Nexo Exchange Service General Terms and Conditions
These Nexo Exchange Service General Terms and Conditions (“General Terms”) govern the contractual relations between you (“Client” or “you”) and any holding company, subsidiary or entity belonging to the Nexo group of companies (“Nexo” or “we”), while you and Nexo are hereinafter separately referred to as “Party” and jointly - as “Parties”, in regard to your use of the Nexo Exchange Service, and constitute a legally binding agreement (“Agreement”) between the Parties.
- Base Asset means the first Digital Asset in the Trading Pair, as indicated on the Nexo Platform and in the Nexo Account, which may be chosen by you for the purpose of an Exchange Transaction;
- Counter Asset means the second Digital Asset in the Trading Pair, as indicated on the Nexo Platform and in the Nexo Account, which may be chosen by you for the purpose of an Exchange Transaction;
- Exchange means any exchange used by Nexo for the purpose of an Exchange Transaction;
- Exchange Price means the price at which the Exchange Transaction is executed by Nexo, including the relevant fees, if any;
- Exchange Transaction means a sale transaction regarding a Trading Pair initiated by the Client in the Nexo Account, by an Order to Nexo to place a sale order with an Exchange and execute a sale transaction thereon, and/or the sale transaction executed by Nexo on the relevant Exchange;
- Trading Pair means a Base Asset and a Counter Asset, regarding which an Exchange Transaction is initiated by the Client and/or executed by Nexo;
- Order means an instruction from you to Nexo to execute an Exchange Transaction and top up the proceeds thereof, respectively the relevant Counter Assets, into your Savings or Credit Wallet, as the case may be.
Unless stated otherwise, references shall be made to the Nexo Wallet Services General Terms and Conditions and the Nexo Crypto Credit General Terms and Conditions, and all the defined terms, used in these General Terms, shall have the same meaning as the one given to them in the Nexo Wallet Services General Terms and Conditions or the Nexo Crypto Credit General Terms and Conditions, as the case may be.
- You can enter into this Agreement and use the Nexo Exchange Service only if all of the conditions below are met:
- You have opened a Nexo Account, respectively have met the conditions under Art. IV.1, Items 1.1, 1.2, 1.4 - 1.8 of the Nexo Wallet Services General Terms and Conditions;
- You are not a citizen or resident of Bulgaria, Estonia, Australia, the States of New York and Vermont, other jurisdictions specified on the Nexo Platform (applicable only to the cases under Art. V.1.), as well as Canada and the United States (applicable only to the Nexo Booster), and you do not have any relevant connection with any jurisdiction where we have prohibited or restricted access to the Nexo Exchange Service;
- You have passed Advanced Verification on the Nexo Platform (applicable only to the cases where the Base Asset is EURx/GBPx/USDx).
- By entering into this Agreement, you acknowledge and confirm that you meet all the conditions set out above. In the event that we subsequently ascertain that you have not met or do not meet any of these conditions anymore, we may suspend the provision of the Nexo Exchange Service and/or other Nexo Wallet Services to you and close your Nexo Account, and do not allow you to use the Nexo Exchange Service and/or the other Nexo Wallet Services.
- At any time, at our sole and absolute discretion, without liability to you, we can: (i) refuse your request to use the Nexo Exchange Service; (ii) change the conditions for entering into the Agreement or use of the Nexo Exchange Service; (iii) suspend the provision of the Nexo Exchange Service or of all or part of the other Nexo Wallet Services; or (iv) change, update, remove, cancel, suspend, disable or discontinue any features, component, content, incentive or referral plan of the Nexo Exchange Service.
IV. SPECIFIC FEATURES OF THE NEXO EXCHANGE SERVICE
- The Nexo Exchange Service allows you to initiate the execution of an Exchange Transaction, using the Base Assets in your Savings or Credit Wallet, and the subsequent topping up of the proceeds thereof, respectively the relevant Counter Assets, into the same Savings or Credit Wallet. You cannot initiate an Exchange Transaction using Base Assets in your Credit Wallet when these Base Assets serve as Collateral of a current Nexo Crypto Credit and the LTV applicable thereto exceeds the LTV applicable to the Counter Assets intended to serve as Collateral of the same Nexo Crypto Credit instead of the Base Assets, as indicated on the Nexo Platform and in the Nexo Account.
- You may only initiate an Exchange Transaction regarding the Trading Pairs and within the limits as indicated on the Nexo Platform and in the Nexo Account, which are subject to revision from time to time at our sole and absolute discretion.
V. INITIATION AND EXECUTION OF EXCHANGE TRANSACTIONS
- You must select the type and amount of the Base Asset you wish to sell and the Counter Asset you wish to buy, thus selecting the Trading Pair, before you place an Order with Nexo. If you do not have the Base Asset needed for the execution of an Exchange Transaction (applicable only to the cases where the Base Asset is EURx/GBPx/USDx), you may initiate the execution of a purchase transaction in accordance with Art. V.5.(ii) of the Nexo Wallet Services General Terms and Conditions, a subsequent Exchange Transaction, and the topping-up of the proceeds of the latter, respectively the relevant Counter Asset, into your Savings Wallet. For the avoidance of doubt, the relevant Counter Asset will be topped up into your Savings Wallet only under the condition that both the purchase transaction and the Exchange Transaction under the preceding sentence have been executed.
- The Exchange Transactions are irreversible and final once you have provided the relevant instructions to Nexo, and you may not change, withdraw or cancel the Order to Nexo to complete any pending or partially completed Exchange Transaction. You are responsible for all Orders you place and your decisions to sell, implement and maintain the Digital Assets in your Nexo Account. Nexo shall not be liable for any partially completed Exchange Transactions.
- After you have selected the Trading Pair, if the Exchange Transaction can be executed by Nexo, the latter will show you the relevant Exchange Price in the Nexo Account. If the Exchange Transaction can be executed at more than one Exchange, Nexo will strive to execute the Exchange Transaction at the best price available at these Exchanges. However, we do not guarantee the availability of any price.
- Your Orders shall be processed by Nexo immediately, while their status may be tracked in the Nexo Account. However, due to technical reasons, the processing may take a longer period of time, for which Nexo cannot be held liable. Nexo devotes significant efforts to ensure that any processing falling within the hypotheses under the preceding sentence will be processed no later than 72 (seventy-two) hours as of your Order.
- Once your Order has been executed, the Counter Assets have been topped up into your Nexo Account, respectively your Nexo Account balance has been updated, you will receive confirmation of the Exchange Transaction via e-mail.
- You will not be able to place an Order (i) using Base Assets not available in your Savings or Credit Wallet; (ii) above or under the permitted limits as indicated on the Nexo Platform and in your Nexo Account; (iii) when the Base Assets serve as Collateral of a current Nexo Crypto Credit and the LTV applicable thereto exceeds the LTV applicable to the Counter Assets intended to serve as Collateral of the same Nexo Crypto Credit instead of the Base Assets, as indicated on the Nexo Platform and in the Nexo Account.
- Your Order may be rejected (i) due to network shortages and/or technical reasons; (ii) in case of significant price difference; or (iii) in case there are not enough Counter Assets on the Exchanges.
- We may, at our sole and absolute discretion, reverse or adjust any executed Exchange Transaction, respectively any cashback, bonus or other type of reward related to such Exchange Transaction, if applicable, in case of an error in the Exchange Price of the Digital Assets, which deviates from the prevailing market price and which has occurred as a result of a system or technical error detected by Nexo, regardless of the reason for such. In case of reversal, the Counter Assets subject of the Exchange Transaction and/or any cashback, bonus or other type of reward related thereto, if applicable, will be withdrawn from the Savings or Credit Wallet of your Nexo Account, and the Base Assets - re-topped up thereinto. In case of adjustment, the amount of the Counter Assets subject of the Exchange Transaction and/or any cashback, bonus or other type of reward related thereto, if applicable, will be adjusted accordingly in the Savings or Credit Wallet of your Nexo Account.
- If an Exchange Transaction is initiated and executed as part of the Nexo Booster, Section XIII of the Nexo Wallet Services General Terms and Conditions shall apply accordingly, while in case of any discrepancy between these General Terms and Section XIII of the Nexo Wallet Services General Terms and Conditions, the latter shall prevail.
VI. OBLIGATIONS AND WARRANTIES
- You hereby declare, warrant and confirm that:
- You meet the conditions under Art. III.1.;
- You validly undertake any action or enter into any transaction with regard to the Agreement;
- The Base Assets, which you have topped up or will top up into the Savings Wallet of your Nexo Account, respectively have moved or will move to the Credit Wallet of your Nexo Account, or the funds, which you have used or will use for purchase of such, as the case may be, are not derived from money laundering, terrorist financing, fraud or any other illegal or criminal activity under any Applicable Law in the respective jurisdiction;
- You have submitted to Nexo only complete, correct and up-to-date information and documents;
- You are aware that you are subject to the tax regulation in your jurisdiction and shall be fully responsible for any filing/reporting and paying any tax due to the competent tax authority, as required by the Applicable Law. Nexo shall not be required to compensate you for your tax obligations or advise you in relation to your tax issues. The uncertainty in tax legislation relating to the Digital Assets may expose you to any currently unknown or future tax consequences, associated with your holding of Digital Assets and the use of the Nexo Exchange Service, for which Nexo shall not be held liable. You shall hold Nexo harmless from any expenses and losses, resulting from the above uncertainty;
- You are aware that you use the Nexo Account, the Nexo Platform and the Nexo Exchange Service fully at your own risk.
- You hereby undertake to:
- Use the Nexo Account, the Nexo Platform, the Nexo Exchange Service and the other Nexo Wallet Services in good faith;
- Not commit, conduct or perform any misrepresentation, fraud, malicious act or criminal activities;
- Not provide false, inaccurate, incomplete, out-of-date or misleading information;
- Not interfere, intercept, or expropriate our network, system, data, or information;
- Not transmit or upload any virus or other malicious software or program, or try to gain unauthorized access to other users’ accounts, website, network or systems relating to the Nexo Exchange Service and/or other Nexo Wallet Services;
- Not decompile, reverse engineer or disassemble any of our programs, systems or products, or in any way infringe the Intellectual Property rights and/or such of our partners;
- Not cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of any of our programs, systems or products, or unduly burdening or hindering the operation and/or functionality of any aspect of the Nexo Exchange Service and/or other Nexo Wallet Services;
- Keep the data required for using the Nexo Account unavailable for third parties;
- Inform Nexo about any change in the information and documents submitted to Nexo, in particular in your contact details, within 1 (one) day as of the change.
- Comply with other terms under Art. X.2 of the Nexo Wallet Services General Terms and Conditions, as applicable.
VII. RISK DISCLOSURE
- Digital Assets are more volatile relative to most fiat currencies and other assets and this unpredictability of their price may result in significant loss over a short period of time. We are not responsible for the Digital Assets market, and we make no representations or warranties concerning the real or perceived value of any Digital Assets, and the quality, suitability, truth, usefulness, accuracy, or completeness of any data provided by Nexo. You shall therefore carefully consider whether holding Digital Assets is suitable for you in light of your financial condition.
- Digital Assets are not money or legal tender, are not backed by the government or by a central bank and mostly do not have any underlying assets, revenue stream, or another source of value.
- The regulatory status of Digital Assets is currently unsettled, varies among jurisdictions and is subject to significant uncertainty. Legislative and regulatory changes or actions relating to the Digital Assets or blockchain technology at a state or international level may adversely affect or restrict, as applicable, the use, transfer, exchange and value of the Digital Assets, as well as the provision of the Nexo Exchange Service, the other Nexo Wallet Services or any of them. The value of the Digital Assets may be derived from the continued willingness of market participants to exchange fiat currencies for Digital Assets, which may result in permanent and total loss of value of a particular Digital Asset should the market for it disappear.
- Also, some Digital Assets transactions are deemed to be made when recorded on a public ledger, which is not always the date or time that you initiated the transaction. Digital Assets ownership is often determined by a decentralized public ledger and usually cannot be cancelled or reversed.
- The nature of the Digital Assets may lead to an increased risk of fraud or cyberattacks and any losses due to fraudulent or accidental transactions will likely not be recoverable.
- Keep in mind that we do not provide investment advice and the information coming from Nexo shall not be used as a basis for making decisions about investing in a particular Digital Asset.
- YOU ARE RESPONSIBLE FOR DETERMINING WHETHER THE USE OF THE NEXO EXCHANGE SERVICE IS LEGAL IN YOUR JURISDICTION AND YOU SHALL NOT USE IT SHOULD SUCH USE BE ILLEGAL IN YOUR JURISDICTION. IF YOU ARE UNCERTAIN, PLEASE SEEK INDEPENDENT LEGAL ADVICE.
- You understand and agree that you use the Nexo Account, the Nexo Exchange Service and the other Nexo Wallet Services at your own risk. This section is not exhaustive and does not disclose all the risks associated with the Digital Assets and the use of the Nexo Exchange Service and any of the other Nexo Wallet Services. You shall, therefore, carefully consider whether such use is suitable for you in light of your circumstances and financial resources.
VIII. LIMITATION OF LIABILITY
- THE NEXO EXCHANGE SERVICE IS PROVIDED ‘AS IS’ AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, EXCEPT AS EXPRESSLY PROVIDED IN THESE GENERAL TERMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW. NEXO DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU, YOUR AFFILIATES OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE OF ANY SERVICE OR ANY GOODS PROVIDED INCIDENTAL TO THE NEXO EXCHANGE SERVICE UNDER THESE GENERAL TERMS.
NEXO LIABILITY IN RESPECT OF THE REPRESENTATIONS AND WARRANTIES, WHICH CANNOT BE EXCLUDED, IS LIMITED TO ANY OF THE FOLLOWING OPTIONS CHOSEN BY NEXO, AT OUR SOLE AND ABSOLUTE DISCRETION:
- RE-SUPPLYING, REPLACING OR REPAIRING THE NEXO EXCHANGE SERVICE IN RESPECT OF WHICH THE BREACH OCCURRED; OR
- PAYING THE COST OF THE RE-SUPPLYING, REPLACEMENT OR REPAIRING OF THE NEXO EXCHANGE SERVICE IN RESPECT OF WHICH THE BREACH OCCURRED.
- NOTWITHSTANDING ANY PROVISIONS IN THESE GENERAL TERMS, IN NO EVENT SHALL WE OR ANY OF OUR REPRESENTATIVES OR PARTNERS BE LIABLE TO YOU FOR ANY LOSSES, DAMAGES OR CLAIMS:
- DUE TO AN UNUSUAL OR UNFORESEEABLE EVENT OUTSIDE OUR REASONABLE CONTROL, THE CONSEQUENCES OF WHICH COULD NOT HAVE BEEN AVOIDED EVEN IF ALL DUE CARE HAD BEEN EXERCISED (E.G. FORCE MAJEURE, INCLUDING ACTS OF GOD, WAR OR CIVIL UNREST, DISASTERS, ACTS OF DOMESTIC OR FOREIGN COURTS AND GOVERNMENTAL AUTHORITIES, STRIKES, LOCKOUTS, LABOUR DISPUTES, TERRORIST ACTS, RIOTS);
- ARISING FROM OR IN CONNECTION WITH:
- ANY DELAY, SUSPENSION, DISCONTINUATION, INTERRUPTION OF THE NEXO PLATFORM OR THE NEXO EXCHANGE SERVICE;
- FAILURE OR INTERRUPTION IN PUBLIC OR PRIVATE TELECOMMUNICATION NETWORKS, COMMUNICATION CHANNELS OR INFORMATION SYSTEMS;
- ACTS OR OMISSIONS OF ACTS OF A PARTY FOR WHOM WE ARE NOT RESPONSIBLE;
- DELAY, FAILURE OR INTERRUPTION IN, OR UNAVAILABILITY OF, THIRD-PARTY SERVICES;
- ANY REFUSAL TO PROCESS OR AUTHORIZE, OR ANY REVERSAL OF, ANY EXCHANGE OR OTHER TRANSACTION FOR ANY REASON;
- YOUR INABILITY TO EFFECT OR COMPLETE ANY EXCHANGE OR OTHER TRANSACTION DUE TO SYSTEM MAINTENANCE, BREAKDOWN OR NON-AVAILABILITY OF THE NEXO PLATFORM OR THE NEXO EXCHANGE SERVICE;
- ANY UNAUTHORIZED OR INELIGIBLE USE OF THE NEXO EXCHANGE SERVICE CONTRARY TO THESE GENERAL TERMS;
- REVERSAL OR ADJUSTMENT OF ANY EXCHANGE TRANSACTION IN ACCORDANCE WITH ART. V.8.
- DUE TO COMPLIANCE WITH ANY APPLICABLE LAW, COURT ORDERS OR ACTS OF ANY GOVERNMENTAL AUTHORITY;
- RESULTING FROM HACKING, TAMPERING, COMPUTER VIRUS TRANSMISSION OR OTHER UNAUTHORIZED ACCESS OR USE OF THE NEXO EXCHANGE SERVICE, YOUR NEXO ACCOUNT OR ANY INFORMATION CONTAINED THEREIN.
- NOTWITHSTANDING ANY PROVISIONS IN THESE GENERAL TERMS, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, REGARDLESS OF WHETHER SUCH DAMAGES BEING DIRECT OR INDIRECT, FORESEEABLE OR UNFORESEEABLE, OR EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
- IN NO EVENT WILL OUR AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING IN CONNECTION WITH THE NEXO EXCHANGE SERVICE AND THESE GENERAL TERMS EXCEED THE FEES YOU PAID TO NEXO FOR YOUR USE OF THE NEXO EXCHANGE SERVICE DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, GIVING RISE TO THE CLAIM FOR LIABILITY, IF ANY. THE ABOVE SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY THE RELEVANT APPLICABLE LAW.
- WE SHALL NOT BE LIABLE FOR ANY FAULT ON THE PART OF ANY THIRD-PARTY SERVICE PROVIDER INSTRUCTED BY US. IN ANY SUCH CASES OUR LIABILITY WILL BE LIMITED TO USING REASONABLE CARE IN THE SELECTION, APPOINTMENT AND INSTRUCTION OF SUCH THIRD-PARTY SERVICE PROVIDERS (BUT NOT OF ANY SUB-CONTRACTOR OR OTHER THIRD PARTY SUCH A THIRD-PARTY SERVICE PROVIDER MAY USE).
- NOTHING IN THESE GENERAL TERMS SHALL OPERATE TO LIMIT OR EXCLUDE ANY LIABILITY FOR FRAUD OR GROSS NEGLIGENCE.
IX. DEFAULT. INDEMNIFICATION
- The occurrence of one of the following events constitutes an Event of Default:
a) The Client breaches any of the Client’s obligations or warranties under these General Terms;
b) It is or becomes illegal for the Client to perform the Client’s obligations under this Agreement;
c) Nexo is unable to contact the Client in accordance with the Client’s most recent instructions for sending correspondence.
- In case of an Event of Default, Nexo is entitled:
a) To terminate this Agreement with immediate effect;
b) To take any action it deems necessary to protect its interests.
- You shall defend, indemnify, and hold harmless Nexo, its affiliates, third-party service providers, each of their respective employees, officers, directors and representatives from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), arising out of or relating to any third-party claim concerning these General Terms or your use of the Nexo Exchange Service in violation to these General Terms or any Applicable Law.
- This Agreement shall be terminated immediately by closing of your Nexo Account, on the grounds of Art. IX.2, Letter a) or otherwise, and discontinuing use of the Nexo Exchange Service. The Agreement can be terminated upon written notice by Nexo if Nexo discontinues the offering of the Nexo Exchange Service, regardless of the reasons.
- In the event that your suspended or closed Nexo Account has an outstanding balance, you are entitled to recover the relevant Digital Assets, together with the Interest accrued thereon, respectively the fiat equivalence of the latter, unless we are prohibited by any Applicable Law or a court order to release them, including but not limited to the case that we have reasonable grounds to suspect that the Digital Assets or the funds used for purchase of the Digital Assets were obtained through fraud or any unlawful means or connected with any criminal activities.
- The termination of this Agreement shall not prevent any Party from seeking any remedies against the other Party for any breach of this Agreement occurring prior to such termination.
- Any notice required or made under these General Terms from Nexo to the Client shall be considered validly received when addressed to the Client’s last used e-mail address, mailing address or phone number. Additionally, we may provide notices through posting on the Nexo Platform.
- Any notice required or made under these General Terms by the Client to Nexo shall only be made through an e-mail in English, sent to firstname.lastname@example.org.
XII. GOVERNING LAW AND JURISDICTION
- The Agreement shall be governed exclusively by the substantive law of England and Wales.
- Any dispute arising out of or in connection with the Agreement, including with these General Terms, unless amicably settled between the Parties, shall be referred to the competent court in London, England, determined as per the procedural law of England and Wales. You agree that any dispute resolution proceeding subject to the Applicable Law under the preceding sentence shall be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated or representative action or proceeding. No court or other dispute resolution authority can consolidate or join more than one claim and can otherwise preside over any form of a consolidated, representative, or class proceeding. Any relief awarded cannot affect other Clients of Nexo.
- The Intellectual Property remains an exclusive property of Nexo and cannot be reproduced, displayed, distributed, republished, broadcasted, transmitted, modified or used in any other manner or by any means by the Client, except upon our prior explicit written consent.
- Nexo shall reserve its right to amend or supplement these General Terms from time to time. Any such amendments or supplements shall become valid and in full force as of the date of their publishing on the Nexo Platform unless otherwise indicated. You shall regularly check the Nexo Platform to inform yourself about any such amendments or supplements. By continuing to use the Nexo Exchange Service, after any such amendments or supplements have taken effect, you thereby indicate your acceptance of the amended or supplemented General Terms. If you do not wish to be bound by any amendments or supplements to these General Terms, you shall discontinue your use of the Nexo Exchange Service immediately.
- The descriptive headings in these General Terms are inserted for convenience only and shall not affect the interpretation of this Agreement.
- The invalidity of the whole or part of any provision of these General Terms shall not affect the validity of the whole or part of any other provision of these General Terms. The remaining provisions of these General Terms shall remain in full force and effect.
- The failure by Nexo to exercise or enforce any right or provision of these General Terms shall not constitute a present or future waiver of such right or provision.
- Providing you with the Nexo Exchange Service does not make Nexo your trustee or investment adviser and no fiduciary relationship exists between us. We have no trust or other obligations in respect of your Nexo Account other than those expressly specified hereunder.
- None of your rights and obligations arising out of the Agreement are assignable or transferable, without the prior written consent of Nexo. Nexo shall reserve the right to assign, delegate or transfer this Agreement and the rights and obligations hereunder to any third party at any time, without notice or your consent.
- Except for the legal entities belonging to the Nexo group of companies, a person who is not a party to this Agreement, shall not be entitled to enforce it.
- Any issues which are not settled hereby shall be governed by the Nexo Wallet Services General Terms and Conditions. In case of any discrepancies between the present General Terms and the Nexo Wallet Services General Terms and Conditions, these General Terms shall prevail, except for the cases under Art. V.9. where the Nexo Wallet Services General Terms and Conditions shall prevail.
- This Agreement is prepared and concluded in English language. In case it or any part thereof is translated into another language for whatever reason, the English version shall prevail.