions will not in any way affect, limit, or waive our rights hereunder at any time to enforce strict compliance thereafter with every term and condition of these Terms and Conditions.

20.3. No other document or communication may modify or add any additional obligations or covenants on us beyond those set forth in these Terms and Conditions, unless we clearly, specifically and explicitly state otherwise in that document.