Last modified: 16 December 2020
Disclaimer: Buying and selling of Virtual Currencies carries with it a high degree of risk. Do not trade with money that you cannot afford to lose. Please do your own research or consult professional advice before making a trading decision.
Risk Statement: The purchase / sale of Virtual Currencies or placing Virtual Currencies into yield generation platforms has potential rewards and risks involved. Trading is not suitable for everyone. Anyone wishing to buy or sell Virtual Currencies should seek their own independent professional financial advice.
THIS IS AN IMPORTANT DOCUMENT.
PLEASE READ IT CAREFULLY.
ACCESSING, PURCHASING OR USING THE APP MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS AND USERS ACTIVITIES MAY BE SUBJECT TO LEGAL INVESTMENT LAWS AND REGULATIONS OR REVIEW OR REGULATION BY CERTAIN AUTHORITIES.
IN PARTICULAR, THE YIELD WALLET AND THE YIELD PROGRAMS ARE NOT AVAILABLE TO SWISS USERS THAT DID NOT ENTER INTO AN EXECUTION-ONLY MANDATE AGREEMENT WITH SWISSBORG INVEST SA. THE FACT OF TRANSFERRING OUT THEIR VIRTUAL CURRENCIES INTO THE YIELD WALLET AND/OR THE YIELD PROGRAMS IS THEIR SOLE RESPONSIBILITY AND SHALL BE DONE ONLY UPON THEIR INSTRUCTION, AFTER HAVING BEEN CAREFULLY ADVISED OF THE RISKS OF SUCH TRANSFER.
IN PARTICULAR, THE APP IS NOT A REGISTERED EXCHANGE UNDER SECTION 6 OF THE UNITED STATES SECURITIES EXCHANGE ACT OF 1934 OR AN ALTERNATIVE TRADING SYSTEM APPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE "SEC") FOR THE PURPOSES OF SEC REGULATION ATS ON REQUIREMENTS FOR ALTERNATIVE TRADING SYSTEMS ("REGULATION ATS") AND IS NOT EXEMPT FROM THE REQUIREMENTS OF REGULATION ATS. IN ADDITION, THE APP HAS NOT BEEN OR WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. CONSEQUENTLY, THE APP MAY NOT BE ACCESSED OR USED BY OR OTHERWISE OFFERED, SOLD, DELIVERED OR TRANSFERRED WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF ANY U.S. PERSONS AS SUCH TERMS ARE DEFINED IN REGULATIONS UNDER THE SECURITIES ACT OR TO ANY U.S. CITIZENS (AS DEFINED IN 8 U.S.C. SUBCHAPTER III) OR ANY U.S. PERSONS (AS DEFINED IN 17 C.F.R S230.902(K). PRIOR TO ACCESSING, PURCHASING OR USING THE APP, YOU MUST INFORM YOURSELF OF AND OBSERVE ANY RESTRICTIONS APPLICABLE TO YOU. A FAILURE TO COMPLY WITH APPLICABLE RESTRICTIONS MAY CONSTITUTE A VIOLATION BY YOU OF THE LAWS AND REGULATIONS IN YOUR JURISDICTION.
These terms (the “Terms”) shall govern your use of the App and of the Services (as defined in Section 5 and Annex 1 hereunder) that the Company offers on or through the App.
These Terms are entered into by you and SwissBorg Solutions OÜ, a company duly incorporated under the laws of Estonia, bearing company registration number 14769371, with registered address at Harju maakond, Tallinn, Kesklinna linnaosa, Roosikrantsi tn 2-1091, 10119 (“SwissBorg”, “Company”, “We” and/or “we”, “Us” and/or “us” and “Our” and/or “our” when indicating possession).
The Company currently operates under the virtual currency service license number FVT000326.
For the purposes of these Terms, the capitalized terms available are defined in Annex 1 of the Terms. References to Swiss Users are applicable to Swiss Users only. References to User(s) shall apply to Swiss Users as well as Users from other countries.
2.1. Any person who wants to access the App and/or benefit from the Services available on or through the App must accept these Terms. If you are a Swiss User and you wish to benefit from the Services, you must accept the Execution-Only Mandate Agreement for Swiss Users.
Any legal person, including but not limited to any enterprise, corporation, foundation, association or other legal entity is not eligible to use the App under these Terms. A natural person cannot use the App on behalf of an enterprise, foundation, association, corporation or any other legal entity.
2.3. In the event that you are a Swiss User, you warrant and accept that you have understood any disclaimers and the clauses relating to the limitation of liability made in the Execution-only Mandate Agreement applicable to you. If you do not agree with the Execution-Only Mandate Agreement applicable to you, you should refrain from benefiting from the Services offered on the App.
2.4. You confirm that you are able to read in English and that your level of English is sufficient to understand the meaning of the terms contained in the English version of the Terms and the Execution-Only Mandate Agreement as well as all the commitments, warranties, waivers and obligations contained in the English version of these Terms and the Execution-Only Mandate Agreement applicable to you. You hereby consent that you will not hold the Company liable for any losses or damages which result from the lack of understanding of these Terms.
2.6. If you are under the age of eighteen (18) or the legal age for entering legally binding contracts under applicable laws, you are not permitted to use the App. By continuing to access or use the App, you indicate that you are eighteen (18) years of age or older or have the legal capacity to enter legally binding contracts under applicable laws. Misrepresentation of your age to gain access to any of the Services on the App is a breach of these Terms.
2.7. By your use of any of the Services available on the App, you represent and warrant that such use is legal in your local jurisdiction, and you agree that you will not use the App if such use is prohibited or otherwise violates the laws of the country, state, province, or other jurisdiction in which you reside or of which you are a citizen.
3. THE APP
The App, containing the Execution Interface, is made available to Users by the Company on the basis of these Terms. By making use of the Services, you shall abide by these Terms applicable between the Company and you.
For Swiss Users, these Terms shall be read and interpreted in conjunction with the Execution-Only Mandate Agreement.
3.2. For all intents and purposes, the Execution Interface will allow you to directly access the market of Virtual Currencies, to place your Orders on an “Execution-Only” basis and to mandate the Company to use your Fiat Assets and/or Virtual Currencies to carry out solely the Orders instructed by you. You may also instruct the Execution Interface to carry out the Token Swap on your behalf.
3.3. By signing up to the App, you understand that the Company allows Users access to Yield Programs through a Yield Wallet interfaced with the App which is operated by Yield Program Gateway(s). The Company acts solely as a technology provider in this respect and does in no event offer the Yield Programs and, therefore, shall not be liable for any aspect of the Yield Program Gateway(s), the Yield Wallet and/or the Yield Programs.
3.4. The App is not an exchange (centralized or decentralized), nor an organized or multilateral trading facility or a trading venue and the Company is not acting as a broker/dealer or as a financial advisor to the Users. For the avoidance of doubt, the Company, through the App and the Execution Interface solely Executes your Orders on Exchanges. The Company does not provide investment, tax, or legal advice, nor does it act as a broker or dealer on behalf of its Users.
3.5. By making available the App and the Execution Interface, the Company only intervenes as (i) a technological provider; and (ii) as a financial service provider which carries out the Execution of Orders on behalf of User(s) allowing the User to make use of the Execution Interface in order to have the best Transaction Price possible for a Transaction, on a best effort basis.
You understand that any documentation and publication made available on the App, as well as any notifications made on or through the App or on or through the Website with regards to the Services provided by the Company are also binding with regards to your activity on the App.
3.6. When We Execute a Transaction based on your Orders, we are not in a position to assess, whether the Transactions you make are compatible with your necessities and therefore, you are responsible for your use of the Fiat Assets and Virtual Currencies as well as for your use of the Yield Wallet or for your use of the Token Swap including whether or not it meets your needs or objectives.
3.7. All Transactions are Executed automatically subsequent to the User setting the parameter of the Orders and in accordance with execution procedures which are operated by the Company. By clicking “Confirm Exchange”, you are instructing the Company to use the Fiat Assets and/or the Virtual Currencies within your Wallet in order to carry out the Execution of Orders.
3.8. The User is solely responsible for determining whether any Transaction or the Order(s) placed through the Execution Interface, as well as the investment or the investment strategy is/are appropriate, suitable, adapted to his/her financial situation, personal objectives, financial circumstances and risk tolerance. The User should consult a legal, financial or tax professional regarding his/her specific situation before placing any Order through the Execution Interface within the App.
3.9. The App grants you access to Yield Wallet(s) operated by the Yield Program Gateway(s) allowing you to collect yields from Yield Programs. With respect to the use of the Yield Wallet service, Swiss Users must accept the Execution-Only Mandate Agreement and the Yield Program Gateway(s). The User acknowledges and agrees that the Company is not offering to Users Yield Wallets nor any Yield Programs on its own behalf, but solely acts as technology provider and gateway to allow Users to collect yields from Yield Programs provided by third party service providers.
3.10. In the event that you have a Yield Wallet and you are not a Swiss User, any instructions in relation to the use of the Yield Wallet is transmitted by the Company to the Yield Program Gateway(s) directly through the App by virtue of its position as a technology provider.
4. THE COMPANY'S ROLE
4.1. Through the Services provided, the Company acts as an operator of the Execution Interface and Executes the Orders which are placed by the Users. The Company allows the possibility for the Users to place Orders through the Execution Interface. By being interfaced with Exchanges and/or Yield Program Gateway(s), We simply Execute Orders which are given to Us by You.
With regards to Swiss Users, SwissBorg Invest SA receives the Orders which are then transmitted to the Company by virtue of the Execution-Only Mandate Agreement who will proceed to Execute the Orders which are transmitted to it.
4.2. The Execution Interface is programmed to calculate the best possible Transaction Price for each Order. The Execution Interface does not choose to Execute an Order on a particular Exchange for any other reason. Should you become aware of any malware which redirects or favours the Execution of an Order on any of the Exchanges connected to the Execution Interface, You shall immediately contact our support services. The Execution Interface does not constitute and should not be regarded as a recommendation or endorsement of the quality, service level, qualification or rating of the Exchanges to which it is attached.
4.3. As an operator of the Execution Interface, the Company does not act as an agent for any of the Exchanges and/or Users. By providing the Services, you acknowledge that the Company’s role is solely to facilitate the access of Users to the Exchanges and/or Yield Program Gateway(s) and to provide the Services related thereto.
4.4. The Company, through the operation of the App, acts solely as a technology provider allowing Users to use a Yield Wallet to collect yield generated by third party Yield Programs offered by Yield Program Gateway(s).
5. THE SERVICES
5.1. Through the App, the Company allows you to place Virtual Currencies with a Virtual Currency Custodian and/or Fiat Assets with a Fiat Custodian. The Fiat Assets shall appear on your Fiat Wallet and the Virtual Currencies shall appear on your Virtual Currencies Wallet within your User Account. No fiat currency can be deposited by Swiss Users on bank accounts of the Company without first entering into an Execution-Only Mandate Agreement with SwissBorg Invest SA.
5.2. You can give Orders through the Execution Interface within the App for the Company to Execute any of the Transactions on Exchanges and/or to place any Virtual Currency into the Yield Wallet on your behalf. When Executing Orders, the Execution Interface will identify the most competitive Market Price available on the Exchanges. By accepting these Terms, you are giving your consent to the Company to carry out the best execution possible between the Exchanges to which the Execution Interface is connected on your behalf.
5.3. For Swiss Users, placing Orders through the Execution Interface within the App is subject to the conclusion of an Execution-Only Mandate Agreement with SwissBorg Invest SA as well as transferring out Virtual Currencies into the Yield Wallet(s) interfaced with the App but controlled by third party Yield Program Gateway(s) on your behalf is subject to the conclusion of an Execution-Only Mandate Agreement with SwissBorg Invest SA.
5.4. By clicking “Confirm Exchange”, you are giving an Order to the Company to use any of the Virtual Currencies and/or Fiat Assets placed at a Virtual Currency Custodian and/or the Fiat Custodian in order to carry out the Transaction on your behalf by virtue of these Terms and, as far as Swiss Users are concerned, on the basis of the Execution-Only Mandate Agreement. With regards to Swiss Users, the mandate is given to SwissBorg Invest SA to transmit the Order to the Company who shall Execute the Order by virtue of the Execution-Only Mandate Agreement.
5.5. The Execution Interface will allow the Company to Execute the Order from the Exchange that offered the most competitive Market Price on behalf of the User. The result of the Order will subsequently appear on the User’s Account and in your Wallet(s). The Company shall not be responsible for any misrepresentation of Market Prices which is made by the Exchanges.
5.6. Fiat Wallet. Fiat Assets shall be sent to a Fiat Custodian and shall appear in your Fiat Wallet on your User Account and shall be exclusively used for (a) the Execution of the Orders which you place through the App (b) the Withdrawal of your Fiat Assets to your approved Bank Account.
5.6.1 We hereby declare that, based on the representations made by the Fiat Custodian, your Fiat Assets will be segregated from the rest of the Fiat Custodian’s assets and fully secured by the Fiat Custodian as well as segregated from the Company’s owns assets. The Company will at all times be able to attribute Users’ Fiat Assets through its records within the ledger.
5.6.2. You hereby acknowledge and consent that you shall send the Fiat Assets directly to the Fiat Custodian who shall place them in a segregated account held in the Company’s name, thereby allowing the Company to Execute your Orders. You also acknowledge and consent that your Fiat Assets may be redirected and sent directly into a SwissBorg Exchange account where such Fiat Assets shall also be exchanged on your behalf for the purpose of Executing your Orders. You hereby authorize the Company to exchange your Fiat Assets exclusively on the basis of your Orders (Execution-only mandate).
5.6.3. You are informed that through the operation of the App, the Company does not engage in any banking activity nor acts itself as a custodian. Your User Account with the Company is not a bank account, a deposit account or a trust or custody account. You hereby confirm and understand that the Fiat Custodian does not charge you any fees or interest for the Fiat Assets nor does it pay any interest to you on the basis of those Fiat Assets.
5.6.4. You understand that there are countries, where Fiat Assets are not supported within the App unless you are subject to additional agreements such as the Execution-Only Mandate Agreement for Swiss Users. In the event that you are a User residing in one of the countries where Fiat Assets are not supported, you shall not be allowed to place any Fiat Assets into the Fiat Wallet until the Company shall make available a supported version for Fiat Assets in your country. You warrant and accept that you cannot carry out the Withdrawal of Fiat Assets from your User Account for as long as Fiat Assets are not supported in the App in the country where you are located. The Company shall notify you upon making available a version of the App within your country which supports Fiat Assets. The Company will also notify you of the availability of Fiat Wallets on https://swissborg.com/supported-countries.
5.6.5. In the event that you are a Swiss User, Fiat Assets shall be held by the Fiat Custodian and you shall give a mandate to SwissBorg Invest SA to access and manage them on the basis of the Execution-Only Mandate Agreement.
5.7. Virtual Currencies Wallet. If you are a User located in a country as indicated in Annex 2, but where the App does not support Fiat Assets, you will be able to use the App only by placing Virtual Currencies in your Virtual Currencies Wallet. In the event that you are a User located in a country where only Virtual Currencies are supported, You will only have available a Virtual Currency Wallet and you will be able to place Virtual Currencies onto the User Account only using Virtual Currencies until further notice.
5.7.1. You accept that as long as Virtual Currencies are only available on your User Account, there is no possibility to use Fiat Assets. You accept that you can only Withdraw Virtual Currencies from your User Account for as long as Fiat Assets are not supported in the App in the country where you are located.
5.7.2. Your Virtual Currencies shall be transferred to a Virtual Currencies Custodian and shall appear on your User Account within your Virtual Currency Wallet which shall be exclusively used for (a) the Execution of the Orders which You place through the App or (b) the Withdrawal of your Virtual Currencies to an External Wallet.
5.7.3. The Company is licensed to carry out the provision of a Virtual Currencies service through Estonian License number FVT000326 to provide the Virtual Currency service.
5.7.4. You hereby acknowledge and accept that you shall send the Virtual Currencies directly to the Virtual Currencies Custodian who shall deposit them into a Virtual Currency Wallet controlled by the Company thereby allowing the Company to hold the Virtual Currencies on your behalf for the purpose of executing your Orders. You hereby give authorization to the Company to exchange your Virtual Currencies for the sole purpose of Executing your Orders.
5.7.5. You hereby confirm and understand that neither the Virtual Currencies Custodian nor the Company charge any fees or interest for holding your Virtual Currencies. Neither the Company nor the Virtual Currencies Custodian shall pay any interest to you.
5.7.6. We hereby declare that to the best of our knowledge and based on the representations made by the Virtual Currencies Custodian, your Virtual Currencies will be fully secured by the Virtual Currencies Custodian. You acknowledge and accept that Virtual Currencies are held on our ledger using distributed ledger technology and that the Company does not have any control over the functioning of this distributed ledger technology.
5.7.7. Whenever you place BTC by using the BTC address provided on the App, THE BTC ADDRESS WILL CHANGE FOR EACH NEW DEPOSIT. Therefore, whenever you want to place BTC into your Virtual Currency Wallet, you should be sure that the BTC is sent to the correct address. The Company shall not be held liable or responsible for any losses or damages which may occur in the event that you transfer BTC to the wrong BTC address.
5.7.8. Please note that you always need to send Virtual Currencies to an address which supports the technology of that particular Virtual Currency. If you proceed to send Virtual Currencies to an address that does not support that particular Virtual Currency, you take full responsibility for all the losses that might occur by doing so.
5.8. Yield Wallet. On the App, you will be able to transfer out Virtual Currencies into a Yield Wallet operated by third party Yield Program Gateway(s). The Company interfaces Yield Wallet(s) controlled and operated by third-party Yield Program Gateway(s) with the App. The possibility to place Virtual Currencies into a Yield Wallet is subject to acceptance of the terms of service of the Yield Program Gateway(s) and, for Swiss Users, in addition, the conclusion of an Execution-Only Mandate Agreement with SwissBorg Invest SA. The Users will be able to place Orders through the App for the purpose of transferring out their Virtual Currencies to Yield Wallet(s) interfaced with the App.
Please note that the Yield Wallet is an external wallet, operated and maintained by a third-party company. The Company solely acts as a technology provider to interface the Yield Wallet with the App. The Yield Wallet feature is simply a gateway allowing the Users to access to various Yield Programs which are operated by third party companies, at their sole risk and liability.
6. FUNDS ON ACCOUNT
6.1. Whenever a User’s Fiat Assets and/or Virtual Currencies are redirected towards a SwissBorg Exchange Account, the User understands that this shall be done in order to ensure that the Execution Interface is more efficient in the Execution of the Orders on behalf of Users. The User understands that there is a risk that these Fiat Assets or Virtual Currencies may be lost due to a Security Breach or any other form of breach within the Exchange. The User accepts and warrants that he/she will assume the risks associated to the redirection of the Fiat Assets and/or Virtual Currencies towards accounts on Exchanges which shall be solely used for concluding the Transaction before delivering the Virtual Currencies and accepts not to hold the Company liable for any losses or damages which may arise from a Security Breach or other form of breach within the Exchange.
6.2. Before transferring Fiat Assets, which will appear on your User Account, you will be required to designate one or more external Bank Account(s) (hereinafter referred to as the “Designated Payment Method”).
6.3. Bank Accounts can only be used by the person under whose name they are registered. The Company or the Fiat Custodian reserves the right to suspend, freeze or cancel your User Account if the name of the User Account and the name of the corresponding Bank Account do not correspond to each other.
6.4. The Bank Account used to transfer Fiat Assets needs to be solely in your name and needs to be with a regulated and licensed financial institution or e-money institution. All payment solutions for Fiat Assets must be carried out through the use of a regulated and licensed entity.
6.5. By transferring Fiat Assets, You represent and warrant Us that:
a) You are authorised to use the Designated Payment Method;
b) You authorise Us to charge You the Designated Payment Method, and any extra charges, should they arise and be supported by Us;
c) You give Us the mandate to store your Fiat Assets in our account which is opened at the Fiat Asset Custodian.
6.6. The Company retains the right, in its sole discretion, to determine whether to support any Fiat Asset at any time and for no reason. In some cases, the Fiat Custodian may decline the transfer of Fiat Assets. You agree that you will not hold the Company liable for any damages resulting from such rejected transfers.
6.7. If the Company ceases to support a particular Fiat Asset, the Company will use commercially reasonable efforts to give you prior notification so as to allow you with an opportunity to Withdraw the affected Fiat Asset from your Fiat Wallet to a Bank Account.
6.8. If you do not Withdraw the affected Fiat Asset from your Fiat Wallet prior to cessation of support for the Fiat Asset by the Company, the Fiat Asset may be lost due to your inability to access, transfer or otherwise control it. The Company will not be liable to you for any loss, liability or expenses related to its decision to cease any support for any Fiat Asset.
6.9. If you are located in a country where Fiat Assets are not available, you cannot assign a Designated Payment Method to your User Account until the Fiat Assets are made available in the country where you are located. This Section 6 shall not be applicable in the event that you are located in a country where no Fiat Assets are available on the App and this Section 6 only becomes applicable from the date when the User is notified by the Company that Fiat Assets have become available on the App in the country in which the User is located.
6.10. The User’s Virtual Currencies are stored on a Virtual Currency Wallet which is based on distributed ledger technology. The User’s Virtual Currencies are sent from an External Wallet to a Virtual Currency Wallet registered by a Virtual Currency Custodian under the name of the Company, attributable at any time to the Users.
6.11. If the Virtual Currencies are not supported or available on the App, you will not be permitted to transfer these Virtual Currencies to your Virtual Currency Wallet. If you, however, proceed to send Virtual Currencies to a Virtual Currency Wallet that does not support that particular Virtual Currency then You take all responsibility for all the losses that might occur by doing so.
6.12. By transferring Virtual Currencies, You represent and warrant Us that:
a) You are authorised to use the Designated Payment Method;
b) You authorise Us to charge You the Designated Payment Method, and any extra charges, should they arise and be supported by Us; and
c) You give us the mandate to store your Virtual Currencies in our account which is opened at the Virtual Currencies Custodian.
6.13. The Company follows the recommendations presented by the FATF which are set out in the “Guidance for a Risk-based approach to Virtual Assets and Virtual Asset Providers” (hereinafter also referred to as the “FATF Guidance for VASPs”). The activities carried out on the App may fall under the FATF Guidance for VASPs which may require the Company to share information regarding your activities with the Exchanges, any other financial institution, the Virtual Currency Custodian, the Fiat Custodian as well as any other VASP which may require your information regarding the Transactions or any other activity which you may carry out on the App. Therefore, you warrant that you shall not hold the Company liable for any losses or damages which may arise from the transmission of any information in relation to the Transactions carried out on the App.
6.14. The Virtual Currency Custodian may store the User’s Virtual Currency by using a combination of hot and cold storage for the purposes of security reasons. You hereby agree and consent that the Virtual Currency Custodian can place your Virtual Currencies in a hot or cold storage solution. You acknowledge and understand that in the event of insolvency of the Virtual Currency Custodian, your Virtual Currencies may be transferred to another interoperable storage solution which shall allow for the storage of your Virtual Currency.
6.15. The Company retains the right, in its sole discretion, to determine whether to support or allow Transactions related to any Virtual Currency. The Company may discontinue or terminate any support for any Virtual Currency at any time for any or no reason. Unless otherwise required by law or by law enforcement, the Company will make reasonable efforts to notify you of its decision to cease the support of a Virtual Currency on the App.
6.16. If the Company ceases to support the transfer of a particular Virtual Currency, the Company will use commercially reasonable efforts to notify you prior so as to allow you with an opportunity to transfer the affected Virtual Currency from your User Account to an External Wallet or to Withdraw the Virtual Currency.
6.17. If You do not Withdraw your Virtual Currencies out of your User Account prior to cessation of support for the said Virtual Currency by the Company, the Virtual Currency may be lost due to your inability to access, transfer or otherwise control it. The Company will not be liable to you for any loss, liability or expenses related to its decision to cease any support for any Virtual Currency.
6.18. You hereby represent and warrant that you have sole control over any External Wallet to which you send Virtual Currencies from your User Account. The Company gives no assurance or warranty that any Virtual Currency supported by the App which is the subject of a fork (hard, soft or otherwise) will be available on the App for the User to place an Order through the Execution Interface.
7.1. You understand that the Company reserves the right to investigate the source of any assets available on the User Account (“Assets”) and determine, in the Company’s sole discretion, how to handle their disposition in accordance with the internal Company’s AML Policy, and any Applicable Laws.
7.2. If, following the review of any funds in question and the circumstances by which You receive them, the Company determines that You are not the owner of these Assets and/or that the Asset a stemming from criminal or illicit activities, You hereby accept and understand that the Company reserves the right to dispose of these Assets in accordance with the Applicable Laws and to report any findings to the Relevant Authority.
You give to the Company the right to use your Assets for the purpose of Executing the Orders you place through the App and/or transferring out your Virtual Currencies into your Yield Wallet. For Swiss Users, any other aspects of the mandate you give to the Company and/or to SwissBorg Invest SA are stipulated within the Execution-Only Mandate Agreement.
9.1. Possible Transactions. The User may give the following Orders through the Execution Interface using Virtual Currencies:
9.2. The Company is licensed to carry out the provision services of exchanging a virtual currency against a fiat currency through Estonian License number FVT000326. In the event that you are located in a country where Fiat Assets are not supported, you shall not be permitted to Execute any Orders which allow the conversion or purchase of Fiat Assets. This prohibition shall remain up until the Company shall notify the User that the use of Fiat Assets is available in the country where the User is located.
9.3. Execution Interface. The Execution Interface is operated under license by the Company and shall render the following services:
9.4. Placing Execution of Order. Upon transmitting an Order which is available through the Execution Interface, the Order will be Executed, and the Transaction will appear on your Fiat Wallet or on your Virtual Currency Wallet in your User Account. You may also give Order to the Company to transfer out your Virtual Currencies to the Yield Wallet(s) controlled and operated by third party Yield Program Gateway(s). In such instances, the Virtual Currencies transferred out to the Yield Wallet will appear in this wallet that you can consult on the App as it is interfaced with it.
9.4.1. By clicking “Confirm Exchange”, You are consenting to instruct and give Order to the Company to use the Fiat Assets and/or Virtual Currencies within your Wallet which are held at a Fiat Custodian and/or Virtual Currency Custodian on your behalf by the Company in order to carry out the Execution of Orders on behalf of the Users.
9.4.2. If you have an insufficient amount of Assets in your User Account to fulfil a Transaction it will be cancelled.
9.4.3. An Order summary shall appear in your User Account and it will indicate at least, but not limited to the following:
9.4.4. Additionally, you will be able to see the number of Transactions that were processed in order to Execute your Order.
9.4.5. Notwithstanding the foregoing, you agree that the failure to provide the Order summary or confirmation shall not prejudice or invalidate any Order or any Transaction completed based on such Order. The calculation of the Transaction Price shall occur as outlined in Section 9.5.
9.4.6. You acknowledge, understand and accept that the Company and/or SwissBorg Invest SA is not liable for the amounts and type of Orders which you place on through the App.
9.5. Transaction Price. The Execution Interface is programmed to calculate the optimal Transaction Price for the Execution of the Order. The lowest possible Transaction Price may be obtained either by a single settlement or a multitude of settlements. In any of the foregoing possibilities, the Transaction Price shall at all times be disclosed to the User. By accepting the Terms, You hereby agree to instruct and to authorize the Company to solicit the Market Prices available on the Exchanges connected to the Execution Interface in order to calculate a Transaction Price before allowing the User to instruct the Execution of the Order.
9.6. The calculation of the Transaction Price is based on the Market Price displayed on the Exchanges. All information on which the Transaction Price is based, including the Market Prices are provided by the Application Programming Interface (the “API”) of the Exchanges. The Company has no influence on this information and does not assume any responsibility for the accuracy or completeness thereof. The Company is not responsible for any false or misleading information presented on the Execution Interface which arises from the direct or indirect responsibility of the Exchanges. You hereby accept and warrant that you will not hold the Company liable for the foregoing false or misleading information.
9.7. Price Volatility. Particularly during periods of high volume, illiquidity, fast movement or volatility in the Exchange of the Assets, the Market Price at which an Order is Executed may be different from the prevailing Transaction Price indicated by the Execution Interface at the time of your Order.
9.8. If there’s an increase or a decrease in the Market Price of the Assets that are subject to the Order, which would have an effect on the Transaction Price, the Transaction will be Executed provided that the percentage margin of the increase or decrease of the Transaction Price shall not exceed the safety threshold defined by the Company of the price at the time when the Order was made by You. If the change in the Transaction Price is higher than the threshold margin defined by the Company, you shall be informed that the Transaction was not Executed on your screen.
9.9. At this point, we do not accept any returns or give Refunds for your purchase of Virtual Currencies, except as otherwise provided in these Terms. You will not hold the Company liable for any damages and losses which result from the change in Market Price.
9.10. You hereby acknowledge and accept that, under no circumstances, will the Company be obliged to Execute an Order if the Company suspects that such Transaction would violate any law, rule, regulation or the rules or regulations of any regulatory or self-regulatory organization or be above the threshold defined by the Company. In such an event, You shall not claim against the Company for any lost profits or any opportunities which are lost to Execute a Transaction.
10. SECURITY BREACH
10.1. The Company shall not be held liable for and shall not remain liable to you for the actions and/or omissions which may result in a Security Breach by a Third-Party Service Provider or the Exchanges interfaced with the Execution Interface. These actions or omissions shall include the treatment of any information or Personal data which belongs to you.
10.2. The User warrants that he/she shall not hold the Company liable for any actions and/or omissions which result in a breach of any warranties made by a Third Party Service Provider to the Company by virtue of any contractual agreement between them. The Company shall not be held liable for any losses or any damages suffered by the User for any Security Breach or any other form of operational or technical breach which falls under the responsibility of the Third Party Service Provider and/or an Exchange.
11.2. KYC/AML. In order to become a User, you need to pass Tier 1 of the KYC Process. In order to comply with KYC and Anti-Money Laundering (hereinafter referred to as “AML”) requirements, the Company may require additional information and Personal data in order to verify your identity and assess business risk depending on the Tiers.
11.2.1. The Company uses external Third-Party Service Provider(s) to conduct KYC and AML checks in order to fulfill its legal obligations and process Personal data. The User shall not hold the Company liable for any losses or damages which may arise for any data loss, misconduct or any other action or inaction which is carried out by the Thirty-Party Services Provider(s). The KYC Process is divided into three Tiers, based on the total amount of Fiat Asset(s) or Virtual Currency(-ies) transferred in the Fiat Wallet and/or Virtual Currency Wallet and/or other Personal data and information which the User provided to the Company.
11.2.2. The list of information, Personal data and/or documents which are requested by the Company in order to fulfill the KYC Process differs between Tier 1, Tier 2 and Tier 3 listed hereunder.
11.2.3. Each User must carry out the KYC Process at least once. The list of information, Personal data and/or documents which are requested by the Company in order to fulfill the KYC Process may be amended depending on any new regulatory requirements applicable to the Company. The Company, at its sole discretion, reserves the right to request to Users additional information, Personal data or documents.
11.2.4. Users will also undergo a Suitability Process in order to ensure that his/her profile is deemed suitable for the purposes of using the Services which are offered by the Company on or through the App. The Company shall also carry out a behavioral analysis of the Users interaction with the App in order to analyze whether there is the possibility of money laundering activity and the funding of terrorism on the App.
11.2.5. The Company may impose limitations on the Services offered to the User based on the Suitability Process which is undertaken by the User. The Company shall not be held liable for any losses or damages resulting from the limitation of the Services which are offered to the User. The use of the Services will be possible depending on which Tiers are completed within the KYC Process. You may not be able to make use of the App in the event that you do not fulfill any of the Tiers within the KYC Process.
11.2.6. On the basis of the Suitability Process, more information or documentation could be required depending on factors which determine the usage of the App, the amounts deposited or the amount of Orders made by the User on the Execution Interface.
11.2.7. Such factors include, but are not limited to:
11.2.8. The Company may also request additional information, Personal data and/or documentation when deemed necessary to clarify any doubts relating to your identity, the purpose of the Transactions or usage of your User Account and/or related to any other topic.
11.2.9. You accept that, depending on the amount placed into the Fiat Wallet and Virtual Currencies Wallet and/or the Orders placed through the Execution Interface, the Company and/or SwissBorg Invest SA may request further information, Personal data and documents and that by not providing these documents, Personal data or information, You hereby consent that the Company and/or SwissBorg Invest SA may take any action which it deems appropriate, including preventing You from using the App.
11.2.10. The Company reserves its right to reject your User Account registration and/or your Assets or to later close your User Account, if you do not provide Us with accurate, complete and satisfactory information, Personal data or documents.
11.2.11. You must provide the Company with all documents and information and Personal data promptly and accurately. You accept that delays from your side to provide documents and/or information may delay the approval of your User Account registration.
11.2.12. The Company shall unilaterally accept or reject potential Users in accordance with its own internal rules, KYC policies and SwissBorg’s AML Policy, the analysis carried out on the behavior of the user and on the analysis on the source of the funds relevant legislations, as well as international obligations resulting from Anti-Money Laundering and Countering of Terrorism Financing laws, regulations and guidelines. With regards to Swiss Users, the anti-money laundering and KYC policies applicable to SwissBorg Invest SA shall be taken into consideration when unilaterally accepting or rejecting potential Swiss Users.
11.2.13. The Company reserves the right to request further information on the Virtual Currencies which you place with the Virtual Currencies Custodian in order to carry out further investigation in line with the FATF Guidance for VASPs.
11.2.14. You shall not hold any entity of the Company or any Related Entity liable for any losses or damages which result in the rejection or closing of your User Account and/or breach of your obligations under anti-money laundering and countering of terrorism financing laws, regulations and guidelines.
11.3. Collected Data. The Company and/or SwissBorg Invest SA and/or the Third-Party Service Provider(s) will collect and/or process and/or handle the following Personal Data:
11.3.1. User data. In order to become a User who can benefit from the Services rendered on the App, the following Personal data shall be collected:
a. User ID (time at which it is created);
b. Your phone number;
c. Your e-mail address;
e. Your geographical location.
a) TIER 1
b) TIER 2
c) TIER 3
11.3.3. User Suitability Data. In order to become a User of the App, the User may need to answer questions and provide us with certain Personal data in order for us to understand which Services are best suitable for you. The following data shall be collected:
11.4. The App is intended solely for individual Users that use the Services on their own behalf and who comply with the criteria listed below. Therefore, you represent and warrant that:
Should you not fulfill the conditions for creating a User Account and/or benefiting from the Services, You shall immediately refrain from doing so. In any event, the Company reserves the right to refuse Services to any User at any time.
11.5. If you create a User Account, you are solely responsible for maintaining the confidentiality of your passcode and are responsible for all activities that occur in relation to your User Account, including your Wallet(s). The Company will not be liable for any loss or damage from your failure to maintain the security of your User Account and passcode. You may not disclose your passcode to any third party, and you are solely responsible for any use of or action taken under your passcode through the App.
11.6. You hereby acknowledge and agree that you may not be able to access all or some Services through the App outside of the jurisdictions where the Company is regulated and/or entitled to conduct business. You acknowledge and agree that the Company may suspend or terminate, at any time and without prior notice, your authorization to download, install or use the App and to access and use the Services through the App.
11.7. You may not use the App at any place or in any manner that would violate any Applicable Laws and/or regulations. Any offer of any feature, product or service is void where prohibited. You acknowledge and warrant that when traveling abroad, it is your duty to verify whether in the country where you are traveling, the Services are prohibited, as it is also your duty to check the local laws and regulations in order to make sure that you are not in any breach. The list of countries where the App is available is in Annex 2 of these Terms. It may be amended from time to time. Users who are located in restricted countries must refrain from downloading/using the App.
11.8. As previously indicated, the Company may make available the functions of the Fiat Assets at a different stage from when the App is made available in the country. Users who are located in restricted countries must refrain from downloading/using the App.
11.9. The App cannot be used by persons who are on any trade or economic sanctions lists, such as, but not limited to, ES-, EU-, CH- or United Nations Security Council Sanctions List.
11.10. You must promptly notify us if You are or have become a PEP within the thresholds of the Applicable Laws or if You have a relative that is or has become a PEP within the thresholds of the Applicable Laws.
12. YOUR USER ACCOUNT
12.1. To register as a User, you must first download the App. In order to be able to access the App, You would need to include an email address and your telephone number. In order to become a User of the Services, the User must provide the following Personal data:
12.2. By using and/or registering on the App you agree to:
12.3. In order to be able to use all the Services available on the App, you would be required to complete the entire KYC Process. You authorize the Company to use any Personal data or information provided in registering to verify your identity (including any updated information). You are obliged to notify the Company and/or SwissBorg Invest SA if you are a Swiss User of any changes to your Personal data requested through the KYC Process immediately at the following email address firstname.lastname@example.org.
12.4. If You provide false or misleading Personal data or do not notify the Company of changes to your Personal data immediately, the Company reserves the right to terminate or suspend your User Account immediately and without notice to you or any liability of whatever nature. You understand and agree that you shall not circumvent or attempt to circumvent any Company's policy about your User status such as temporary or definitive suspensions or other type of access limitations or restrictions. The Company retains the right to cancel User Accounts that have been inactive for a long time or are considered to be misleading without prior notice to the User.
12.5. The Company reserves the right to reject any registration and to refuse Services to anyone for any reason, in its sole and absolute discretion, without any obligation to indemnify such Visitor. Any loss or compromise of your electronic device or security details may result in unauthorized access to the App by third-parties and the loss or theft of Assets held in your Wallet, including but not limited to your linked Bank Account. You hereby agree to consider your access credentials as confidential information, and you understand to not disclose such information to a third party.
12.6. You can use your User Account on multiple electronic devices. It is therefore your sole responsibility to ensure that all the electronic devices used are properly secured and that unauthorized access to the App is not permitted. Any unauthorized access to the App on any electronic device by third-parties could result in the loss or theft of Assets held in your Wallet, including but not limited to your linked Bank Account.
12.7. You hereby agree to consider your access credentials as confidential information on any electronic device you use, and you understand to not disclose such information to any third party.
12.8. Standard and Premium Account. You can choose to upgrade your Standard Account to a Premium Account by Staking a balance of CHSB Tokens for a period of twelve (12) months. You can choose to upgrade your User Account regardless of whether you were an ICO Contributor or not.
If you were an ICO contributor, you can upgrade your Standard Account to Premium Account by Staking a balance of CHSB Tokens for a period of twelve (12) months.
IMPORTANT: To prove that you are an ICO contributor you need to register to the App using the same email address used when participating in ICO.
12.8.1. It is only possible to remove the CHSB Tokens Staked in your User Account after the expiry of twelve (12) months.
12.8.2. After the twelve (12) months period, the CHSB Tokens will remain Staked until you choose to unlock them. By no longer Staking the CHSB Tokens, You will lose the benefits offered to the Premium Account. In order to re-activate the Premium Account, You will have to Stake your CHSB Tokens for another twelve (12) months.
12.8.3. The number of CHSB Tokens required to be Staked in order to have the Premium Account may vary over time, at the Company’s sole discretion. The amount required to be Staked is subject to changes and We reserve the right to change this amount from time to time. We shall give you prior notification before making an amendment of such amounts to be Staked.
12.8.3. By Staking your CHSB Tokens, you are only locking up the CHSB Tokens for a determined period of time within your User Account. The Staked CHSB Tokens will not be sent to any other address controlled by the Company or any Related Entity.
12.8.4. The User shall not be obliged to increase or decrease the amount of CHSB Tokens to be Staked depending on its price volatility over the twelve (12) month period. The Company does not have the right to use the CHSB Tokens which have been Staked by you. There will be no reward on the CHSB Tokens Staked by you regardless of the amount which shall be Staked by you. The Company does not have the right to use the CHSB Tokens which have been Staked by you.
12.9. Lost Access. If you lose access to your User Account, We will be able under certain conditions to get back access to your User Account. The procedures outlined in the “Forgot?” toggle will need to be followed by you in order to regain access to the User Account.
12.10. You are solely responsible to safeguard your Paper Key. We do not store information related to your Paper Key and we do not have access to your Paper Key. If you lose your Paper Key you won’t be able to retrieve your Account using the Paper Key. If you lose access to your User Account, we will be able under certain conditions to revert your User Account. The procedures outlined in the “Forgot?” toggle will need to be followed by you in order to regain access to the User Account.
12.11. You may close your User Account by providing written notice to the Company, and upon receipt of such notice, a hold will be placed on your User Account to allow any then pending transactions to clear. After notifying us of your desire to close your User Account, we may terminate your ability to transact in your User Account and only permit you to request a withdrawal in respect of the remaining available Assets associated with your User Account. Closing your User Account will not affect any rights and obligations incurred prior to the date of User Account closure. All Assets must be withdrawn before the closing of your User Account will be finalized.
13. PORTFOLIO STATISTICS
13.1. We provide statistics in your User Account in order to provide you with a better understanding of your Assets, Withdrawals, profit/loss and the Processing Fees or Transaction Fees which are charged or may be charged. These statistics are provided for information purposes only. Although effort has been made to provide complete and accurate information, we make no warranties, express or implied, or representations as to the accuracy, completeness or reliability of content on these statistics. We assume no liability or responsibility for any error or omissions in the information contained herein. We may discontinue showing this information at any time without notice.
13.2. Notwithstanding that you are present in a country where the App has only Virtual Currencies available, you shall still be allowed to view the portfolio in your User Account by allowing for the “Fiat Assets” view. You can also set the Portfolio statistics view by default to have USDC as the base currency.
13.3. Any social media posts, advertising material, video content, articles, blog posts as well as any content which is produced by the Company or any Related Entity is purely informative and shall not serve as investment advice, marketing of financial products or as a personal recommendation to you.
14. STATEMENT OF ACCOUNT
14.1 A statement of your User Account, including the amount and type of your Assets, may be accessed in electronic format for viewing online at the applicable page in your User Account. We use commercially reasonable efforts to ensure that the information contained in your User Account statements is accurate and reliable; however, because the information is provided real-time, errors may occur.
14.2. If you believe that your statement of your User Account contains any errors, please notify us immediately of such error, along with any additional information concerning the error. If we do not hear from you within five (5) business days after the applicable transaction and/or any fee (if applicable), such transaction and fee will be deemed accepted by you and will no longer be subject to be allowed to challenge the information in line with this Section.
15.1. For more details regarding Transaction and fees resulting from the Withdrawal of Assets from the User Account, please check: https://swissborg.com/legal/wealth-app-fees.
15.2. By clicking “Confirm Exchange”, you are giving your consent for fees to be deducted by the Company for the Execution of an Order.
15.3. The Transaction Price shown in the App is the net of Processing Fees. Therefore, the Processing Fees are charged for every Transaction carried out on the App.
16. REWARDS (REFERRAL PROGRAM)
16.1. By referring the App to another individual (hereinafter the “Referred Person”), you and the Referred Person would be eligible to individually earn up to the equivalent of one hundred Euro (€100) in BTC. In order for you and the Referred Person to be eligible to win the Reward, the Referred Person would have to register as a User on the App and make an initial deposit which has the minimum equivalent value of fifty Euro (€50).
16.2. The amount received by you and the Referred Person individually shall be a random amount between the equivalence of zero Euro (€0) to one hundred Euro (€100) in BTC. The Company reserves the right to unilaterally terminate the Referral Program from time to time. You shall be duly notified when the Referral Program shall be terminated.
16.3. The Company reserves the right to declare that Users which are on-boarded from certain countries do not receive the rewards indicated in this Section 16. The list of these countries shall be made available to the User and may be updated from time-to-time. You shall not hold the Company liable for any losses which are incurred by you by the use of the App if the Company exercise its rights under this Section 16.3.
17. SWISSBORG MATERIALS
Any materials that can be found on the App, including but not limited to the Daily Bitcoin Analysis, App Content including video materials or articles, are for informational purposes only. Although effort has been made to provide complete and accurate information, the Company does not make any warranties, express or implied, or representations as to the accuracy, completeness or reliability of content of any information provided. We assume no liability or responsibility for any error or omissions in the information contained herein.
Any analysis or statistic is purely informative and shall not serve as investment advice or as a personal recommendation to the User.
18. INTELLECTUAL PROPERTY RIGHTS
18.1. The Company reserves all right, title and interest in its and any possible affiliates' Intellectual Property Rights in and to the Execution Interface, the App and/or the Services, the Company name, the domain names and the App Content. Intellectual Property Rights and all other proprietary rights in relation to the App Content available on or through the App (including but not limited to the Execution Interface, software, mobile software, algorithms, codes, audio, video, text, animations, files, photographs designs, graphics, layouts, images, video, information and their selection and arrangement for the App, but excluding the Exchange API and software) are the exclusive property of the Company or its licensors.
18.2. With regards to the App Content, Intellectual Property Rights also include rights to (i) the App (ii) the Execution Interface (iii) the Services provided by the Company or any Related Entity and (iv) all designs, layouts, software, databases, interfaces, displayed and technical information associated with the Services or the App.
18.3. All Intellectual Property Rights in and to the App Content not expressly mentioned herein are reserved to the Company. All copyright and other proprietary notices shall be retained on all reproductions of the App Content. Any other use of the App Content, including but not limited to the distribution, reproduction, modification, the making available, the communication to the public, publicly performance, framing, downloading, displaying or transmission, including the creation of any derivative work in whole or in part, without the prior written consent of the Company is strictly prohibited.
18.4. You may not derive or attempt to derive the source code of all or any portion of the App, Execution Interface, software or mobile software (hereinafter referred to as “Software”), permit any third party to derive or attempt to derive such source code, or reverse engineer, decompile, disassemble, or translate the Software or any part thereof. The Company shall retain all Intellectual Property Rights and other rights in and to the Software, and any changes, modifications or corrections thereto, subject to open source software used in relation to the App.
18.5. The Company, together with its licensors expressly reserves all Intellectual Property Rights in all text, programs, products, processes, technology, content, source code, object codes, layouts, and other materials, which appear on the App. Access to the Services does not confer and shall not be considered as conferring upon anyone any license under any third party's intellectual property rights.
19.1. Subject to strict compliance with these Terms and for the purpose of using the App and benefiting from the Services, the Company grants you a limited, non-transferable, non-exclusive, non-sublicensable, revocable license to:
(all together hereinafter referred to as the “License”).
19.2. We are constantly modifying and improving the App and/or our Services. We may at any time introduce new features, change existing features, or remove features from the App and/or Services at any time and without notice.
19.3. The License granted to you by the Company will automatically extend to any new feature or Service available on or through the App. The License is granted to you subject to the payment of any fees which the Company may impose whenever a Transaction is carried out by you. In the event that the Company, at its sole discretion, suspends or terminates the possibility of the User to make use of the App or Services, the License granted by the Company is immediately revoked without any reservation and the User Account shall be closed with immediate effect.
20. REVIEWS, FEEDBACK & COMMENTS
20.1. If you provide us with any feedback on or comments regarding the App and/or the Services, you grant the Company the right to use such feedback or comments for any purpose without restriction or payment to you. You consent that these comments and reviews are displayed on the App.
20.2. Upon posting any reviews, comments or ratings on Google Play Store or the App Store, you hereby assign all your Intellectual Property Rights that may exist on your reviews to the Company.
20.3. You hereby irrevocably release the Company from and waive all rights against the Company in respect of any liability arising out of or in connection with the publication of any defamatory, infringing or illegal reviews about you.
20.4. You agree to fully indemnify (including Court and attorney fees) and hold harmless the Company and Related Entities (including its respective employees, directors and representatives) against any claim or action brought by a third party, arising out of or in connection with any of the reviews left by you on Google Play Store or the App Store. Should you have any claim against any other User, you shall address such dispute directly to such User.
21. CLOSING YOUR ACCOUNT
21.1. You may close your User Account by providing written notice to us, and upon receipt of such notice, a hold will be placed on your User Account to allow any then pending transactions to clear. After notifying us of your desire to close your User Account, we may terminate your ability to transact in your User Account and only permit you to request a withdrawal in respect of the remaining available Assets associated with your User Account. Closing your User Account will not affect any rights and obligations incurred prior to the date of User Account closure.
21.2. All Assets must be withdrawn before the closing of your User Account will be finalized. Any Asset that you cannot transfer out and/or which remains on your User Account after the closing of your User Account shall be held by the Company which will have title to such Asset.
22. PROHIBITED ACTIONS
22.1. When using the App and/or the Services, you shall not, including but not limited to:
22.2. You also warrant that You will not, including but not limited to:
22.3. Should you do so, please be informed that you may be irrevocably banned from using the Services and the Company reserves to claim for damages and/or to request injunctions.
22.4. If you breach any of these conditions, representations and warranties under these Terms or the Applicable Laws, we may terminate your use of the App and take legal actions under the Applicable Laws and these Terms.
23. SUSPENSION AND TERMINATION OF YOUR ACCOUNT
23.1. Without limiting other remedies that may be available to us, we also reserve the right, in our sole and absolute discretion, but subject to applicable laws, to block access to or to suspend, close or terminate your User Account, refuse to let you purchase or withdraw Assets, and freeze Assets or your User Account, at any time, with or without advance notice, if:
In addition, we may discontinue the App at any time. For the avoidance of doubt, our rights under this provision do not affect any other right under these Terms and are subject to the giving of any notice, demand or lapse of time which is required by applicable law and cannot be excluded.
23.2. The Company is not responsible for any loss of value of Assets to your User Account resulting from the suspension or closing or your User Account for any of the reasons listed above, including your violation of these Terms or from any government seizure or forfeiture. To the fullest extent permitted by applicable laws, you agree that neither we nor any third party acting on our behalf shall be liable to you for any termination of your access to any part of the App.
24. FRAUD DETECTION
24.1. You must notify us immediately if you suspect or become aware of any fraud or unauthorized use of your User Account or any other breach of security by sending us an email at email@example.com.
24.2. Upon receipt of written notice from you that the security of your User Account has been compromised, the Company will take reasonable steps to protect your User Account, including, for example, to prohibit actions initiated by the compromised User Account until your User Account is not frozen anymore or other security feature is activated. The Company is entitled to accept and rely on Orders, authorizations, instructions and any other actions coming from your User Account before you warn us that your User Account has been compromised.
24.4. You hereby agree to provide the Company upon the first request with all data requested by the Company for processing your Transaction. All Transactions processed by the Third-Party Service Providers will be screened and a number of checks on the Transactions will be done by the Third-Party Service Providers.
25. UNCLAIMED ASSETS
If there are Assets to your User Account and there has been no activity in your User Account for a period of more than five (5) years or as otherwise prescribed by applicable law, we may be required to report this as unclaimed property in accordance with abandoned property. If this occurs, we will use reasonable efforts to provide written notice to you. If you fail to respond to any such notice within seven (7) business days of receipt, or as otherwise required by law, we may be required to withdraw such Assets on your behalf and deliver any Asset to the applicable jurisdiction as unclaimed property. We reserve the right to deduct a fee or other administrative charges from such unclaimed Assets, as permitted by applicable law.
26. ORDER CANCELLATION AND REFUNDS
26.1. Once an Order is placed by the User through the Execution Interface and subsequently Executed, the User is not entitled to cancellations or Refunds. Through the operation of the Execution Interface and whenever instructed to do so by any national authority, Relevant Authority, national agency or any self-regulatory organization or if after internal assessment, we deem that a Transaction is being made with the intention to circumvent anti-money laundering or funding of terrorism laws, the Company shall take immediate action in preventing the Order from being Executed.
You understand and accept that any Transactions involving Virtual Currencies are not reversible. Distributed ledger technology does not allow for the reversal, deletion, removal or amendment of any Transactions which will be recorded.
26.2. Through the operation of the Execution Interface, the Company also reserves the right to not allow for an Order to be Executed if the conditions of these Terms are not respected by you. You hereby agree not to unduly oppose any payments processed through the Third-Party Service Providers. Should you unduly oppose to payments processed through the Third-Party Service Providers, you hereby agree to indemnify and hold the Company free from all direct and indirect damages and/or fees (including chargeback fees, attorneys and court fees) incurred by such undue opposition.
26.3. We reserve the right to cancel any Transaction affected by such circumstances without any obligation to indemnify the Users.
27. LINKS AND LINKING
27.1. Third Party Links. Some websites, apps and resources that are framed or linked to or accessible from the App are owned and operated by third parties. Because we have no control over such websites and resources, you understand, acknowledge and agree that the Company is not responsible or liable for the availability of such external websites or resources, and do not screen, offer or distribute or endorse such websites or the content, products, including financial products, advertising or other materials presented therein, and is not responsible or liable for any such content, advertising, services, products, including financial products, or other materials on or available from such websites, apps or resources.
27.2. No Liability; Indemnification. You further understand, acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with use of or reliance on, any such third-party content, products or services available on or through any such website, app or resource. If you decide to access any such third-party website, you do so entirely at your own risk and subject to any terms and conditions and privacy policies posted therein.
You hereby agree to defend and hold harmless the Company from and against any and all losses that may result from your use of links that may appear on the App or via the Services.
You are aware and accept that we do not provide any legal or tax advice. You are responsible for your compliance with any tax laws, regulations and guidelines which affect the Transactions which you carry out through the Execution Interface. We are not responsible for the verification of your taxation/fiscal integrity. If you are unaware of your fiscal obligations, if need be, you will seek the advice of a lawyer or tax expert.
29. ELECTRONIC COMMUNICATIONS
29.1. When you use the App and the Services, or send emails to the Company, you are communicating with us electronically. When sending us emails, you need to use your correct email address. The Company is not responsible or liable for any wrong or misspelled email address or inaccurate or wrong Personal data submitted to the Company.
29.2. By using the App, you agree to receive electronically any communications related to your use of the Services and/or the App, including emails by the Company regarding reduction of Fees for the use of the App. We will communicate with you by email or by posting notices on the App. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from us intended for receipt by You shall be deemed delivered and effective when sent to the email address you provide using the Services for your User Account.
30.1. Company’s names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of the Company or its licensors. No trademark or service mark license is granted in connection with the materials contained on the Services. Access to the Services does not authorize anyone to use any name, logo or mark in any manner whatsoever.
30.2. "SwissBorg®" is a registered trademark as a name and logo and www.swissborg.com a domain name owned by the Company. The trademark "SwissBorg®" together with the other graphics, logos, layouts, designs, page headers, button icons, scripts and service names on the App are the trademarks or trade dress of the Company (referred to as the "Trademarks").
30.3. You may not use the Trademarks, including as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or create the impression that the Company endorses any product or service. You may not reproduce or use the Trademarks without the prior written permission of the Company.
30.4. Any goodwill accruing out of the use of the Company's and the Trademarks, trade and business names and service marks will vest in the Company and its affiliates, as the case may be.
31. RISK DISCLOSURE
You shall assume responsibility for any of the risks listed in these Terms and any other risks, assumptions and decisions involved. In the event that you are a Swiss User, you warrant and accept that you understand these risks and that they are also applicable to the Execution-Only Mandate Agreement.
a. General risks associated to blockchain technology
You acknowledge that the risks related to your use of the App include (but are not limited to):
The Company does not own, govern or control the underlying software protocols of blockchain networks that govern the operation of Virtual Currencies. In general, the underlying protocols are open source, and anyone can use, copy, modify, and distribute them. The Company is not responsible for the operation of the underlying network protocols, and does not make any guarantees regarding their security, functionality, or availability.
The nature of Virtual Currencies may lead to an increased risk of fraud or cyberattacks and may mean that technological difficulties experienced by a third party may prevent access to, or use of, your Virtual Currencies.
Blockchain networks may be the target of malicious attacks or 51% attacks seeking to identify and exploit weaknesses in the software or the protocol, including through the introduction of weaknesses and bugs into core infrastructure of the network and open source code which may result in the loss or theft of Virtual Currencies.
b. Volatility Risks and Financial Losses
By using this App, You acknowledge and understand the purpose and complexity of Virtual Currencies, markets any systems based on distributed ledger technology, how their storage is carried out and how they are transmitted and how its full framework are significant and sufficient, and you shall assume responsibility for any of the Risks listed in these Terms and any other risks, assumptions and decisions involved.
You should ensure that you have appropriate financial resources to request for the Execution of Orders, and that you have the ability to bear any losses that may arise from your trading activity. You should not rely on being able to generate profits in order to pay down or relinquish any credit or financing you might have entered into. You acknowledge that the Company and the Related Entity does not provide any financial advice or any form of advice in relation to the Transactions you intend to Execute.
You are also aware that the market may be highly volatile. Such volatility could be caused not only by the Company's and the Related Entity’s operational performance or other events involving the Company and the Related Entity and/or its Users, or competitors, but also by changes in general conditions in the economy or the financial markets, and the fintech industry in particular.
There is also a high-risk of loss which may result from the coordinated purchase and/or sale of Virtual Currencies which may result in an adverse effect on the prices of the Assets which are available within your User Account. You understand that the Company cannot predict or foresee the possibility of a coordinated purchase and/or sale carried out by an individual third-party or multiple third-parties. Therefore, you will not hold the Company liable for any losses which may result from these instances.
As a result of such fluctuations, you are also aware that the Virtual Currencies and/or Fiat Assets which You purchase may not retain the same Transaction Price or above that Transaction Price and important losses may be incurred with potentially no profit or return.
The Market Price of Virtual Currencies and/or Fiat Assets which appear in your Wallet or which you intend to Execute a Transaction are subject to various factors of price volatility which include, but are not limited to: (i) actual or anticipated fluctuations in the financial condition of the market; (ii) market expectations for the financial performance of Virtual Currencies and/or Fiat Assets; (iii) the perception of the success and impact of Virtual Currencies and/or Fiat Assets; (iv) the entrance of new individuals within the market, who may enter through other mediums and not necessarily from the App; (v) new products in the markets of the Company; (v) actual or anticipated sales of the Virtual Currencies and/or Fiat Assets; (vi) the (il)liquidity of the market for Virtual Currencies and/or Fiat Assets; (vii) new laws or regulations or changes in interpretations of existing laws and regulations affecting the Virtual Currencies market and/or Fiat Assets market (viii) general market and economic conditions; (ix) confidence in the Fintech industry and/or in distributed ledger technology and/or in Virtual Currencies and/or Fiat Assets market; (x) expiration of any lock-up undertakings related to the Virtual Currencies and/or Fiat Assets offered on Exchanges to which the Execution Interface is interfaced; (xi) expiration of the twelve (12) month period for not using Rewards earned in the Community App; (xi) announcements of developments related to the Company's business; (xii) local market conditions; (xiii) the absence of secondary market or demand for Assets; (xiv) the termination of the obligatory Staking period for the benefits incurred by a Premium Account.
The price and liquidity of Virtual Currencies have historically been subject to high levels of volatility and significant price fluctuations and may continue to be subject to such volatility in the future. Virtual Currencies are relatively new products and technologies and their acceptance as a form of payment remains limited. In addition, a significant proportion of demand for Virtual Currencies may be generated by speculators seeking returns based on price volatility. As a result, Virtual Currencies are highly susceptible to a wide range of external factors which may have a disproportionately negative impact on the value of such Virtual Currencies as compared with traditional assets.
The Company does not provide, nor can it control, the prices for the Assets for which Orders may be Executed on the App. The Market Price of the Virtual Currencies and/or Fiat Assets is influenced by a broad array of factors and can change rapidly and unexpectedly, meaning the value of those Virtual Currencies and/or Fiat Assets, and your related profits and losses on your Assets, can also change rapidly and unexpectedly.
Amongst other things, prices of Virtual Currencies and/or Fiat Assets can be subject to gapping (where the price of the Virtual Currencies and/or Fiat Assets opens significantly above or below the previous day’s closing price) and slippage (where the price the Virtual Currencies and/or Fiat Assets is Executed at is different to the price to that which was quoted at the time the Order was submitted), especially in periods of market volatility.
Market Price and volume fluctuations are often experienced with regards to Virtual Currencies and/or Fiat Assets. Such fluctuations as well as the economic situation of the financial markets may have a significant negative effect on the value of Virtual Currencies and/or Fiat Assets, regardless of the operating results and the financial position of the Company and the Related Entity. Fluctuations in the Market Price of Virtual Currencies and/or Fiat Assets may result in a negative impact on the Virtual Currencies and/or Fiat Assets offered by the Exchanges interfaced to the Execution Interface.
c. Risks related to Exchanges
The Company cannot ensure that an active and liquid trading market for Virtual Currencies and/or Fiat Assets will exist and that the Market Prices presented for Virtual Currencies and/or Fiat Assets on Exchanges interfaced with the Execution Interface will not decline. The liquidity of any Exchange will depend on the number of purchasers and sellers, the market for similar instruments, the market capitulation of the Virtual Currencies and the availability of the Fiat Assets and other factors beyond the Company's and/or the Related Entities’ control.
By using the App, You acknowledge and understand the purpose and complexity of Virtual Currencies and/or Fiat Assets. You also acknowledge and understand that any systems based on distributed ledger technology, how their storage is carried out, how they are transmitted as well as the and full framework are significant and sufficient, and the tradability of Assets requires them to be traded on an Exchange. The Company cannot guarantee for the listings on Exchanges. In case of a listing on an Exchange, Virtual Currencies and/or Fiat Assets could be subject to considerable fluctuations in value and Market Price and that the Virtual Currencies and/or Fiat Assets can therefore also exhibit increased or high volatility.
This also concerns the future development of the Virtual Currencies and/or Fiat Assets and the exchange rate at which the Virtual Currencies and/or Fiat Assets could possibly be exchanged into other Virtual Currencies and/or Fiat Assets in the future. A forecast of the future performance of the Virtual Currencies and/or Fiat Assets or market liquidity is therefore not possible to be given and shall not appear on the App.
However, there is an indication of the trends with which You Execute Orders. You shall be solely responsible for the interpretation which results in you carrying out a Transaction. In particular, no statements will be made regarding how much liquidity is available or could become available for the Virtual Currencies. As a consequence, there can be no assurance (i) that liquidity on the Exchange will develop or continue after the Transaction, (ii) that the Market Price of the Virtual Currencies exhibited by Exchanges will not decline below the Transaction Price or that (iii) other individuals in the market will be able to sell their Virtual Currencies quickly. You are solely responsible for the Orders you pass through the App and the Execution Interface.
The Transaction Price may not be indicative of the Market Price of the Virtual Currencies and/or Fiat Assets after completion of the Transaction. The Market Price exhibited on the Exchanges to which the Execution Interface is interfaced will depend upon several factors which are beyond the Company's control. These factors include, but are not limited to: (i) market expectation of Virtual Currencies or Fiat Asset’s performance or financial condition; (ii) fluctuations in the financial positions or operating results; (iii) general market and economic conditions; (iv) announcements by foundations or companies have launched the Virtual Currencies, their business, their customers and their suppliers and any other secondary markets which are not interfaced to the Execution Interface as well as the Market Price of BTC and other Virtual Currencies.
Further, developments in, and changes to recommendations by analysts regarding the Virtual Currencies and/or Fiat Assets market may also affect the Market Price of Virtual Currencies, and/or Fiat Assets. Any such market fluctuations may adversely affect the Market Price of Virtual Currencies and/or Fiat Assets.
It is unclear, according to the current state of the law and case law, whether and to which extent the transfer of Virtual Currencies will be treated under the law of the country from where the Virtual Currency is launched. Therefore, the User acknowledges that activity which was deemed to be legal in a country where the Services are offered may be deemed to be illegal upon a change of law or due to the introduction of a directive, guideline or regulation from a governmental authority.
You have the sole responsibility of monitoring the value of the Assets you hold and you should ensure that you can access the App on an ongoing basis so as to do this.
By using the App, You hereby understand and acknowledge that any Virtual Currency and Fiat Assets that you place on your User Account may be held on your behalf by the Company in a SwissBorg Exchange Account, for operational purposes only. You hereby acknowledge and understand that there are risks associated with holding Virtual Currency and/or Fiat Assets on an Exchange, including but not limited to Security Breaches.
Exchanges are entirely digital and, as with any virtual system, are at risk from hackers, malware and operational glitches. Even though Exchanges take various steps to preserve the security, Virtual Currencies which are held in wallets provided by such Exchanges remain vulnerable to hacking. If a thief gains access to one or more wallets (i.e. by stealing the private encryption key to the Exchange wallets), he/she could transfer the stolen Virtual Currencies to another account. Due to the fact that Virtual Currency transactions are irreversible, this could be a problem.
The Company cannot give any assurance that the Virtual Currencies which are available on the Exchanges are either originating or have not been mined within a country which is sanctioned or black-listed by FATF or if the origins of the funds with which the Virtual Currencies were initially purchased before being available on the Exchange are illicit funds which originate from money laundering. The User cannot hold the Company and the Related Entity liable for any losses or damages which may arise from any proceedings against the User who owns Virtual Currencies which either originate from sanctioned or black-listed countries or which were purchased using illicit funds before being made available on the Exchanges.
d. Risks associated to Yield Wallets and/or Yield Programs
YOU UNDERSTAND THAT THE COMPANY, THROUGH THE APP, SOLELY ACTS AS A TECHNOLOGY PROVIDER WITH RESPECT TO YIELD WALLETS INTERFACED WITH THE APP. THEREFORE, ANY LOSSES WHICH MAY BE INCURRED BY THE USER FROM THE USE OF THE YIELD WALLET(S) ALLOWING YOU TO PARTICIPATE TO YIELD PROGRAMS OPERATED BY THIRD PARTIES ARE SOLELY THE RESPONSIBILITY OF THE YIELD PROGRAM OPERATORS.
The Company does not own or control any of the smart contracts or wallets’ underlying source code of Yield Programs.
There are risks of cyber threats or hack when placing the Virtual Currencies into Yield Programs, which may lead to losses or damages since Yield Programs are based on smart contracts. Yield Programs and/or underlying smart contracts and/or wallets may be hacked and/or controlled by hackers which may take control over Virtual Currencies transferred to Yield Programs. If this happens, Yield Programs will not be in a position to refund the Users.
There is no warranty that the Yield Programs and/or Yield Program Gateway(s) are covered by an insurance policy or insurance scheme which covers Yield Programs and/or Yield Program Gateway(s). The Company does not guarantee that the Yield Programs Gateway(s) secure the Virtual Currencies which are transferred to the Yield Programs. There is, therefore, an important counterparty risk when placing Virtual Currencies into Yield Programs.
Since it only acts as a technology provider allowing Users to benefit from Yield Wallet, the Company does not constantly check the creditworthiness of the Yield Programs and/or Yield Program Gateway(s). The Company excludes all liability risks of default or any other risk other than contractual risk. There is a potential risk that, like any organization, the operations may not continue indefinitely or may not be able to pay the yield. There is no guarantee that the Virtual Currencies transferred to the Yield Programs and/or Yield Program Gateway(s) shall be held separately from their operational funds. The Company does not guarantee that the Yield Programs will hold the funds segregated and it cannot guarantee what occurs with the funds.
The regulatory status of the Yield Programs is currently unsettled. It is possible that in the future, certain laws, regulations, policies or rules relating to the Yield Programs’ business models or operations may be implemented, which would directly or indirectly affect or restrict the Yield Program Gateway(s) and the Yield Program Services on the App.
e. Liquidity Risks
The Fiat Assets or Virtual Currencies made available on the Exchanges which are interfaced with the Execution Interface are all admitted to trading on the Exchanges. However, it is not guaranteed that there will be enough demand to carry out the Transaction when you place your Order(s). In some circumstances, such as instances of market volatility or where any Exchange has been suspended or otherwise restricted, it could also not be possible to carry out the Transactions within the App.
f. Risks related to Profile Statistics
These Risks are related to information provided on the App regarding your Assets and includes, but is not limited to, financial market data, quotes, news, analyst opinions and research reports, graphs or data and Daily Bitcoin Analysis. The information provided by us on the App Content or Website Content is not intended as advice.
The Company and all Related Entities (including its employees) does not endorse or approve the information and we make it available to you only as a service for your own convenience. The Company and its Third-Party Service Providers do not guarantee the accuracy, timeliness, completeness or correct sequencing of any of the App Content or Website Content or warrant any results from your use or reliance on the information.
Any information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Neither the Company and any related entity nor the Third-Party Service Providers or Exchanges have an obligation towards the User to update any information or opinions or Market Prices.
g. Cyber security attacks
The Company cannot warrant that there will be no threats or security risks or hacks to the App, the Software, the Exchanges, the servers within the Company which operate the App or the Execution Interface, the storage wallets of the Virtual Currency Custodian as well as any hacks or security risks to the Fiat Custodian within the App.
The Company cannot warrant that there will not be interruptions to the Services due to failures of Exchanges which are interfaced to the Execution Interface, due to the failure of the operations of the Fiat Custodian or due to the failure of the operations of the Virtual Currency Custodian.
Code cracking or technical advances such as the development of quantum computers, could present a risk for all distributed ledger technology. This could result in the theft, loss, disappearance, destruction or devaluation of Virtual Currencies.
The source code underlying the App, the Execution Interface, the Exchanges to which the Execution Interface is interfaced and the source code underlying the Virtual Currency could be updated, amended, altered or modified from time to time. There can be no guarantee that such update, amendment, alteration or modification will not adversely affect the functionality of the Virtual Currency.
The Company and/or Related Entities do not own or control the underlying software protocols which govern the operation of Virtual Currencies available for exchange on the App. In general, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. The Company and/or Related Entities is/are not responsible for operation of the underlying protocols and makes no guarantee of their functionality, security, or availability.
Since blockchain is an independent public peer-to peer network and is not controlled in any way or manner the Company and/or Related Entities shall not be responsible for any failure and/or mistake and/or error and/or breach which shall occur in blockchain or in any other networks in which the Virtual Currencies are being issued and/or traded.
The Company may, in the event of a fork, freeze the exchanging of the Virtual Currencies which are affected by this change in technology until the User has decided as to which version of the protocol it will support. The Company may choose to not allow Transactions for a Virtual Currency which underwent a hard fork.
In the event of such a freeze, the User will not be able to perform any Transaction related to this Vitual Currency. Such a freeze may occur after the hard fork has started to take effect. This could lead to significant uncertainties as to the Market Price of Virtual Currencies which has been transferred immediately before the freeze has been implemented. Hackers or other groups or organizations may also attempt to interfere with Wallets managed by the Virtual Currency Custodian and Fiat Custodian through Sybil attacks, phishing, spoofing, smurfing, malware attacks, consensus-based attacks and attacks related to any change of control within the distributed ledger technology network.
It is important to understand these risks due to the fact that the Company does not hold the Assets itself.
ALSO, BY USING THE APP, YOU HEREBY UNDERSTAND AND ACKNOWLEDGE THAT ANY VIRTUAL CURRENCIES THAT YOU PLACE ON YOUR USER ACCOUNT COULD BE TEMPORARILY HELD ON ANY OF THE EXCHANGES PRESENTED IN ANNEX 3 BELOW OR WITH A THIRD-PARTY SERVICE PROVIDER FOR OPERATIONAL PURPOSES ONLY. BY USING THE APP, YOU HEREBY UNDERSTAND AND ACKNOWLEDGE THAT YOUR ASSETS COULD BE AT A RISK BECAUSE OF HACKS OR SECURITY RISKS, WHICH COULD RESULT IN A THEFT OR LOSS OF ANY OF YOUR VIRTUAL CURRENCIES.
h. Legal risks
Generally, the regulation related to the operation of the App and the Execution Interface embedded into the App, as well as the regulation of Virtual Currencies, Exchanges, Yield Wallets, Yield Programs is likely to rapidly evolve. These foregoing regulations can also vary significantly among international jurisdictions. Such regulations are therefore subject to significant uncertainty.
The way your Assets will be held by the Company, by the Fiat Custodian and/or by the Virtual Currency Custodian may also have regulatory consequences which cannot be foreseen by the Company, although it struggles to adapt to the ever-changing regulatory practices. If this is the case, this may significantly impact the Market Price of the CHSB.
To the extent that a domestic government or quasi-governmental agency exerts regulatory authority, a Virtual Currency, including CHSB, may be materially and adversely affected. Virtual Currencies also face an uncertain regulatory landscape in many jurisdictions. Various jurisdictions may, soon, adopt laws, regulations or directives that affect Virtual Currencies.
Such laws, regulations or directives may conflict with the Company’s current understanding of the legal landscape or may directly and negatively impact the Company’s Services. The effect of any future regulatory change is impossible to predict, but such change could be substantial and materially adverse to the development and growth of the Company.
New or changing laws and regulations or interpretations of existing laws and regulations in various jurisdictions may materially and adversely impact the value of the Virtual Currency, the liquidity of the Virtual Currencies, the ability to access marketplaces or exchanges on which to trade the Virtual Currencies, and the structure, rights and transferability of Virtual Currencies or exchanges.
Future changes in national and international laws and other regulations may affect the Company’s operations and/or the way the App operates and/or the availability of the Services. The Company acknowledges that it is exposed to national laws and cross-border legislation embodied in laws and directives in the areas of tax, anti-money laundering and financial services. Further, it cannot be excluded that changes in the regulatory environment will adversely affect the App and/or the provision of the Services.
The tax treatment of Virtual Currencies is uncertain and may result in adverse tax consequences. The use of Virtual Currencies to make purchases may expose users to tax consequences that would not have resulted had their purchases been made in a Fiat Assets and the purchase and use of Virtual Currencies may have adverse tax consequences including withholding tax, income taxes and tax reporting requirements. Users must seek their own tax advice.
The Company does not exclude the possibility that the Fiat Assets and/or Virtual Currencies placed by you at the Fiat Custodian and/or the Virtual Currencies Custodian are returned back to your External Wallet or Bank Account. The Third-Party Service Providers have their own internal anti-money laundering policies and procedures which are applicable to any Assets which are available on your User Account.
Therefore, even though these Assets are accepted through the App and subject to the Company’s AML Policy, you are also aware that there is the possibility that your Assets might be refused by the Third-Party Service Providers.
i. Reputational risks
A reputational risk of Virtual Currencies resulting from the wrongful behavior of some actors, including Yield Programs and/or Yield Program Gateways, in this field cannot be excluded by the Company and Related Entities. The materialization of such risk may have a negative impact on the Market Price of Virtual Currencies available on the App.
j. Misrepresentation Risks
Virtual Currencies which are launched on an Exchange are usually supported by a white paper or prospectus, depending on whether the launched product is classifiable as a payment token, an asset token or a utility token. The content of the white paper or the prospectus is the responsibility of the entity or foundation which issues the Virtual Currency.
The Company does not assume responsibility for information within the whitepaper or prospectus which explains the purposes, scope or intent of a third-party when launching a Virtual Currency within an Exchange. If the Virtual Currency is available on any of the Exchanges to which the Execution Interface is connected, the User accepts and warrants that he/she will not hold the Company and/or any Related Entity liable for any misrepresentation of information or inaccuracies which are present in the whitepaper or prospectus of a Virtual Currency.
32. Service Provided “AS IS” and Release of Claims
32.1. THE SERVICES ON THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE COMPANY AND THE RELATED ENTITIES ALTOGETHER DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN RELATION TO THE SERVICES ON THE APP AND THE TRANSACTIONS IT EXECUTES ON BEHALF OF THE USER AND BASED ON THE ORDERS GIVEN BY THE USER.
32.2. IN ADDITION, THE COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THE SERVICES AND/OR THE APP AND/OR THE TRANSACTION EXECUTED THROUGH THE EXECUTION INTERFACE ON BEHALF OF THE USER. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES AND TRANSACTIONS CARRIED OUT ON YOUR BEHALF REMAINS SOLELY WITH YOU.
32.3. YOU AGREE THAT NEITHER THE COMPANY NOR ANY RELATED ENTITY NOR THIRD-PARTY SERVICE PROVIDERS IS/ARE RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY USER OR FOR ANY SERVICE PROVIDED BY ANY USER OR FOR THE TRANSACTIONS WHICH ARE EXECUTED ON YOUR BEHALF AND BASED ON THE ORDERS WHICH YOU PLACE ON THE APP. NEITHER THE COMPANY NOR ANY RELATED ENTITY WILL BE LIABLE FOR ANY CLAIM OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY USER OR SERVICE AVAILABLE ON THE APP.
32.4. YOU AGREE NOT TO HOLD THE COMPANY OR ANY RELATED ENTITY LIABLE FOR ANY LOSSES RESULTING FROM MAKING ANY VIRTUAL CURRENCIES AVAILABLE ON THE APP. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT WHETHER THE VIRTUAL CURRENCIES AVAILABLE ON THE APP ARE NO LONGER TRADED ON THE EXCHANGES CONNECTED TO THE EXECUTION INTERFACE.
32.5. YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL ACCESS AND USE THE APP AND THE SERVICES AT YOUR OWN RISK.
32.6. Any warranty, condition or other term arising out of or in connection with the Services or the Execution of Orders by the Company which might otherwise be implied into or incorporated into these Terms by statute, common law, laws applicable in the country where the Services or Execution of Orders by the Company are used or otherwise (including without limitation any implied term as to quality, fitness for purpose, reasonable care and skill) is hereby expressly excluded.
32.7. If You have a dispute with one or more User(s), You agree to release the Company, any Related Entities and/or its Third-Party Service Providers (including our affiliates, and each of our respective officers, directors, employees, agents, shareholders, retail partners, licensors, and suppliers) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes.
Since most of the Services are web-based, they might be subject to temporary downtime. From time to time we also update or maintain the App, which will result in the App not being available for a certain period of time. We do not warrant that the App and the Services operate uninterrupted or error free. We also do not warrant that the Fiat Custodian and/or the Virtual Currency Custodian do not operate uninterrupted or error free. We are not responsible for any damages or losses suffered by you as a result of any failure or interruption of the App, suspension of your access to the App, including any damage occurring as a direct or indirect result of a missed Transaction.
34. USER RESPONSIBLE TO UPDATE
You acknowledge that when we perform an update to the App, You would be required or asked to update the version of the App which is available on your device. We strongly recommend you to perform these updates immediately due to the fact that these updates might contain security patches, new services or availabilities which are not available on older versions. We are not responsible for any damages or losses suffered by you as a result of your failure to perform an update of the App.
35. CUSTOMER SUPPORT AGENT
36. LIMITATION OF LIABILITY
36.1. These Terms set out the full extent of our obligations and liabilities with respect to the Services and the provision of the App.
36.2. TO THE EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY LIABILITY (CONTRACT OR TORT) FOR ANY LOSS OR DAMAGES RESULTING FROM ORDERS PLACED ON OR THROUGH THE APP AND/OR ASSETS TRANSFERRED OUT TO YIELD WALLETS.
36.3. THE COMPANY CANNOT BE HELD RESPONSIBLE OR LIABLE IN ANY WAY FOR INACCURATE OR MISLEADING OR IN ANY OTHER MANNER DECEPTIVE INFORMATION WHICH IS NOT PROVIDED DIRECTLY BY THE COMPANY ON OR THROUGH THE APP.
36.4. THE COMPANY CANNOT BE HELD RESPONSIBLE OR LIABLE FOR ANY ERRORS (INCLUDING MANIFEST AND TYPOGRAPHICAL ERRORS), ANY INTERRUPTIONS (WHETHER DUE TO ANY (TEMPORARY AND/OR PARTIAL) BREAKDOWN, REPAIR, UPGRADE OR MAINTENANCE OF THE SERVICES) OR OTHERWISE, INACCURATE, MISLEADING OR UNTRUE INFORMATION OR NON-DELIVERY OF INFORMATION. EACH USER REMAINS RESPONSIBLE AT ALL TIMES FOR THE ACCURACY, COMPLETENESS AND CORRECTNESS OF THE (DESCRIPTIVE) INFORMATION (INCLUDING, AVAILABILITY AND ANY PERSONAL DATA OR OTHER INFORMATION) DISPLAYED ON OR THROUGH THE APP.
36.5. THE APP, ALONG WITH THE UNDERLYING EXECUTION INTERFACE, REQUIRES A WIFI OR INTERNET CONNECTION (THROUGH MOBILE DATA) IN ORDER TO FUNCTION. THEREFORE, THE USER SHALL NOT HOLD THE COMPANY AND/OR ANY RELATED ENTITY LIABLE OR RESPONSIBLE FOR ANY DAMAGES OR LOSSES WHICH MAY ARISE FROM THE FACT THAT THE USER DOES NOT HAVE SUFFICIENT WIFI OR INTERNET CONNECTION IN ORDER FOR THE APP AND/OR THE UNDERLYING EXECUTION INTERFACE TO FUNCTION PROPERLY.
36.6. YOU HEREBY IRREVOCABLY RELEASE THE COMPANY AND ANY RELATED ENTITY (AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FROM ANY DAMAGES OR CLAIMS (INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES) OF EVERY KIND OR NATURE, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, AND DISCLOSED OR UNDISCLOSED, ARISING OUT OF THE USER’S INTERACTION WITH THE EXECUTION INTERFACE AND/OR THE APP AND THE TRANSACTIONS WHICH YOU INSTRUCT THE COMPANY TO CARRY OUT ON YOUR BEHALF.
36.7. TO THE EXTENT PERMITTED BY LAW, THE COMPANY, ALONG WITH ANY RELATED ENTITY, HEREBY EXCLUDES: (I) ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY; AND (II) ANY LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, LOSS OF INCOME, PROFIT OR REVENUE; LOSS OF BUSINESS; LOSS OF PROFITS; LOSS OF ANTICIPATED SAVINGS; LOSS OF GOODWILL, USER INSATISFACTION, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, INCURRED BY ANY USER IN CONNECTION WITH THE APP, THE SERVICES, THE EXECUTION INTERFACE WITHIN THE APP OR THESE TERMS.
36.8. THE USER UNDERSTANDS THAT YIELD WALLETS, YIELD PROGRAMS AND/OR YIELD PROGRAM GATEWAYS RELY ON TECHNOLOGY WHICH IS OPERATED BY THIRD PARTIES WHICH DO NOT FALL WITHIN THE SCOPE OF CONTROL OF THE COMPANY. THE USER UNDERSTANDS AND AGREES THAT THE COMPANY IS NOT RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES WHICH MAY ARISE FROM OPERATIONS OR LOSS ON YIELD WALLETS, YIELD PROGRAMS AND/OR YIELD PROGRAM GATEWAYS. THE USER UNDERSTANDS THAT THE COMPANY IS ONLY A TECHNOLOGY PROVIDER. THE ABILITY TO TRANSFER OUT VIRTUAL CURRENCIES TO YIELD WALLETS THROUGH THE APP DOES NOT MAKE THE COMPANY LIABLE IN ANY WAY, NOR SHALL IT BE CONSIDERED AS AN OFFERING OF THE YIELD PROGRAMS AND/OR YIELD PROGRAM GATEWAYS. THE COMPANY SHALL IN NO EVENT BE HELD LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES WHICH USERS MAY UNDERGO FROM THE MISREPRESENTATIONS MADE BY THE YIELD WALLETS, THE YIELD PROGRAMS AND/OR YIELD PROGRAM GATEWAYS AND/OR ANY LOSS OF ASSETS AS A RESULT OF YIELD WALLETS, YIELD PROGRAMS AND/OR YIELD PROGRAM GATEWAYS.
36.9. THE COMPANY AND RELATED ENTITIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF THE APP, THE SERVICES AND THE EXECUTION INTERFACE WITHIN THE APP. THE COMPANY AND THE RELATED ENTITIES WILL NOT BE LIABLE FOR THE QUALITY OF THE VIRTUAL CURRENCIES WHICH MAY BE PURCHASED ON THE EXCHANGES CONNECTED TO THE EXECUTION INTERFACE. THE USER SHALL NOT HOLD THE COMPANY AND THE RELATED ENTITIES LIABLE OR RESPONSIBLE FOR ANY VIRTUAL CURRENCIES PURCHASED ON THE EXCHANGES CONNECTED TO THE EXECUTION INTERFACE WHICH ARE TAINTED WITH FUNDS ORIGINATING FROM MONEY LAUNDERING. THE COMPANY AND THE RELATED ENTITIES WILL NOT BE LIABLE FOR THE NON-COMPLIANCE OF THE USER WITH ANY LAWS GOVERNING HIS/HER ACTIVITY ON THE APP.
36.10. THE COMPANY AND THE RELATED ENTITIES WILL NOT BE LIABLE IN ANY WAY IF THE SERVICES MADE AVAILABLE ON THE APP ARE NOT AVAILABLE. THE COMPANY WILL NOT BE LIABLE FOR ANY ADVERTISEMENT MADE IN RELATION TO THE SERVICES MADE AVAILABLE ON OR THROUGH THE APP.
36.11. THE COMPANY AND THE RELATED ENTITIES IS/ARE NOT LIABLE FOR (PARTIAL) INTERRUPTIONS TO AND DOWNTIME OR SYSTEM FAILURE OF THE SERVICES DUE TO REPAIR, MAINTENANCE OR UPDATE WORK OR FOR OTHER REASONS THAT IT CANNOT DIRECTLY CONTROL INCLUDING BUT NOT LIMITED TO HACKS OR THAT ONLY IMPEDE USE OF THE SERVICES, EXCHANGES OR THIRD-PARTY SERVICE PROVIDERS TO ANY NEGLIGIBLE EXTENT, WHETHER FORESEEABLE OR UNFORESEEABLE. THIS PROVISION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. IN AUSTRIA, THE COMPANY’S LIABILITY FOR SLIGHT NEGLIGENT BREACH OF MATERIAL CONTRACTUAL OBLIGATIONS SHALL BE LIMITED TO THE AMOUNT OF THE DAMAGE TYPICALLY FORESEEABLE AT THE TIME OF THE CONCLUSION OF THE CONTRACT. “MATERIAL CONTRACTUAL OBLIGATIONS” ARE THOSE OBLIGATIONS WHICH PUT THE USER INTO EXACTLY THIS LEGAL POSITION TO WHICH HE/SHE SHALL BE ENTITLED PURSUANT TO CONTENTS AND PURPOSE OF THE CONTRACTUAL TERMS AS WELL AS SUCH OBLIGATIONS, WHOSE PERFORMANCE ONLY WILL MAKE POSSIBLE PROPER PERFORMANCE OF THE CONTRACT AND ON WHOSE FULL COMPLIANCE THE USER REGULARLY RELIES AND IS ENTITLED TO RELY.
36.12. IN ANY EVENT, THE COMPANY WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR ANY TRANSACTION, ANY LOSSES WHICH MIGHT BE INCURRED BY YOU DUE TO PRICE FLUCTUATION WHETHER IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, MORE THAN THE VALUE OF THE RELEVANT TRANSACTION.
36.13. THE COMPANY IS NOT LIABLE OR RESPONSIBLE FOR THE REMITTANCE, COLLECTION, WITHHOLDING OR PAYMENT OF THE RELEVANT TAXES DUE ON VIRTUAL CURRENCIES YOU PURCHASE OR CONVERT TO THE RELEVANT TAX AUTHORITIES. YOU UNDERSTAND AND AGREE THAT BY FILING ANY CLAIM MORE THAN THIRTY (30) DAYS AFTER THE DISCOVERY OF THE ALLEGED LIABILITY, YOU WILL BE DEEMED TO HAVE FORFEITED YOUR RIGHTS. ANY SUCH CLAIM SHALL BE TIME-BARRED.
37. FORCE MAJEURE
The Company cannot accept responsibility for any damage, loss, delay, or inconvenience caused to the User by circumstances beyond our reasonable control. Such circumstances, include but are not limited to:
39. ENTIRE AGREEMENT & SEVERABILITY
40.1. You may terminate your User Account and stop using the Services at any time and without notice to the Company. Similarly, you can terminate these Terms, the access to the Services at any time without notice or Court order.
40.2. The Company may terminate or suspend your User Account or ability to use the Service, in whole or in part, in the event that (i) you violate these Terms or violate any other rules that govern the use of the Services, including policies, (ii) your conduct may harm the Company, Users or others or cause the Company or others to incur liability, (iii) your User Account or Orders have been used for or suspected to be used for illegal, fraudulent or malicious activities or (iv) the Company receives a freezing order, stop order, directive, or any form of order from any judicial body, national authority or governmental authority or governmental agency which is directed towards any account registered under your name or (iv) as otherwise determined by the Company in its sole discretion.
You may retrieve your Assets within ten (10) days from the notification of termination of your User Account. Any Personal data, along with any copies, shall be deleted subject to any obligatory retention periods which may arise from the Applicable Laws. The Company does not warrant and guarantee that Personal data which is publicly available online and/or on search engines will be deleted.
40.3. The Company may modify and adapt the Services, and all App Content and other items used or contained in the Service, at any time without any obligation to indemnify you. The Company is entitled at any time to delete your User Account and block your access to the App in the event it considers that your use of the Services does not fully comply with these Terms or with any Applicable Laws.
40.4. In any case, the Company reserves the right to terminate the Services to anyone at any time without notice for any reason. Your access to, use of, or participation in the Services, including any content therein, may be prevented by the Company at any time after your termination of your User Account. Notwithstanding such termination, you agree that you will continue to be subject to the obligations which, by their nature, survive such termination or suspension, including the obligations relating to Intellectual Property Rights and conservation of certain information for a certain period of time.
41. RESERVATION OF RIGHTS
41.1. The Company and/or SwissBorg Invest SA retains the right to, in its sole discretion, immediately terminate any User Account, prevent or restrict access to the Services or take any other action to restrict access to the App or Execution Interface. The Company and/or SwissBorg Invest SA reserves the right and has absolute discretion but not an obligation, to remove, screen or edit any content that violates these provisions or is otherwise objectionable.
41.2. The Company and/or SwissBorg Invest SA reserves the right to refuse or terminate a User Account if you are otherwise making inappropriate use of your domain name. In any such case, the Company and/or SwissBorg Invest SA shall duly inform you with a reason why it exercised the right set out in this Section 41. The Company and/or SwissBorg Invest SA shall proceed to return the Assets to you, unless the termination of the User Account was carried out by the Company and/or SwissBorg Invest SA due to any illicit activity which contravenes any anti-money laundering laws and thereby triggers the Company’s obligation to freeze the any or all of the User’s assets until further notice.
42. NO WAIVER
The Company’s failure to enforce a provision of these Terms does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or these Terms as a whole.
The Company reserves the right to make any changes to these Terms at any time, as the Company deems necessary or desirable. If we make any material changes, we will notify you on the App and, when possible, by email, prior to the change becoming effective. Your continued use of the App and the Services after any such changes or after explicitly accepting the new Terms, upon logging into the App and/or using the Services shall constitute your consent to such changes. If you do not agree to any modifications to these Terms, you should stop using the Services. Your use of Services following the date on which such amended Terms are published will constitute your consent to the updated Terms.
The updated version of the Terms will include a new “last modified” date at the top of the Agreement in order to identify the then-currently applicable Terms. Following receipt of such a notice and the posting of the updated version of the Terms on the App, please review the Terms in order to ensure that you understand how your rights and responsibilities may have been affected by the revisions.
You may not assign any of your rights, licenses, or obligations under these Terms and/or the Execution-Only Mandate Agreement applicable to you. Any such attempt at assignment by you shall be void. The Company may assign its rights, licenses, and obligations under these Terms without limitation.
45. GOVERNING LAW AND JURISDICTION
The Terms shall be governed by the laws of Estonia. Any dispute regarding these Terms shall be subject to the exclusive jurisdiction of the courts of Estonia. The Execution-Only Mandate Agreement applicable to you shall be subject to its own applicable law and jurisdiction clause.
If You wish to contact Us regarding these Terms please do so at the following address Roosikrantsi tn 2a, Kesklinna linnaosa, Tallinn, Harju maakond, 10119, Estonia or at the following email address firstname.lastname@example.org.
Annex 1 - Definitions
App refers to the SwissBorg Wealth Application available on Android and iOS;
App Content means the content available on the App which is also accessible on the App and includes the reports, information, analysis and marketing material and videos;
Applicable Law(s) means the applicable law to the Terms and/or other laws of other jurisdictions, rules, regulations, directives, circulars, notices, guidelines and practice notes of any governmental authority. With regards to Swiss Users, the laws of Switzerland shall apply;
Bank Account means an account opened by a regulated bank, financial institution or custodian which belongs to the User;
BTC means the Bitcoin, a Virtual Currency created in January 2009;
CHSB Token(s) means the SwissBorg utility token;
Community App means the SwissBorg’s Community App;
Confidential information means information, idea, concept, material or any other Company’s data, not yet entered into the public domain, whether it has been communicated orally or in writing, including but not limited to all information regarding the Company’s business, concept or business model, all trade secret, all price lists and User’s data, including and in particular the Transaction;
ETH means the Virtual Currency generated by the Ethereum blockchain;
Exchange(s) means trading venues interfaced with the Execution Interface to which the Company has access in order to Execute Order(s) placed by User(s) on their behalf and listed in Annex 3;
Execution Interface means the Order Management System or “OMS” licensed to the Company;
“Execution of” or “Execute” or “Executed” or “Executing” an Order(s) and/or Transaction on behalf of Users means acting to conclude agreements to buy or to sell one or more Asset(s) on behalf of Users;
Execution-Only means the service offered in relation to the execution of Orders of Users without any discretionary power of the Company;
Execution-Only Mandate Agreement refers to the agreement available in Annex 6;
External Wallet means a Virtual Currency wallet to which a User may send or receive Virtual Currencies to or from which a User transfers or receives Virtual Currencies;
FATF refers to the Financial Action Task Force;
Fiat Account(s) refers to account(s) held under the name of the Company with the Fiat Custodian support each respective Fiat Asset which is available on the App;
Fiat Asset(s) means a centralized issued currency which is not backed by a physical commodity and established as a currency by governmental regulations or law. For the purpose of the App, shall include the Fiat Assets presented in Annex 4 below;
Fiat Custodian refers to a regulated bank or EMI which will serve as a custodian for Fiat Assets Third-Party Services Provider(s), as per Annex 5 below which warrants the Fiat Assets in the event of default;
Fiat Wallet means the Fiat Wallet which is designated to support Fiat Assets within the User Account;
ICO means SwissBorg’s initial coin offering held throughout December 2017 until January 2018;
ICO Contributor(s) means a User that has contributed to the SwissBorg’s ICO;
Intellectual Property Right(s) means including but not limited to, copyrights, patents, registered designs, design rights, database rights, trademarks, domain name rights, trade secrets, know-how, Confidential information or any other proprietary or industrial right, and any other similar protected rights in any country, whether registered or unregistered;
KYC means the “Know-Your-Customer” obligations of the Company under the applicable Money Laundering and Terrorist Financing Prevention Act of Estonia, the Federal Act on Combating Money Laundering and Terrorist Financing in Switzerland for the purposes of Swiss Users as well as any other Applicable Laws, regulations and guidelines and the Company’s AML Policy;
Market Making refers to the activity of buying or selling Virtual Currencies on own account at specified prices in order to ensure market activity and liquidity;
Market Price means the price of Virtual Currencies which is displayed on the Exchanges;
Order(s) means the instruction transmitted by a User through the Execution Interface to carry out a Transaction pursuant to these Terms and to the Execution-Only Mandate Agreement;
Order summary means the information which summarizes each Transaction executed by a User on the basis of the Assets available in the account;
Paper Key means a twelve (12) word recovery phrase that can be used to recover your User Account in the event that the details required in order to access the User Account are lost;
PEP refers to a Politically Exposed Person and is somebody who is entrusted to carry out a public function or political position or somebody who is family members or relative to somebody who is entrusted to carry out a public function or political position;
Personal data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
Premium Account means the User Account which has a Staked balance of CHSB Tokens. The balance of CHSB Tokens to be Staked is subject to changes from time to time and it is subject to whether the User has been an ICO Contributor or not;
Processing Fee means the fee(s) that the Exchange and/or the Virtual Currencies Custodian or Fiat Custodian will charge for processing a Transaction;
Refund(s) means a (partial) reversal of a particular Transaction, whereby the funds are reimbursed to the User on the initiative or request of the Company;
Related Entity/ies refers to SwissBorg Invest SA, Sborg SA and/or any entity controlled by the Company;
Relevant Authority refers to the authority within the Applicable Laws where any findings related to anti-money laundering are subject to the investigation in Section 7 of these Terms;
Reward means the random reward that can be earned by referring the App to a person, followed by them successfully passing the KYC Tier 1 check and depositing a minimum amount of Fiat Assets, which is indicated on the App, in his/her User Account;
Security Breach(es) means any act or omission that materially compromises either the security, confidentiality or integrity of any information, details or data or the physical, technical, administrative or organizational safeguards put in place that relates to the protection of the security, confidentiality or integrity of information, details or data including any breach or alleged breach of any security standards or such privacy practices;
Services means the services made available by the Company on or through the App as outlined in Section 5 of these Terms;
“Staked” or “Staking” or “Stake” means the process of locking CHSBs in order to receive access to the Premium Account on the Services offered on the App. There will be no monetary award or distribution of additional new Virtual Currencies with respect to Staked CHSBs;
Standard Account means any User Account which does not have any amount of CHSB Tokens Staked;
Suitability Process means the process put in place by the Company to carry out a due diligence on Personal data provided by Users in the course of the KYC Process;
Support Agent means a SwissBorg employee or a Third-Party Service Provider who is responsible for providing customer support services to the User;
SwissBorg’s AML Policy refers to the anti-money laundering policy which is adopted by the Company which is also applicable for the activities carried out by the User on the App;
SwissBorg Exchange Account refers to any account supporting Fiat Assets or supporting Virtual Currencies, which is held under the name of the Company within one of the Exchanges listed in Annex 3 of these Terms;
SwissBorg Invest SA refers to a company duly incorporated under the laws of Switzerland, with official address at Rue du Grand-Chêne 8, 1008 Lausanne, Switzerland, registered under the company number CHE‑499.067.328;
Swiss User(s) refers to Users who are residing or located in Switzerland when completing the KYC Process in order to create a User Account;
Third-Party Service Provider(s) means any natural or legal person providing an outsourced service on behalf of the Company, in line with an outsourcing agreement signed by the Company and the Third-Party Service Provider. A list of Third Party Service Providers is available in Annex 5 of these Terms;
Tier(s) refers to the tiers within the KYC Process wherein each User provides an amount of information depending on the Tier as defined in Section 11.3.2 of the Terms;
Token Swap(s) refers to the execution of swaps which allow for the migration from one protocol to another protocol;
Transaction(s) means the Execution of an Order on or through the App, using the Execution Interface. The possible Transactions are defined in Section 9.1 of these Terms;
Transaction Fees means the amount that the Company will charge in order to carry out a Transaction;
Transaction Price means the cost per Virtual Currency or Fiat Asset or the cost of Executing an Order at the time when it was Executed;
USDC(s) shall mean a collateralized US dollar stablecoin;
User Account(s) means the account created upon the User’s registration with the App;
VASP refers to any natural or legal person who is not covered elsewhere under the Financial Action Task Force Recommendations and as a business conducts one or more of the following activities or operations for or on behalf of another natural or legal person: i. Exchange between Virtual Currencies and Fiat Assets; ii. Exchange between one or more forms of Virtual Currencies; iii. Transfer of Virtual Currencies; iv. Safekeeping and/or administration of Virtual Currencies or instruments enabling control over Virtual Currencies and participation in and provision of financial services related to an issuer’s offer and/or sale of a Virtual Currencies;
Virtual Currency(-ies) means a value represented in the digital form, which may be digitally transferred, preserved or traded and which natural persons or legal persons accept as a payment token or as a utility token. The term Virtual Currencies shall also include CHSB Tokens and USDCs;
Virtual Currencies Custodian refers to a regulated service provider which will serve as a custodian for Virtual Currencies and Third-Party Service Provider(s), as per Annex 5 below which warrants the Virtual Currencies in the event of default;
Virtual Currency Wallet means the wallet designated to support the holding of Virtual Currencies, USDC and/or CHSB Tokens;
Visitor(s) means a person or entity using the App without having registered as a User;
Wallet means digital wallets available to Users on their User Account, including Fiat Wallet and Virtual Currencies Wallet;
Website refers to the website available at www.swissborg.com;
Website Content means the content available on the Website which will also be accessible on the App;
“Withdraw” or “Withdrawal” means to remove any amount of Virtual Currencies and/or Fiat Assets from the Virtual Currency Wallet or Fiat Wallet, thereby instructing the Company to request the Virtual Currencies Custodian and/or Fiat Custodian to return Assets to you in an External Wallet and/or Bank Account;
Yield Program(s) refers to the programs of decentralized finance (DeFi) platforms and/or centralized (CeFi) platforms accessible through Yield Program Gateway(s);
Yield Program Gateway(s) refers to the third-party that operates a Yield Wallet giving access to Yield Program(s);
Yield Program Services means the services available to User(s) of the Wealth App who opened a Yield Wallet operated by Yield Program Gateway(s);
Yield Program Terms refers to the terms of service for the Yield Programs;
Yield Wallet(s) means the wallet interfaced with the App controlled and operated by Yield Program Gateway(s) and allowing Users to participate to Yield Programs and to collect yield from such Yield Programs. The Yield Wallet(s) is/are operated and administered by Yield Program Gateway(s). The Company is not responsible for the control or operation of the Yield Wallet(s).
ANNEX 2 – COUNTRIES WHERE THE APP IS AVAILABLE
The App will be available for Users residing in the countries listed in the following link. The list is subject to change at the Company’s sole discretion: https://swissborg.com/supported-countries.
ANNEX 3 – LIST OF EXCHANGES
The Exchanges interfaced to the Order Execution and Management System are currently:
ANNEX 4 - FIAT ASSETS SUPPORTED IN THE APP
ANNEX 5 – THIRD PARTY SERVICE PROVIDERS
ANNEX 6 - EXECUTION-ONLY MANDATE AGREEMENT
This Execution-Only Mandate Agreement is only applicable to Swiss Users. SwissBorg Invest SA is currently not regulated by FINMA.
This Agreement is entered into by and between SwissBorg Invest SA, a company incorporated in Lausanne, with a registered address at Rue du Grand-Chêne 8, 1003 Lausanne [registration number: CHE-499.067.328] (“SwissBorg Invest SA”) and the users of the SwissBorg Wealth App who are residing in Switzerland wishing to Execute Orders on the SwissBorg Wealth App to place their assets held in custody by a third party Fiat Custodian or Virtual Currency Custodian or any other Virtual Currencies (“Asset(s)”) into Yield Programs as defined below (“Swiss User(s), “You” and/or “you””).
SwissBorg Invest SA and Swiss User may be individually referred to as a “Party” or collectively as the “Parties”.
a. SwissBorg Invest SA acts as portfolio manager on behalf of Users and representative office of SwissBorg Solutions OÜ, a company which is licensed to operate and distribute the SwissBorg Wealth Application available on Android and iOS (“SwissBorg Wealth App”);
c. SwissBorg Wealth App acts as technology provider for allowing Swiss Users to convert their Fiat Assets into Virtual Currencies and/or their Virtual Currencies into other Virtual Currencies and/or to transfer out Virtual Currencies to a Yield Wallet giving access to Yield Programs;
d. By placing Virtual Currencies into the Yield Wallet, Swiss Users are given access to Yield Programs;
e. Yield Programs are solely operated by separate third-party decentralized (DeFi) and centralized (CeFi) finance platforms and SwissBorg Invest SA has no control over such Yield Programs;
f. SwissBorg Invest SA will solely be acting as representative office and agent of SwissBorg Solutions OÜ to execute the Orders of the Swiss Users on an execution-only basis;
g. This Execution-Only Mandate (“Agreement”) outlines the relationship between Swiss Users and SwissBorg Invest SA with regards to placing Orders to exchange Assets or to transfer out Virtual Currencies to Yield Wallet controlled and operated by Yield Program Gateway(s) on Swiss Users’ behalf;
h. The Swiss Users must also accept the terms of service which are applicable to the Yield Programs (“Yield Programs Terms”) along with the Wealth App Terms in order to be able to benefit from the Yield Programs by collecting yields in their wallet interfaced with the App and operated by Yield Program Gateway(s) (“Yield Wallet”);
i. Any other capitalized terms within this Agreement shall have the same definition as the Wealth App Terms (words in the singular form include the plural form, and vice versa).
NOW, THEREFORE, it is agreed as follows:
1.1. By clicking the “Accept” tick-box, you accept this Agreement and you acknowledge that this Agreement has been read and that you agree to be bound by it and that it is separate from the Wealth App Terms and is concluded in a form demonstrable via text. You also agree to be bound by any laws and regulations which apply to the Execution-Only services rendered by SwissBorg Invest SA on the basis of this Agreement.
1.2. You warrant that you will not hold SwissBorg Invest SA liable for any losses or damages which may result from the lack of understanding of the Agreement, from your use of the SwissBorg Wealth App and/or from the provided Services or from the Yield Programs Terms.
1.3. You also acknowledge and agree that you have been clearly informed of the risks associated with accessing the Yield Wallet, the Yield Program Gateway(s) and/or the Yield Programs.
You warrant and represent that you fulfil all the Eligibility requirements set out under the Wealth App Terms before entering this Agreement.
3. User Experience
3.1. You warrant that you have the necessary experience and knowledge to place your Orders through the SwissBorg Wealth App and that you can properly assess the associated risks to the Yield Programs and take the investment decisions related to the Orders you place through the Execution Interface and that you can properly assess the associated risks.
3.2 You warrant that you shall not hold SwissBorg Invest SA liable in the selection and monitoring of your adequacy and experience with regards to any Orders which are placed through the SwissBorg Wealth App and/or for the use of the Yield Programs and/or with respect to the receipt and transmission of Orders to Execute Transactions to SwissBorg Solutions OÜ, the operator of the SwissBorg Wealth App (the “Company”).
3.3. You accept and understand that you are always responsible for ensuring that the Transactions carried out comply with any special provisions that oblige you to have the required authorizations and Assets to carry out the Orders.
3.4. You acknowledge that, under this Agreement, SwissBorg Invest SA shall not provide any investment advice, make recommendations to buy or sell Assets and you shall solely decide which Orders you shall place on through the SwissBorg Wealth App and monitor the performance of the Assets, at your own risk and taking full responsibility in this regard. You undertake to conduct a Transaction only if you have the necessary knowledge and experience and if you are fully aware of the risks as indicated in Article 12 of this Agreement.
3.5. You accept and understand that you are always responsible for ensuring that the Orders placed through the SwissBorg Wealth App for the use of the Yield Programs comply with any special provisions that oblige you to have the required authorizations and sufficient Assets to place the Orders.
3.6. You acknowledge that, pursuant to this Agreement, SwissBorg Invest SA does not provide any investment advice, make recommendations to buy or sell Assets on your behalf without having received your Orders and you shall solely decide which Orders you shall place and monitor the performance of the Assets sent within the Yield Programs, at your own risk and taking full responsibility in this regard.
3.7. You undertake to make use of the Yield Programs only if you have the necessary knowledge and experience and if you are fully aware of the risks as indicated in Article 12 of this Agreement.
4. Receipt and Transmission of Orders (Exchange)
4.1. Orders given by you to carry out a Transaction are sent by SwissBorg Invest SA to the Company through the Execution Interface according to the specifications provided in this Agreement.
4.2. Orders given by you on the SwissBorg Wealth App subsequent to the identification and verification of the Swiss User following the KYC Process by SwissBorg Invest SA will be transmitted to the Company through the Execution Interface.
4.3. Any Order received by SwissBorg Invest SA and containing the aforementioned details is considered to be given by you and will be transmitted to the Company. Therefore, you are expressly advised not to disclose the identification information to third parties.
4.4. You shall be solely liable for the issuance of the Orders, irrespective of the transmission method to the Company or to SwissBorg Invest SA. You acknowledge and agree that the possible delays of unforeseeable duration which may occur, depending on the transmission method, between the moment you issue the Order and the moment the Company receives it shall not be the responsibility of SwissBorg Invest SA. The Company shall not be liable for any such delay provided it has not accepted the Order according to the conditions set out in this Agreement.
4.5. SwissBorg Invest SA reserves the right, at any time, to stop the Execution of an Order sent by you. In such cases, SwissBorg Invest SA or the Company shall inform you as soon as possible. SwissBorg Invest SA or the Company shall not be liable for any such refusal.
4.6. Upon receipt of your Orders and provided they are valid and lawful, SwissBorg Invest SA shall promptly process the Order subsequent to sending you a confirmation of a receipt of the Order.
4.7. You warrant and accept that the transmission of an Order does not guarantee that it shall be Executed by the Company.
4.8. If an Order cannot be transmitted to SwissBorg Invest SA or to the Company through the Execution Interface, SwissBorg Invest SA or to the Company shall inform you as soon as possible. Orders which cannot be transmitted through the Execution Interface shall be considered to have expired. You shall, in such an event, be responsible for issuing a new Order in the event that an Order cannot be transmitted.
4.9. Provided the Order has been transmitted in a timely manner to the Company by SwissBorg Invest SA, you hereby discharge SwissBorg Invest SA and waive any claim against SwissBorg Invest SA for any execution of your Orders.
5. Receipt and Transmission of Orders (Yield Wallet)
5.1. Orders given by you to transfer out your Virtual Currencies into the Yield Wallet are transmitted directly through the SwissBorg Wealth App according to the specifications provided in this Agreement and subject to the identification and verification following the KYC Process for onboarding onto the SwissBorg Wealth App.
5.2. You may use your Yield Wallet(s) to collect the yields from the Yield Program(s) to which you wish to participate.
5.3. Any Order to transfer out Virtual Currencies to Yield Wallet interfaced with the App and operated by third-party Yield Program Gateway(s) received by the Company containing your details is considered to be given by you.
5.4. You shall be solely liable for the issuance of the Orders to transfer out your Virtual Currencies into the Yield Wallet through the SwissBorg Wealth App.
5.5. You acknowledge and agree that possible delays of unforeseeable duration may occur between the moment you issue the Order and the Execution of the Order. Neither SwissBorg Invest SA nor the Company shall not be liable for any such delay provided it has not accepted to transmit the Order to the Yield Wallet according to the conditions set out in this Agreement.
5.6 SwissBorg Invest SA and the Company both reserve the right, at any time, not to execute an Order sent by you. In such cases, SwissBorg Invest SA or the Company shall inform you as soon as possible. SwissBorg Invest SA or Company shall not be held liable for any such refusal.
5.7. Upon receipt and provided the Order is valid, the Company will execute the Order and send your Virtual Currencies to the Yield Wallet interfaced with the SwissBorg Wealth App and operated by Yield Program Gateway(s) and will send you a confirmation of the transmission of the Order.
5.8. You warrant and accept that the transmission of an Order by SwissBorg Invest SA to the Company does not guarantee that your Virtual Currencies will be accepted by the Yield Program Gateway(s).
5.9. If an Order cannot be executed or your Virtual Currencies are not accepted by the Yield Program Gateway(s), you will be informed as soon as possible by the Company or SwissBorg Invest SA. Orders which cannot be Executed shall be considered to have expired. You shall, in such an event, be responsible for issuing a new Order in the event that an Order cannot be Executed.
6.1. You hereby accept that the Fiat Custodian shall hold your Fiat Assets on the Company’s account, but in a segregated way and for a maximum of sixty (60) days. No interest will be paid on the Fiat Assets held by the Company on your behalf.
6.2. You have been duly informed that neither SwissBorg Invest SA nor the Company fall under FINMA’s supervision.
6.3. By accepting this Agreement, Swiss Users hereby give SwissBorg Invest SA a mandate to access your Virtual Currency Wallet in order to, on the basis of your Orders given through the SwissBorg Wealth App, transfer out your Virtual Currencies to the Yield Wallet interfaced with the SwissBorg Wealth App and operated by Yield Program Gateway(s).
6.4. By accepting this Agreement, Swiss Users hereby give SwissBorg Invest SA a mandate to access your Fiat Wallet and/or your Virtual Currency Wallet and use your Assets held by Virtual Currencies Custodian and/or Fiat Currency Custodian solely for the purpose of the Execution of your Orders placed through the Execution Interface.
6.5. YOU UNDERSTAND AND AGREE THAT YOU WILL PARTICIPATE TO THE YIELD PROGRAMS AND/OR EXCHANGE ASSETS AT YOUR SOLE RISK AND THAT THE COMPANY DOES NOT RECOMMEND NOR ADVISE ANY SPECIFIC YIELD PROGRAM.
7.1. The Company is limited to executing the Orders which allow Assets to be sent to Yield Programs wallets/smart contracts on an “Execution-only” basis.
7.2. The Execution Interface allows the Execution of Order(s) directly on Exchanges. By clicking “Confirm Exchange”, you are instructing SwissBorg Invest SA to order the Company to (i) use the Fiat Assets and/or Virtual Currencies available on your Fiat Wallet or Virtual Currency Wallet which are held at a Fiat Custodian and/or Virtual Currency Custodian on your behalf by the Company and (ii) to carry out the Execution of Orders.
7.3. You consent that by making use of the SwissBorg Wealth App and the Execution Interface, you are instructing SwissBorg Invest SA to carry out the Execution of Orders on a best possible result basis from the Exchanges which are interfaced with the Execution Interface.
7.4. By placing Orders through the SwissBorg Wealth App, you instruct the Company to transfer out your Virtual Currencies into the Yield Wallet operated by third party Yield Program Gateway(s).
7.5. You warrant and accept that the Yield Program(s) are solely responsible for any results and yields which are expected from the Users subsequent to the Execution of their Orders.
8. Transaction Fees
8.1. You authorize SwissBorg Invest SA to instruct the Company to deduct from the User Account any of the Transaction Fees unless otherwise agreed in writing.
8.2. This Transaction Fees take into account any benefits, particularly in the form of commissions or other services that are engaged by the Company and/or SwissBorg Invest SA when Executing the Orders.
8.3. The Company may modify the Transaction Fees at any time. You shall be informed of such modifications through an electronic mail which you would have provided during the KYC Process or at a later stage if you updated your personal details.
8.4. You acknowledge and accept that this arrangement deviates from the statutory right to claim for restitution according to art. 400 para. 1 of the Swiss Code of Obligations and/or any other statutory provision with similar content.
9. Performance Fees
9.1. Any fees will be charged directly from your Yield Wallet based on the basis of the performance of the Yield Programs, provided they are clearly disclosed to the Users (“Performance Fees”).
9.2. You shall be informed of any modification to the Performance Fees through an electronic mail on your email address which you would have provided during the KYC Process.
10. Limitation of Liability
PROVIDED YOUR ORDERS ARE EXECUTED BY THE COMPANY WITHOUT FRAUD OR GROSS NEGLIGENCE, NEITHER THE COMPANY, NOR SWISSBORG INVEST SA NOR THEIR DIRECTORS, EMPLOYEES OR CONTRACTORS, CAN BE HELD LIABLE IN ANY WAY AS A RESULT OF THE YIELD WALLETS, YIELD PROGRAM GATEWAYS, YIELD PROGRAMS OR OF THE ORDERS TO SEND YOUR VIRTUAL CURRENCIES TO THE YIELD PROGRAMS.
You warrant and accept that you have understood the extent of your responsibility in relation to Execution of the Orders for sending Virtual Currencies into the Yield Programs, including the limitations thereto.
You hereby acknowledge that you have read and understood the contents of this Agreement and the SwissBorg Wealth App Terms and you hereby understand and accept to enter into this Agreement with SwissBorg Invest SA on the basis of this Agreement.
You acknowledge and accept that you have been informed about the risks related to the Orders that you can instruct SwissBorg Invest SA to Execute on your behalf and about the risks related to the use of the Yield Wallet in accordance with terms of service of the Yield ProgramGateway(s).
You acknowledge that SwissBorg Invest SA shall not be required to inform you on the specific risks related to your Assets which are available for the Transaction as you have been informed in the Wealth App Terms already. You acknowledge and accept that the risks disclosed in the Wealth App Terms are also applicable to this Execution-Only Mandate Agreement.
SwissBorg Invest SA does not provide any tax or legal advice and cannot guarantee that investment decisions take account of your personal tax situation and you are responsible for seeking information from an independent tax advisor before making use of the Services.
You are responsible for seeking information from an independent tax advisor before making use of the Yield Programs.
SwissBorg Invest SA reserves the right to unilaterally and at its sole discretion make any changes to this Agreement. The amendment shall be published either on the SwissBorg Wealth App, notified to you on the SwissBorg Wealth App and/or shall be sent by electronic mail to the address which you provide during the KYC Process. You shall accept any amendment before being able to continue using the SwissBorg Wealth App. Any Order placed after the amendment will require prior acceptance of the amended Agreement.
15.1. SwissBorg Invest SA and/or you shall be entitled to terminate this Agreement at any time, with immediate effect (Art. 404 SCO). The deletion or termination of a User Account shall result in an automatic termination of this Agreement with immediate effect.
15.2. You accept and consent that SwissBorg Invest SA may, at its sole discretion, retain your Assets and set them off against any claim of SwissBorg Invest SA. Entity for damages and you agree to fully indemnify SwissBorg Invest SA for any damages incurred if the Services are terminated due to any wrongdoing committed by you.
15.3. The deletion or termination of a User Account shall result in an automatic termination of this Agreement with immediate effect. The termination of this Agreement shall result in the automatic termination of your use of the Yield Wallet. In such an event, you shall be solely responsible to recover your Virtual Currencies you transfer out to the Yield Wallet.
15.4. You accept and consent that the Company may, at its sole discretion, retain your Assets and set them off against any claim for damages which may arise from any wrongdoing or damages caused by you and you agree to fully indemnify SwissBorg Invest SA for any damages incurred if this Agreement is terminated due to any breach or wrongdoing committed by you.
You expressly consent that, by ticking the acceptance box, this shall equal to a written form approval of this Agreement.
17. Applicable Law
The interpretation and enforcement of this Agreement will be governed by, construed and enforced in accordance with the laws of Switzerland, without regard to conflict of law rules and principles that would cause the application of the laws of any other jurisdiction. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the Courts of Lausanne, Switzerland.