SwissBorg App Terms of Use

The Services provided under these Terms merely consist in Executing Orders and there is no obligation to verify whether the Order is adequate and/or appropriate. You acknowledge and agree to the absence of such verification, and that it will not be reminded at the occasion of each Order placed.

Disclaimer: Trading with Digital Assets carries a high degree of risk. It is not suitable for everyone. Please do your own research or consult professional advice before making a trading decision. Do not trade with money that you cannot afford to lose. 

These Terms provide you with information about the risks associated with Digital Assets, in which you may invest, through services provided to you by the Company (as this term is defined below).  

Users will not benefit from the protections available to clients receiving regulated investment services. Users however benefit from the rules relating to best execution of Orders.  

Digital Assets carry a high degree of risk and are not suitable for many investors. These Terms provide you about the risks associated with Digital Assets, but it cannot explain all of the risks nor how such risks relate to your personal circumstances. If you are in doubt, you should seek professional advice. It is important that you fully understand the risks involved before deciding to use the App, that you have adequate financial resources to bear such risks and that you monitor your positions carefully. Trading involves risk to your capital. You should not invest funds that you cannot afford to lose

THIS IS AN IMPORTANT DOCUMENT.

PLEASE READ IT CAREFULLY.

This document contains the terms and conditions governing your use of the App. When installing the App, you are invited to agree with these terms and conditions. You should therefore take the time to read this document carefully and thoroughly.

IMPORTANT NOTICE

PRIOR TO ACCESSING, PURCHASING OR USING THE APP, YOU MUST INFORM YOURSELF OF AND OBSERVE ANY REGULATIONS APPLICABLE TO YOU.

 ACCESSING, PURCHASING OR USING THE APP MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS AND ACTIVITIES UNDERTAKEN THROUGH THE APP MAY BE SUBJECT TO SPECIFIC REGULATIONS OR REVIEW BY CERTAIN AUTHORITIES. 

A FAILURE TO COMPLY THEREWITH MAY RESULT IN SANCTIONS AS PROVIDED FOR IN THE CONCERNED REGULATIONS.  

TERRITORIAL LIMITATION

SUBSCRIBING DIGITAL ASSETS TO THE YIELD SERVICES AND/OR PROTOCOLS IS DONE AS INSTRUCTED BY THE USER AND IS THE SOLE RESPONSIBILITY  OF THE USER WHO SHALL SEEK PRIOR ADVICE AND INFORMATION ABOUT THE RISKS OF SUCH A TRANSFER.

DUE TO REGULATORY REASONS, SWISSBORG SOLUTIONS OÜ DOES NOT TARGET RESIDENTS OF THE FEDERAL REPUBLIC OF GERMANY FOR THE PROVISION OF ITS SERVICES.

THE APP IS NOT AVAILABLE FOR US, RUSSIAN AND CHINESE PERSONS. 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), OR CHINESE CITIZENS OR RUSSIAN CITIZENS.

1. DEFINITIONS

For the purpose of these Terms, the capitalized terms are defined in Annex 1. 

2.TERMS

2.1. Legal agreement

Upon download of the App from the Google Play Store or the Apple Store, you are invited to agree to these Terms of Use and any terms expressly incorporated herein, including the Privacy Notice (hereafter, the “Terms”) before completing the registration process.  

These Terms and any terms and conditions constituting a supplement to or complementing these Terms apply to your access to and use of the App and Services provided by and/or made accessible by your counterparty to these Terms, as this counterparty is defined below in accordance with the User's country of residency (hereafter, the “Company”, “SwissBorg”, “We” and/or “we”, “Us” and/or “us” and “Our” and/or “our”).

Your counterparty to these Terms and any terms and conditions constituting a supplement to or complementing these Terms is as follows:

2.1.1. If you reside in a country member of the European Economic Area, Switzerland or the United Kingdom: SwissBorg Solutions OÜ, a company duly incorporated and existing under the laws of Estonia, bearing company registration number 14769371, with registered address at Pärnu mnt. 12, 10148 Tallinn, Estonia. 

2.1.2. If you reside in any another country not set forth in sub-point 2.1.1 above: Dharma Ltd, a company duly incorporated and existing under the laws of the Seychelles, with a registered office at House of Francis, Ile Du Port, Mahe, Seychelles.

The Company operates the App and the Execution Interface, acting as a technological provider.

The Company Executes Orders placed through the Execution Interface on an Execution-Only basis. At this occasion, it does not operate an exchange or a trading facility, act as a bank, as a securities firm or as a broker or dealer, and it does under no circumstances provide investment, tax, or legal advice to its Users.

You understand that the Company allows Users to access the Yield Services interfaced with the App directly through the App. For this purpose, the Company acts exclusively as a technology provider and solely executes your Orders.  Subscribing Digital Assets to the Yield Services in order to generate Yield through third-party Protocols is at your sole risk and under your sole liability, including in the event of default or lack of liquidity of such third-party Protocols.

SwissBorg Solutions OÜ currently operates under the digital asset service licence number FVT000326 in Estonia and under the digital assets services provider registration number E2022-034 in France. The Company does not provide payment services of any kind. Any payment services, including the provision of Fiat Wallets, are provided through the Company’s relationships with specialist  licensed financial institutions, electronic money institutions and/or payment service providers that the Company has engaged specifically for this purpose. 

When you click on "I agree with the Terms of Use and the Privacy Notice", these Terms become a legal agreement between you and the Company, on condition that you pass the applicable KYC/AML procedures. In case of a change in your country of residence that impacts your counterparty to these Terms, the conclusion of a legal agreement with that counterparty shall also be conditional upon you passing the applicable KYC/AML procedures. You further consent that the Digital Assets in your User Account may be partially or fully transferred to SwissBorg’s Exchange Accounts at any given time, in order to facilitate the execution of your Orders in accordance with these Terms. 

By registering as a User, you represent and warrant 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 the App and the Services is a breach of these Terms.

You represent and warrant that registering as a User, using the App and benefiting from the Services are not actions prohibited or otherwise in violation of the laws and regulations of the country, state, province, or other jurisdiction in which you reside or of which you are a citizen. You agree to cease using the App and the Services should these actions become prohibited or otherwise in violation of the laws and regulations after your registration as a User.

By clicking the "I agree with the Terms of Use and the Privacy Notice" button, you confirm that your knowledge of English is sufficient to understand the meaning of the Terms and the Privacy Notice. You hereby consent to enter into an agreement in the English language even where this language is not your primary one and that you will not hold the Company liable for any losses or damages resulting from a misunderstanding of the Terms and/or the Privacy Notice, originating in your linguistic limitations. 

By clicking the "I agree with the Terms of Use and the Privacy Notice" button when registering a User Account, by subsequently using the App and benefitting from the Services, you acknowledge that you have read, understood and agreed to be bound and comply with these Terms and the Privacy Notice in their latest version, as they may be amended from time to time by the Company. If you do not agree with these Terms and/or the Privacy Notice, you should refrain from using the App and/or benefiting from the Services. 

2.2. Scope

These Terms govern your access to and use of the App and of the Services. 

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.

The browsing of the Website available at the following URL www.swissborg.com is governed by distinct terms of use available at the following URL: https://swissborg.com/legal/terms-of-use. 

The Personal Data collected on or through the App shall be processed in accordance with the Privacy Notice, which can be found on the App. 

In case of any discrepancy or ambiguity between these Terms, any other terms and conditions, and/or the Privacy Notice, these Terms shall prevail over all other documents related thereto.

3.USER ACCOUNT

3.1. Registration

Registration process 

You need to register as a User to access the App and benefit from the Services. At the outcome of the registration process, you become a User and gain access to the App and the Services.

Through the registration process, you need to provide the following Personal data: Full legal name; E-mail address; Phone number; Place of residence; Answers to the questions related to the basic Suitability Process; All Personal data required to complete the KYC Process. The use of temporary email or phone numbers as well as of phone numbers attributed to prepaid cards is strictly prohibited for the creation of a User Account.

Through the registration process, or later, you will be requested to provide certain information pursuant to our Compliance Policies and applicable law, including, if necessary, information that will enable us to report to the relevant authorities where we are required to do under applicable law. If you fail to reply promptly to any request from us, or if your responses are unsatisfactory, we may close or suspend your User Account and/or you may be unable to use the Services.

Obligation to provide reliable data. 

You agree to provide true, accurate, actual and complete information when opening a User Account, and you further agree to maintain and promptly update the information you have provided  to ensure it remains true, accurate, actual and complete at all times while you are a User. 

You authorize the Company to use any Personal data or information provided in registering to verify your identity (including any updated information). 

You authorize the Company, or a third-party service provider, to take any measures deemed necessary to verify and authenticate your identity, confirm the information you submit and to take any action we deem necessary based on the results of our investigations.

If you provide any information that is, or that we have reasonable grounds to suspect to be inaccurate, misleading, outdated or incomplete, we reserve the right to, in our sole and absolute discretion, but subject to applicable laws, block access to or to suspend, close or terminate your User Account, refuse to let you purchase or withdraw Digital Assets and/or Fiat Assets, and freeze Digital Assets and/or Fiat Assets or your User Account, at any time, with or without advance notice. 

The same measures can be undertaken should you fail to notify the Company of changes to your Personal data immediately. 

To the fullest extent permitted by law, we shall not be liable to make any compensation, monetary or otherwise, following such suspension, freeze, termination or inability to use your User Account. 

You are responsible for any fees that we incur with respect to your User Account as a result of any of the foregoing. Such fees will be charged as Service Fees. 

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.

Registration effects

By registering on the App you agree to: a. The content of these Terms and the Privacy Notice;

b. Review and understand the Company’s AML Policy;

c. Provide true, accurate, actual and complete Personal data as requested in the KYC Process; 

d. Maintain and promptly update the Personal data and any other information you provide to the Company, and to keep such information accurate, actual and complete; 

e. Maintain the confidentiality of your passcode and other information related to the security of your User Account;

f. Be fully responsible for all use of your User Account and for any action that takes place through your User Account; 

g. Not impersonate anybody by opening a false User Account;

h. Not use robots, scrappers or other tools to open Accounts or extract Personal data or information from the App.

Registration refusal

The Company reserves the right to reject any registration and to refuse Services to anyone for any reason, at its sole and absolute discretion, and without any obligation to indemnify the concerned person or User. 

In the event that the Company does not accept you as a User and/or should you fail to provide with KYC information required by the Company to onboard you as a User, the Digital Assets and/or Fiat Assets sent to your Wallet(s) will be sent back to the bank account or the public address from which they originate or in the case this address doesn't support funds back, a new one given by the User. All fees applicable to such transfer (including but not limited to Service Fees, bank fees for Fiat Assets or network fees for Digital Assets) will be charged to you as a liability towards the Company which will be set-off and withdrawn from your Digital Assets and/or Fiat Assets.

3.2. Account access 

In order to log into your User Account, you will be required to enter your login ID or password and comply with such other security protocols as we may implement from time to time (the “Security Procedures”). In some cases, in our sole discretion, we may require additional verbal or electronic confirmation of a transaction prior to processing such a transaction.

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.

YOU ARE RESPONSIBLE FOR ANY AND ALL ACTIVITIES CONDUCTED THROUGH YOUR USER ACCOUNT, NOTWITHSTANDING THAT SUCH ACTIVITIES WERE NOT AUTHORIZED BY YOU. 

You are solely responsible for maintaining the security and confidentiality of your login ID, password and Paper Key. You agree to notify us immediately of any unauthorized use of your login ID, password or Paper Key as well as of any other breach of security. Should you use the Paper Key to access your Account or change your User information related to your Account, the Company or its Related Entities reserve the right to freeze withdrawals of your Digital Assets and/or Fiat Assets during a period of  up to seventy two (72) hours in order to be able to proceed to the necessary verifications of your identity. 

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 Digital Assets and/or Fiat Assets held in your Wallet(s), including but not limited to your linked Bank Account or Bank Card.

PLEASE NOTE THAT WE WILL NEVER ASK YOU, FOR ANY REASON, WHETHER BY EMAIL, REGULAR MAIL OR TELEPHONE, TO DISCLOSE YOUR USER ACCOUNT PASSWORD OR PAPER KEY. WE WILL NEVER SEND YOU EMBEDDED LINKS IN AN EMAIL REQUESTING THAT YOU SIGN ONTO THE APP BY CLICKING SUCH A LINK. IF YOU RECEIVE AN EMBEDDED LINK BY EMAIL CLAIMING TO BE FROM US, YOU SHOULD NOT OPEN IT OR CLICK ON THE LINK. THE EMAIL IS NOT FROM US AND IS LIKELY FRAUDULENT AND/OR A PHISHING ATTEMPT. NEVER GIVE YOUR USER ACCOUNT PASSWORD TO ANYONE WHOM YOU DO NOT INTEND TO AUTHORIZE TO USE YOUR USER ACCOUNT.

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 Digital Assets and/or Fiat Assets held in your Wallet(s), including but not limited to your linked Bank Account or Bank Card. You hereby agree to consider your access credentials as confidential information, and you understand to not disclose such information to a third party.

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.

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. SwissBorg is entitled at any time and at its sole discretion to deactivate the Paper Key or the recovery procedure in the event of fraud or risks for the Users’ Digital Assets and/or Fiat Assets.

You may not transfer, lease, assign or sell your User Account (or any use thereof) to a third party without the consent of SwissBorg. In addition, you may not grant any person access to your User Account by communicating your password or your Paper Key.  If, as permitted by us, you grant express permission to a third party to access or connect to your User Account or if you communicate your password or Paper Key to any third party, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under these Terms. You are fully responsible for all acts or omissions of any third party with access to your User Account and any action of such third party shall be considered to be an action authorised by you. Further, you acknowledge and agree that you will not hold the Company responsible for, and will indemnify Us from, any liability arising out of or related to any act or omission of any third party.

By using the Services, you agree that the Security Procedures are used to verify the authenticity of your information, Orders or other instructions, but not to detect errors in any order or other instruction you transmit or to avoid any misrepresentation. You agree that we may update or amend the Security Procedures at any time. We shall endeavour to inform you of any such updates or amendments by email with sufficient advance notice.

While we do not have any obligation to monitor your activity on the App, we may implement certain monitoring procedures designed to alert us to fraudulent activity. We are however not responsible for any unauthorized use of your User Account and, to the fullest extent permitted by applicable law, we will not be liable for any loss that you may incur as a result of someone accessing your User Account, either with or without your knowledge. To the fullest extent permitted by law, we disclaim any and all liability arising from fraudulent entry and use of your User Account or of the Services (including, but not limited to, liabilities arising from unauthorized activity undertaken through your User Account). If someone fraudulently obtains access to your User Account, we will take such action as we determine to be warranted, including without limitation, terminating your access, freezing your User Account (including deposits, exchange capability and withdrawals) and/or membership immediately, closing the User Account, and taking all necessary and appropriate actions under applicable laws.

3.3. Type of Account 

Standard Account 

Upon registration, the User holds by default a Standard Account. 

Premium Account. 

You can choose to upgrade your Standard Account to one of the Premium Accounts as listed below by Locking a balance of BORG for a period of twelve (12) months.  

Users Locking their BORG Tokens within the parameters required at any given time (as decided by the Company in its sole and absolute discretion) and, as displayed in the premium section of the App and/or the Website, shall automatically become Premium Users and shall thereby receive additional benefits, as listed in the premium sections of the App and/or the Website. In the event a Premium User redeems the Locked BORG, the status of Premium User and the benefits attached thereto will be immediately suspended and may only be recovered by Locking the required amount of BORG again.

• Explorer Premium Account. 
• Community Premium Account.
• Pioneer Premium Account.
• Generation Premium Account. 
• Genesis Premium Account. Current Genesis Premium Users get additional advantages as displayed in the premium sections of the App. As from February 1st, 2022, access to Genesis Premium Accounts will not be available. In the event an actual Genesis Premium User redeems the Locked BORG, his/her/their status of Genesis Premium User and the benefits attached thereto will be immediately suspended and may not be recovered. .

Upgrading to a Premium Account. Standard Account Users who increase the amount of Locked BORG to the required amount, as specified in the premium section of the App, automatically become Premium Users. In the event a User redeems the Locked BORG, the status of Premium User and the benefits attached thereto are lost altogether. ICO contributors will benefit from the possibility to get Premium Accounts by Locking ten percent (10%) of the BORG required for the Premium Accounts,.

It is only possible to redeem the Locked BORG after the expiry of a period of twelve (12) months. In the event of an upgrade, the period of twelve (12) months is computed as from the day of the upgrade.

After the period of twelve (12) months, the BORG remain automatically Locked, and the Account remains a Premium Account, until you choose to redeem the Locked BORG. 

The amount of BORG to be Locked in order to become a Premium Account may vary over time, at the Company’s sole discretion. The amount of BORG to be Locked for becoming a Premium User is specified in the premium section of the App. Any changes to the number of BORG to be Locked will only affect new Locking or Locking extending beyond the period of twelve (12) months. The Company will not oblige Premium Users to increase or decrease the amount of Locked BORG depending on its price volatility over the initial twelve (12) month period. Any change in the number of BORGs to be locked will be notified to Users.

You understand and agree that the Locked BORG stay in your BORG Wallet and are locked for a period of twelve (12) months. Therefore, you understand and agree that you will not be able to place Orders or withdraw them for a period of twelve (12) months. The Company will not send the Locked BORG to any other address controlled by the Company or any Related Entity. The Company does not have the right to use the Locked BORG for its own purposes.

You understand and agree that while the Locked BORG are locked in your BORGWallet, you will not be able to place Orders using the Locked BORG. As you choose to Lock, the Company is not liable towards you for any loss incurred or unrealised gains resulting from the operational unavailability of the Locked BORG. 

4.THE APP

Users access Services through the App. The App is not an exchange (centralized or decentralized), nor an organized or multilateral trading facility or a trading venue.

The Execution Interface allows you to directly access the market of Digital Assets and to place Orders on an “Execution-Only” basis. 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 interfaced.

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 is programmed to calculate the best possible Transaction Price for each Order. As operator of the Execution Interface, the Company does not guarantee the best possible Transaction Price for each Order. The latter is computed by the Execution Interface on a best effort basis.

5.FUNDS ON ACCOUNT

5.1. Digital Assets or Fiat Assets which are placed in the App and  held in Wallets remain the property of the User. Whenever a User’s Fiat Assets and/or Digital Assets are redirected by the Execution Interface to an Exchange Account, the User understands there is a risk that these Fiat Assets and/or Digital Assets 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 Digital Assets towards accounts on Exchange Accounts which shall be solely used for executing the Transaction before delivering the Fiat Assets and/or Digital Assets 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.

5.2. Before transferring Fiat Assets, which will appear on your User Account, you will be required to designate a payment method between (i) transfer via Bank Account and (ii) Bank Card (hereinafter referred to as the “Designated Payment Method”).

5.3. Bank Accounts and Bank Cards can only be used by the person under whose name they are registered. The Company or the Fiat Custodian reserves the right to, including but not limited to, suspend, freeze or cancel your User Account if the name of the User Account and the name of the corresponding Bank Account or Bank Card do not correspond to each other. 

5.4. The Bank Account or Bank Card used to transfer Fiat Assets needs to be issued and managed by a regulated and licensed financial institution or e-money institution. Bank Card transactions are processed via SwissBorg Solutions OÜ's licensed and regulated Third Party Service Provider.

5.5. Each attempted execution of a transfer of Fiat Assets by Bank Card is subject to Deposit Fees. Funding by Bank Card is, in addition to the terms and conditions set forth herein, subject to any applicable terms and conditions set forth in your Bank Card agreement, which may include fees charged by your Bank Card in conjunction with such funding.

5.6. You agree that we reserve the right to set, increase and/or decrease the minimum and maximum amounts that can be transferred to your User Account through a Bank Card, in our sole discretion and without notice, at any time.

5.7. Bank Card transactions are executed immediately; however, we reserve the right, during a period of no less than thirty (30) calendar days (“Initial Lock-up”) as from a User completing the KYC Procedures, to hold and to prevent Withdrawal or Smart Send (where applicable) of Fiat Assets in the amount of the Bank Card transaction and/or the equivalent amount in Digital Assets sufficient to cover these funds and to cover potential fluctuations of the price of such Digital Assets based on the Company’s assessment, which may hence exceed the amount of funds from the Bank Card transaction, until they are considered settled (“Lock-up”).

5.8. After the expiration of the Initial Lock-up Period, any Bank Card top ups performed by Users holding a Standard Account shall be subject to a ten (10) day Lock-Up (“Additional Lock-up”). To the extent applicable, the number of days during which Fiat Assets have been subject to the Initial Lock-up shall be deducted from the Additional Lock-up.

5.9. The Company may change the duration of the Initial Lock-up and/or Additional Lock-up  at any time in its sole and absolute discretion, with or without notice. The Additional Lock-up shall not apply to Users holding a Premium Account status. Once your Bank Card transaction is considered settled, you will be able to Withdraw any such Fiat Asset or Digital Asset. You agree that in certain circumstances, Bank Card transaction settlement times may be delayed in connection with Downtime or disruptions of Third-Party Service Providers. The Company will not be liable to you for any losses, fees or charges in connection with the use of the Bank Card as a Designated Payment Method.

5.10. If you use a Bank Card as a Designated Payment Method, you declare that you will not exercise the right to claim funds back (a “Chargeback”) other than for unauthorised use by a third-party of your Bank Card or as otherwise explicitly permitted by applicable law. Otherwise, refunds will not be given for any other purpose, including reasons for which the Company is not responsible and your User Account will be terminated.

5.11. 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 for using the Designated Payment Method, and any extra charges, should they arise and be supported by Us;

c. You give Us the order to store your Fiat Assets in your Fiat Wallet.

5.12. 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.

5.13. 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.

5.14. 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.

5.15. 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 5 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 5 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.

5.16. The User’s Digital Assets are stored on a Digital Asset Wallet which is based on distributed ledger technology. The User’s Digital Assets are sent from an External Wallet to a Digital Asset Wallet provided by the Company, attributable at any time to the Users.

5.17. Unsupported Digital Assets. 

If the Digital Assets are not supported or available on the App, you will not be able to transfer these Digital Assets to your Digital Asset Wallet. If you, however, send Digital Assets to a Digital Asset Wallet that does not support that specific Digital Asset then You take all responsibility for all the losses that might occur by doing so. The Company reserves its right to refund to the User, at its sole discretion, and with additional charges to the User, the Digital Assets that might have been lost during such transfer. 

5.18.   Tradable Digital Assets

Certain unsupported Digital Assets can however be used in the App, to an extent solely determined by us (the “Tradable Digital Assets”). Tradable Digital Assets cannot be transferred to or from an external Digital Asset Wallet. However, you can place Orders through the Execution Interface within the App for the Company to Execute Transactions on Exchanges. Having been purchased through the Execution Interface within the App, Tradable Digital Assets can only be sold or converted into any supported Digital Asset or other Tradable Digital Asset. Tradable Digital Assets are stored on Digital Asset Wallets controlled by Third-Party Exchanges acting as Digital Assets custodians. You hereby agree and understand that contrary to the supported Digital Assets, Tradable Digital Assets will not be stored on a Wallet controlled by the Company which may result in an increased security risk.

5.19. By transferring or Withdrawing Digital Assets, You represent and warrant Us that:

a. You are the owner of /or are authorised to use the External Wallet from which you are transferring or to which you are Withdrawing  these Digital Assets; 

b. You give us the order to store your Digital Assets in your User Account.

5.20. 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 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. 

5.21. The Company may store the User’s Digital Asset by using a combination of hot and cold storage for the purposes of security reasons. You hereby agree and consent that the Company can place your Digital Assets in a hot or cold storage solution. You acknowledge and understand that in the event of bankruptcy of the Company, your Digital Assets will be separated from the bankruptcy estate of the Company and may be transferred to another interoperable storage solution which shall allow for the storage of your Digital Asset.

5.22. The Company retains the right, in its sole discretion, to determine whether to support or allow Transactions related to any Digital Asset. The Company may discontinue or terminate any support for any Digital Asset 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 Digital Asset on the App. 

5.23. If the Company ceases to support the transfer of a particular Digital Asset, the Company will use commercially reasonable efforts to notify you prior so as to allow you with an opportunity to transfer the affected Digital Asset from your User Account to an External Wallet or to Withdraw the Digital Asset. 

5.24. If You do not Withdraw your Digital Assets out of your User Account prior to cessation of support for the said Digital Asset by the Company, the Digital 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 Digital Asset.

5.25. You hereby represent and warrant that you have sole control over any External Wallet to which you send Digital Assets from your User Account. The Company gives no assurance or warranty that any Digital Asset 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.

5.26. FORKS AND AIRDROPS 

5.26.1. The underlying Protocols of the Digital Asset networks available on the App may be subject to forks. You hereby acknowledge and understand that the occurrence of a network fork may negatively impact the value, liquidity and functionality of the initial Digital Asset. 

5.26.2. Network forks, Digital Assets airdrops and any similar distributions from a third-party are outside of the Company’s control. The Company has no obligation to support any particular fork, airdrop or similar distribution nor any Digital Asset resulting from such events and retains sole discretion in doing so, such support remaining, in all instances, subject to these Terms. The Company may, in its sole discretion, decide to stop supporting the initial Digital Asset subject to such fork, airdrop or similar distribution. The Company may, but has no obligation to do so, carry out airdrops on behalf of Users. In such an event, the airdropped Digital Assets will be credited to the Users, minus a Service Fee charged by the Company.

6. THE SERVICES

6.1. The User engages the Company to provide the App, the Digital Asset Wallets, to procure the provision of the Fiat Wallets and to Execute Orders placed through the App for buying and selling Digital Assets on Exchanges on his/her behalf through the Execution Interface, subject to the terms of the relevant Exchange. The acceptance and transmission of Orders is solely on an execution-only basis. Orders are only accepted if placed on or through the App. SwissBorg is under no obligation to Execute Orders placed by other means (telephone, email or other electronic communication).

6.2. Through the App, the Company allows you to place Digital Assets and/or Fiat Assets in your Wallet. Users confirm they understand that SwissBorg is not offering any financial instrument or investment advice through the operation of the App. The Fiat Assets shall appear on your Fiat Wallet and the Digital Assets shall appear on your Digital Assets Wallet within your User Account.

6.3. You can place Orders through the Execution Interface within the App for the Company to Execute any of the Transactions on Exchanges and/or to subscribe any Digital Asset into the Yield Services 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 and to pay the Service Fees related thereto.

6.4. By clicking “Confirm Exchange”, you are giving an Order to the Company to use any of the Digital Assets and/or Fiat Assets placed in the Digital Asset Wallet and/or with 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 Agreement. With regards to Swiss Users, SwissBorg Invest SA receives and transmits the Orders to SwissBorg Solutions OÜ who shall Execute the Orders on an execution-only basis.

6.5. The Execution Interface will allow the Company to Execute the Orders 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.

6.6. 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. 

6.6.1. We hereby declare that the Company will at all times be able to attribute Users’ Fiat Assets through its records within a ledger.

6.6.2. You hereby acknowledge and consent that you shall send the Fiat Assets directly to an 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 based on your Orders (Execution-only). 

6.6.3. You are informed that through the operation of the App, the Company does not engage in any banking or payment services 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 and the Wallets are provided solely for the purpose of Executing Orders within the App or the Execution Interface. 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 based on those Fiat Assets.

6.6.4. You understand that there are countries where Fiat Assets are not supported within the App unless you are subject to additional agreements. If you are a User located 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.

6.6.5. You hereby understand and agree that there may be some delays or lags when you transfer Fiat Assets to the Fiat Wallet due to the processing of your orders by your bank and by the Company’s bank. You shall indicate the reference number indicated on the App when transferring Fiat Assets, if a reference number is required.  Failing so or indicating a wrong reference number may lead to additional delays or lags. The Company reserves the right to charge additional Service Fees in the event no reference number is indicated in your order and shall in no event be responsible for losses or gains missed as a result of the delays or lags in processing your Fiat Assets orders. The Company cannot be held responsible for any damage (loss or unrealised gains) incurred as a delay or lag or if the Fiat Assets are returned to the User by the Company’s bank.

6.6.6 The Company reserves the right to keep Fiat Asset equal or inferior to the banking fees charged when you Withdraw Fiat Assets from your User Account, and to the network fees charged when you Withdraw Digital Assets. 

6.6.7 The Company further reserves the right to keep Fiat Assets and/or Digital Assets equal or inferior to the withdrawal fee charged as part of the Services Fees for such Fiat Assets and/or Digital Assets. 

6.6.8 The Company reserves the right to keep Fiat Assets and/or Digital Assets returned by the User’s bank (i) if the Company cannot find out with reasonable efforts to which User such Fiat Assets and or Digital Assets shall be credited or (ii) such Fiat Assets and/or Digital Assets remain unclaimed by the User during thirty (30) days. In such occurrences and subject to compliance with AML obligations, the Fiat Assets and/or Digital Assets shall be acquired to the Company without any additional claim from the User(s).

6.7. Digital Assets Wallet. 

6.7.1. You hereby authorise, approve and direct the Company to ensure the safekeeping and controlling, on your behalf, in accordance with the Company’s Custody and Segregation Policy, available on www.swissborg.com, of the Digital Assets and means of access to such Digital Assets that you deposit or purchase on or through the App. 

6.7.2. The Company may, in its sole and absolute discretion, accept to store Digital Assets in your User Account, via a combination of individual wallets and an omnibus wallet structure, along with the Digital Assets Assets of other users of the App (the “Omnibus Wallet”). You agree that the Digital Assets that are transferred by you to the Company or acquired by the you through Orders will be treated as fungible with those Digital Assets of other users of the App that are based on the same cryptographic protocol or consensus rules of a computer network that are also held in the Omnibus Wallet by the Company on behalf of such other users. You acknowledge that your redelivery rights in respect of the Digital Assets held in your Digital Asset Wallet are not necessarily for the same Digital Assets, but rather will be in respect of an equal amount of Digital Assets that are based on the same cryptographic protocol or consensus rules of a computer network. The Company will manage all associated private keys on behalf of the User, using multiparty computation technology and advanced cryptography.

6.7.3. The Company shall on its books and records segregate all User Digital Assets from the proprietary property of the Company. The ownership of all of your Digital Assets shall be clearly recorded in the Company’s books and records as belonging to you. 

6.7.4. 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 Digital Assets in your Digital Assets Wallet. In the event that you are a User located in a country where only Digital Assets are supported, You will only have available a Digital Asset Wallet and you will be able to place Digital Assets onto the User Account only using Digital Assets until further notice. 

6.7.5. You accept that if Digital Assets are only available on your User Account, there is no possibility to use Fiat Assets. You accept that you can only Withdraw Digital Assets from your User Account for as long as Fiat Assets are not supported in the App in the country where you are located. 

6.7.6. Your Digital Assets shall appear on your User Account within your Digital Asset 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 Digital Assets to an External Wallet.

6.7.7. SwissBorg Solutions OÜ is licensed to carry out the provision of a Digital Assets services through Estonian License number FVT000326. SwissBorg Solutions OÜ is also registered under registration number E2022-034 in France to provide the services of Digital Assets custody, purchase/sale of Digital Assets for legal tender and exchange of Digital Assets for other Digital Assets.

6.7.8. You hereby acknowledge and accept that you shall send the Digital Assets directly to Digital Asset Wallet managed by the Company thereby allowing the Company to hold the Digital Assets on your behalf for the purpose of executing your Orders. You hereby give authorization to the Company to exchange your Digital Assets for the sole purpose of Executing your Orders. 

6.7.9. You hereby confirm and understand that the Company charge any fees for holding your Digital Assets. The Company shall not pay any interest to you. 

6.7.10. We hereby declare that your Digital Assets will be fully secured by the Company. You acknowledge and accept that Digital Assets 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.

6.7.11. Whenever you transfer Digital Assets using the public address provided on the App, THE PUBLIC ADDRESS MIGHT CHANGE AT ANY TIME. Therefore, whenever you want to place Digital Assets into your Digital Asset Wallet, you should be sure that the Digital Asset 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 Digital Asset to the wrong public address.

6.7.12. The Company will proceed to a chain analysis of the Digital Assets you will be sending to the App. In the event of “tainted” Digital Assets or public address(es) from which they originate, you understand and agree that the Company will be under the obligation to report your tainted public address and/or Digital Assets to the competent authorities.

6.7.13. Please note that You must send Digital Assets to an address which supports the technology and/or blockchain protocol of that specific Digital Asset. You can send to the App exclusively Digital Assets that are supported by the App. For Digital Assets that use destination tag/memo technology, both an address and a tag/memo are required when sending such Digital Assets to your User Account. If you send Digital Assets to an address that does not support that specific Digital Asset, if you send Digital Assets without a tag/memo, or with an incorrect tag/memo and/or if you send a Digital Asset that is not supported from the App, you take full responsibility for all the losses that might occur by doing so. Similarly, you should make sure that you use the public address displayed on the App. You understand and agree that sending Digital Assets to a public address on the wrong blockchain protocol may not be overcome by the Company and may lead to losing your Digital Assets. The Company cannot be held responsible for transfers of Digital Assets using wrong public addresses and/or blockchain protocols. This is the sole responsibility of the Users. The Company reserves the right to charge additional Service Fees to Users that indicate the wrong public address and/or blockchain protocol when sending Digital Assets to the public address provided on the App, should the Company decide, in its sole discretion, to try and recover these Digital Assets on the User’s behalf. 

6.7.14. At your request, We undertake to return to you without delay the Digital Assets held on your behalf or the means of access to these Digital Assets. You may request the return of the Digital Assets at any time, provided you have no outstanding orders or commitments on said Digital Assets.

6.7.15. We are not responsible for the loss of Digital Assets or the means of access to the Digital Assets held for Your Account when this loss results from an incident which is not directly attributable to Us following a fault. In the event of attributable fault on Our part, Our liability as custodian of your Digital Assets is capped at the market value in Euros at the time of the loss of the Digital Asset. Non-attributable incidents cover any event which the Company demonstrates occurred independently of the provision of the Digital Asset service concerned, or independently of its activities, and which the Company could not have avoided.

6.7.16. You hereby authorise, approve and direct the Company to vote or delegate your vote on certain blockchain network governance proposals linked to your Digital Assets while they are under the Company’s custody, where technically possible.  You further acknowledge that such voting will not result in any financial benefit for you or the Company, and will be solely for the benefit of the blockchain ecosystem as a whole.

6.8. Yield Services. On the App, you will be able to subscribe out Digital Assets to the Yield Services operated by the Company or a third party Yield Gateway. Yield Service is interfaced with and is a gateway to third-party Protocols and centralized finance platforms. The Company has no control over such Protocols or centralized finance platforms. The possibility to subscribe Digital Assets to the Yield Service is subject to acceptance of the specific Yield terms of service of the Company and/or of the Yield Gateway as the case may be. The Users will be able to place Orders through the App for the purpose of subscribing their Digital Assets to the Yield Service interfaced with the App.

Please note that the Company solely acts as a technology provider. The Yield Service is simply a gateway allowing the Users to access various third-party Protocols and centralized finance platforms serving Yield to the Users. At no point in time shall the Company be considered as being the counterparty for serving Yield to Users. 

 In the event the Company or the Yield Gateway stops operating the Yield Service, the Company will discontinue interfacing the Yield Service in the App and Users hereby understand and agree that their Digital Assets subscribed to the Yield Service shall automatically be transferred back to their Digital Asset Wallet. 

 The Company, however, reserves the right at its sole discretion to allow a transition to a new Yield Service. In the latter case, the User will be provided the Yield Service terms and conditions applicable to such a Yield Service and be invited to accept them. Upon such acceptance of the new Yield Service terms and conditions and an express Order by the User to subscribe to the new Yield Service as well as the completion of any other requirement as the case may be, the Digital Assets shall be subject to the new Yield Service terms and conditions. In the absence of such approval or of an express Order, the Digital Assets shall automatically be transferred back to the Digital Asset Wallet of the concerned User.

YOU UNDERSTAND AND AGREE THAT PROTOCOLS AND CENTRALIZED FINANCE PLATFORMS ARE OUTSIDE THE CONTROL OF THE COMPANY. THE COMPANY HAS NO CONTROL OVER THE PERFORMANCE OR NON-PERFORMANCE OF PROTOCOLS AND CENTRALIZED FINANCE PLATFORMS. THE COMPANY SOLELY ACTS AS A TECHNOLOGY PROVIDER TO INTERFACE SUCH PROTOCOLS AND CENTRALIZED FINANCE PLATFORMS WITH THE APP. THEREFORE, SUBSCRIBING YOUR DIGITAL ASSETS TO THE YIELD SERVICE IS AT YOUR SOLE RISK AND LOSSES INCURRED WILL BE SUFFERED BY YOU EXCLUSIVELY. YOU HEREBY WITHHOLD ANY CLAIM AGAINST THE COMPANY FOR LOSSES INCURRED OR UNREALISED GAINS RESULTING FROM YOUR PARTICIPATION TO  THIRD-PARTY  PROTOCOLS AND/OR CENTRALIZED FINANCE PLATFORMS. YOU SHALL READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS AND THE RISKS OF THE RELEVANT PROTOCOLS AND CENTRALIZED FINANCE PLATFORMS BEFORE SUBSCRIBING YOUR DIGITAL ASSETS TO THE YIELD SERVICE, IF ANY AND APPLICABLE. 

You understand and agree that by subscribing Digital Assets to the Yield Service, you will not be able to place Orders on such Digital Assets until you redeem them from the Yield Service.

Subject to any limitation applicable in accordance with the Yield Service terms and conditions, you can at any time redeem your Digital Assets from a Protocol and/or centralized finance platform related to the specific Digital Asset. Redemption will occur by the next pay out of Yield unless a vesting period, as defined in the applicable Yield Service terms and conditions, applies. In the event of fluctuation of value of your Digital Assets, you understand and agree that the Company will not be liable towards you for any loss of value suffered by you.

In the event Protocols and/or centralized finance platforms do not generate the expected Yield  and/or experience leaks or frauds, slippage(s), hack(s) or fork(s) and/or in the event any limitation applicable to the Digital Assets subscribed to the Yield Service in accordance with the Yield Service terms and conditions occurs, the Company reserves the right, in its sole discretion, to freeze the subscriptions to the Yield Service and/or redemption of such Digital Assets from a Protocol or centralized finance platform until the situation is stabilized. The Company shall in no event be held liable for potential losses incurred and/or gain unrealised and/or loss of value of the Digital Assets subscribed to the Yield Service in order to participate in third party Protocols or centralized finance platforms.

You understand and agree that, in the event of loss suffered to your Digital Assets and/or unrealised gains and/or loss of value of your Digital Assets subscribed to the Yield Service, the Company will be entitled, upon redemption of your Digital Assets, to reflect such losses into your Digital Asset Wallet. 

6.9. Flash Reward Program. The App allows you to subscribe to the Flash Reward Program. The Flash Reward Program is a service provided by the Company, whereby the Company transfers airdrops of Digital Assets issued by third-party entities for promotional purposes, to your Digital Asset Wallet under the conditions set below. 

By providing the Flash Reward Program, the Company does not operate in any other manner than an intermediary between the entity issuing the Digital Asset airdrops and the User. The airdrop is not generated by the Company but by the entity issuing the Digital Asset and the Company does not have control over future distributions of airdrops, if any. The Company is merely collecting the airdrop and transferring it to the Users on a pro-rata basis of the Digital Assets subscribed by the User to the Flash Reward Program.

The Flash Reward Program is available only for the Digital Assets for which the Flash Reward Program is accessible from the SwissBorg App. By subscribing to the Flash Reward Program, you instruct the Company to execute the following transactions: lock-up your Digital Assets for a period of time specified in the SwissBorg App and transfer airdrops to your Digital Asset Wallet. 

The User understands that when subscribing Digital Assets to the Flash Reward Program, a pre-subscription period determined by the Company and displayed on the SwissBorg App will take place, during which the User can subscribe additional Digital Assets to the Flash Reward Program but during which airdrops shall not be transferred, meaning that the Digital Assets subscribed do not generate yield and cannot be unsubscribed. In addition, once the pre-subscription period is over, a lock-up period determined by the Company and displayed in the SwissBorg App will take place, during which airdrops will be transferred but during which the User will not able to unsubscribe the Digital Assets. Additionally, no new subscription is possible once the lock-up period has started. Airdrops will only be available at the end of the lock-up period.

Once your Digital Assets are allocated to the Flash Reward Program and the lock-up period has expired, the Company will transfer to your Digital Asset Wallet the accrued airdrop, in the same type as the Digital Assets initially subscribed and such Digital Assets, together with the accrued airdrops, will be automatically unsubscribed from the Flash Reward Program. The amount of Digital Assets to be airdropped is solely decided by the entity issuing the Digital Asset and the Company merely displays the estimated accrued yield, calculated based on this amount and the Digital Assets locked-up.    

SwissBorg will collect the airdrop and return it to the Users together with the Digital Assets subscribed to the Flash Reward after deducting applicable Transaction Fees. The airdrop transferred to the User is net from such Transaction Fees and, where applicable, third-party fees and reflects the Premium Tier rate of the User. Additional information on fees can be provided upon request.    

The maximum balance of Digital Assets that can be subscribed to the Flash Reward Program is based on the User’s Premium tier and displayed in the SwissBorg App. 

The User understands and agrees that by subscribing Digital Assets to the Flash Reward Program, a variation of his/her Digital Asset value during the lock-up period might happen. The Company shall bear no responsibility in case of loss of value of the Digital Assets subscribed to the Flash Reward Program due to market volatility or lack of liquidity shall such events occur.

7.INVESTIGATION

7.1. You understand that the Company reserves the right to investigate the source of any Fiat Asset and/or Digital Assets  available on your User Account 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, a blockchain analysis and/or the circumstances by which You receive them, the Company determines that You are not the owner of these Fiat Assets and/or Digital Assets and/or that the Fiat Assets and/or Digital Assets a stemming from criminal or illicit activities, You hereby accept and understand that the Company reserves the right to dispose of these Fiat Assets and/or Digital Assets in accordance with the Applicable Laws and to report any findings to the Relevant Authority. 

7.3 In the event of formal request received by the Company from a Relevant Authority and/or from competent tax authorities, the Company shall be entitled to submit your Personal data to the Relevant Authority and/or to competent tax authorities.

8.ORDERS 

8.1. Possible Transactions

The User may place the following Orders through the Execution Interface:

a. Orders which allow the purchase of Fiat Asset(s) or Digital Asset(-ies) with Fiat Asset(s) or BORG or Digital Asset(-ies);

b. Orders which allow the conversion of a Fiat Asset(s) or Digital Asset(-ies) into Fiat Asset(s) or Digital Asset(-ies);

c. Orders which allow for the subscription of Digital Assets to the Yield Service;

d. Orders which allow for the execution of Token Swaps unless this is done automatically, based on the protocol of the Digital Asset or unless this is done in order to ensure the continuity of the Service, and/or the technological support of the Digital Asset and/or the migration of a protocol to another protocol supporting the Digital Asset;

e. Provided this feature is available on the User’s Account, Orders which allow the recurring purchase of Digital Assets at a pre-determined frequency and in a pre-determined quantity (hereafter, an “Auto-Invest Order”).

If an Order is executed on one or more of the decentralized Exchanges listed in Annex 3, on an over-the-counter basis, or against the Company’s own funds, you will be informed in advance and by clicking “Confirm Exchange”, you consent to the execution thereof. 

8.2. Auto-Invest Order

Users may instruct the Company to implement a recurring order allowing them to purchase and allocate a Digital Asset (including a Thematic) to their Digital Asset Wallet or Earn Wallet, whichever applies, at a pre-determined frequency and in a pre-determined quantity. In order to implement an Auto-Invest Order, a User will have to choose (i) a Digital Asset to purchase, (ii) a source of funds, (iii) a purchase frequency, (iv) an amount to invest and (v) a starting date. The Auto-Invest Order will occur in identical periodic instalments based on the User’s choices, until termination, either by the User or by the Company. Auto-Invest Orders are subject to minimum and maximum invested amounts, as displayed on the App. 

By setting up an Auto-Invest Order, the User expressly (i) instructs the Company to automatically, on an execution-only basis, execute all necessary Orders to purchase a Digital Asset on the specified dates or when the specified conditions are met, in accordance with the selected choices of the User and (ii) authorises the Company to initiate recurring debit entries to his/her Digital Asset Wallet or Earn Wallet. 

Auto-Invest Orders can be suspended, resumed or cancelled by the User at any time. The Company will cease to execute Auto-Invest Orders as from the User’s request to suspend or cancel them, or as from the moment the User’s available balance becomes insufficient to execute an Auto-Invest Order. 

The User understands and agrees that any already executed Auto-Invest Orders cannot be cancelled and that the purchase price is subject to market fluctuations and cannot be guaranteed. 

The Company reserves the right, at its sole discretion, to reward Users in return for using Auto-Invest Orders without interruption over a certain period of time, to be determined by the Company. 

Applicable fees are detailed in the fee section of the Website: https://swissborg.com/legal/swissborg-app-fees. 

8.3. Licence limitation

SwissBorg Solutions OÜ is licensed to carry out the orders concerning the exchange of Digital Asset(-ies) against Fiat Asset(s) through an Estonian Licence number FVT000326 and a French registration number E2022-034. Should the User be located in a country where Fiat Assets are not supported, the User is not allowed and will be effectively prevented from placing Orders involving Fiat Assets. This prohibition shall remain up until the Company notifies the User that the use of Fiat Assets is available in the country where the User is located.

8.4. Order Execution 

An Order placed through the Execution Interface will be Executed, and the Transaction will appear in your User Account, under the concerned Wallet (Fiat Wallet or Digital Asset Wallet). You may also give Orders to the Company to subscribe your Digital Assets to the Yield Service. In such instances, the Digital Assets subscribed to the Yield Service will appear in this Wallet that you can consult on the App.

By clicking “Confirm Exchange”, You instruct and give Order to the Company to use the Fiat Assets and/or Digital Assets in your Wallet to Execute the Order on your behalf. You are aware and agree that the Company merely Executes the Order and is under no obligation to verify whether the Order is adequate and appropriate. You acknowledge and agree to the absence of such verification, and that it will not be reminded at the occasion of each Order placed. 

When We Execute a Transaction based on your Orders, we are not able 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/or Digital Assets as well as for your use of the Yield Service or for your use of the Token Swap including whether or not it meets your needs or objectives.

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 Digital Assets within your Wallet to carry out the Execution of Orders.

The User is the sole 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.

If you have an insufficient amount of Fiat Assets and/or Digital Assets in your User Account to Execute an Order, the Transaction will be cancelled. 

An Order summary shall appear in your User Account and it will indicate at least, but not limited to the following:

a. The Order that you placed;

b. The amount transacted and whether it was transacted in Fiat Assets and/or Digital Assets;

c. The Transaction number;

d. The date of the Transaction;

e. The rates at which Transactions are Executed (referred to as the Exchange Rate on the App);

f. The fees which are charged for the Transactions;

g. The time taken for the Transaction to be Executed;

h. The Service fee; and

i. The status of your Order.

You give to SwissBorg the right to Execute the Orders you place through the App and/or subscribing your Digital Assets into the Yield Service. In any event, SwissBorg  has no discretion over your Fiat Assets and/or Digital Assets.

Additionally, you will be able to see the number of Transactions that were processed in order to Execute your Order.

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 8.5. 

You acknowledge, understand and accept that the Company is not liable for the amounts and type of Orders which you place on through the App.

8.5. 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.

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.

8.6. Price Volatility 

Particularly during periods of high volume, illiquidity, fast movement or volatility in the Exchange of the Fiat Assets and/or Digital 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.

If there’s an increase or a decrease in the Market Price of the Fiat Assets and/or Digital 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.

At this point, we do not accept any returns or give Refunds for your purchase of Digital Assets, 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.

8.7. Legality 

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.

9. SECURITY BREACH 

9.1. 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. 

9.2. 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.

10.ELIGIBILITY

10.1. KYC/AML. To become a User, you need to pass Tier 1 of the KYC Process. 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.   

10.1.1. The Company uses external Third-Party Service Provider(s) to conduct KYC and AML checks to fulfil 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 Digital Asset(-ies) transferred in the Fiat Wallet and/or Digital Asset Wallet and/or other Personal data and information which the User provided to the Company. 

10.1.2. The list of information, Personal data and/or documents which are requested by the Company to fulfil the KYC Process differs between Tier 1, Tier 2 and Tier 3 listed hereunder. 

10.1.3. 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 to fulfil 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.

10.1.4. Users will also undergo a Suitability Process 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 behavioural analysis of the Users interaction with the App in order to analyse whether there is the possibility of money laundering activity and the funding of terrorism on the App.

10.1.5. 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 fulfil any of the Tiers within the KYC Process.

10.1.6. 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. 

10.1.7. Such factors include, but are not limited to:

a. The amount of Fiat Assets and/or Digital Assets placed on your User Account;

b. The amount of Transactions carried out by you in your User Account

10.1.8. 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. 

10.1.9. You accept that, depending on the amount placed into the Fiat Wallet and Digital Assets Wallet and/or the Orders placed through the Execution Interface, the Company 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 may take any action which it deems appropriate, including preventing You from using the App.

10.1.10. The Company reserves its right to reject your User Account registration and/or your Fiat Assets and/or Digital Assets or to later close your User Account, if you do not provide Us with accurate, complete and satisfactory information, Personal data or documents.

10.1.11. 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.

10.1.12. 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 behaviour 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. 

10.1.13. The Company reserves the right to request further information on the Digital Assets which you place in the Digital Assets Wallet in order to carry out further investigation in line with the FATF Guidance for VASPs. 

10.1.14. 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.

10.2. Collected data. The Company and/or the Third-Party Service Provider(s) will collect and/or process and/or handle the following Personal data:

10.2.1. 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. Biometric features used by FaceID;

c. Your phone number;

d. Your e-mail address;

e. Your logs (date and time);

f. Your Transactions;

g. Balances of Fiat Assets and Digital Assets;

h. Financial Data as detailed in the Privacy Notice;

i. (Any of) your Cookies in accordance with our Cookie Policy; 

j. Your geographical location.

10.2.2. KYC&AML data. The Personal data you provide in the course of your registration or during the KYC Process or while using the App and/or Services will be used in accordance with the Privacy Notice which are hereby incorporated into these Terms. In order to use the Services available on the App, the following Personal data may be collected for KYC purposes, included but not limited to: a) TIER 1

• Full name;
• Date of Birth;
• Place of birth
• Address (Full details);
• Nationality;
• Valid Identity document (such as an unexpired passport, a valid unexpired national or another government-issued identity card, a valid unexpired residence card or a valid unexpired driving license);
• Selfie or video for facial similarity check;
• Basic suitability question regarding your source of income;
• Basic suitability question regarding your origin of Fiat Assets and/or Digital Assets.

b) TIER 2

• Proof of residence document.

c) TIER 3

• Proof of wealth documentation.

10.2.3. 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:

• Basic suitability question regarding your investment experience;
• Basic suitability question regarding your Digital Asset experience.

10.3. Unless corporate use is approved by the Company, 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: a. You are at least eighteen (18) years old or of legal age to enter into a binding contract;

b. You have the right, authority and capacity to agree to the Terms on your own behalf;

c. You will not use a false name, identity or email address owned or controlled by another person with the intent to impersonate that person for any other reason;

d. You shall not use a name that is subject to any rights of a person other than yourself without proper authorization;

e. You are not a citizen or resident of the US, or any US territory;

f. You are not a citizen or resident of North Korea, Iran or any other country that is under FATF sanctions or deemed very high risk by the FIU; 

g. Access and use of the App and/or the Services are NOT restricted in your country; 

h. You have not previously been suspended or removed from using the Services offered on the App;

i. You must provide current, accurate identification, contact, and other information that may be required as part of the registration process and/or continued use of the Services;

j. You understand the nature of Transactions and that you may be exposed to a loss which can be equal to the total amount of Fiat Assets and/or Digital Assets visible on your Wallet;

k. You have regular access to the internet and you have provided us a valid email address which we can use to communicate with you;

l. You will conduct yourself in a civil manner in all your interactions with us.

10.4 Any legal person, including but not limited to any enterprise, corporation, foundation, association or other legal entity is eligible to use the App, subject to prior approval by the Company and to the compliance with the KYC Process applicable to corporate clients. A natural person cannot use the App on behalf of an enterprise, foundation, association, corporation or any other legal entity unless a power of attorney has been uploaded onto the App.

Should you not fulfil 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.

10.5. If you create a User Account, you are solely responsible for maintaining the confidentiality of your passcode and Paper Key and you 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.

10.6. 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.

10.7. 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. 

10.8. 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. 

10.9. 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.

10.10. 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.

11. STATISTICS

11.1. We provide statistics in your User Account in order to provide you with a better understanding of your Fiat Assets and/or Digital Assets, Withdrawals, profit/loss and the Service 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.

11.2. Notwithstanding that you are present in a country where the App has only Digital Assets 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.

11.3. 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. 

11.4 Any token analysis and/or Community sentiment and/or Cyborg Predicator analysis and/or SwissBorg Indicator analysis made available on the App are purely informative and shall in no event be considered as personal recommendations to you. The Company shall in no event be held liable for losses incurred or gains unrealised as a result of token analysis and/or Community sentiment and/or Cyborg Predicator analysis and/or SwissBorg Indicator analysis.

12.STATEMENT OF ACCOUNT

12.1. A statement of your User Account, including the amount and type of your Fiat Assets and/or Digital Assets, may be accessed in electronic format for viewing online at the applicable page in your User Account or may be requested from our support service. 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 from real-time data, errors may occur. 

12.2 Your Account will reflect your balance based on consolidated exchange rates applicable on the Exchanges. Your balance displayed on the App for a specific Digital Asset or Fiat Asset will be indicative only and there may be discrepancies or inconsistencies, as a result of the investments you have made with such Digital Asset or Fiat Asset in the different products available to you. This indicative balance shall not bind SwissBorg or its directors or employees in any way towards you. You can request SwissBorg to provide you with the details of the execution of your orders and your actual balance. 

12.3 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.

13.FEES

13.1. For more details regarding Transaction Fees resulting from the exchange and/or Withdrawal of Fiat Assets and/or Digital Assets from the User Account, please check: https://swissborg.com/legal/swissborg-app-fees.

13.2. By clicking “Confirm Exchange”, you are giving your consent for Service Fees to be charged by the Company for the Execution of an Order. 

13.3. The Transaction Price shown in the App is the net of Transaction Fees. Therefore, Transaction Fees are charged additionally for every Transaction carried out on the App. 

13.4. The Company may modify the Transaction Fees at any time, as displayed within the App and/or the Website, without prior notice to You. You can have access to the applicable Transaction Fees through the following link :https://swissborg.com/legal/swissborg-app-fees.

13.5. The Company has the right to charge additional expenses caused by the User, as a result, inter alia, of misleading information, legal proceedings or claims against the Company or AML proceedings or investigations or the termination of the User Account. The Company may also charge additional expenses if the Users transfers Digital Assets which are not supported by the App and/or to the wrong wallet address and/or over the wrong blockchain protocol, should the Company decide, in its sole discretion, to try and recover these Digital Assets on the User’s behalf.

14.REFERRAL PROGRAM

14.1. 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 BORG or any other Digital Asset, at the Company’s sole discretion. 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 transfer which has the minimum equivalent value of fifty Euro (€50). 

14.2. The amount received by you and the Referred Person individually shall be of an amount decided at the Company’s sole discretion, between the equivalence of zero Euro (€0) to one hundred Euro (€100) in BORG or any other Digital Asset, at the Company’s sole discretion. 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. Tickets unclaimed for a period of one (1) year shall be considered null and void and shall give rise to no claim against the Company.  

14.3. 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 14. 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 exercises its rights under this Section 14.3. 

14.4. The Company reserves the right to conduct special promotional activities for the Referral Program during events out of the ordinary course of time during which the Reward and the conditions relating to the granting of the Reward are modified (“Special Events”). The creation, duration and conditions of such Special Events including but not limited to, initial transfer and Reward value, shall be decided at the Company’s sole discretion and shall be displayed on the App and/or in the User Account and/or on the Website and/or communicated by email. 

14.5. When participating in the Referral Program, you are prohibited from, including but not limited to, performing the following actions:

• Spamming, mass emailing, or performing any similar mass messaging; 
• Using automated systems, bots, or scripts; 
• Misleading or attempting to mislead anyone in connection with the Referral Program, including but not limited to, in connection with your relationship with the Company  or in connection to the Services provided by the Company;
• Creating multiple or fake accounts, websites, or profiles; 
• Using the Referral Program in an abusive manner;
• Exploiting the Referral Program or any part of it for any commercial purpose, including any advertisement of your own or any other person’s products and services;
• Using the Referral Program for any public display, public performance, sale or rental; and
• Using the Company brand and/or the Referral Program in connection with any offensive, abusive, harassing content, content that violates any laws or regulations, or defamatory content related to the Company or any third parties.

In relation to the Referral Program and above mentioned prohibited actions, the Company reserves the right to, at its sole discretion:

• Limit your use of the referral link part of the Referral Program;
• Impose additional restrictions related to eligibility;
• Deactivate your referral link at any time at its sole discretion;
• Disqualify any actions performed by you or the Referred Person and not pay out any Reward to you or the Referred Person at its sole discretion; and
• Implement any other appropriate measure to protect the Referral Program and the Company’s interests.

15.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.

16.INTELLECTUAL PROPERTY RIGHTS

16.1. 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. 

16.2. 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.

16.3. 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. 

16.4. 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.

16.5. 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. 

17.LICENCE

17.1. 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 licence to:

a. Download, install and use one copy of the App in object code form only on a mobile device that you own or control;

b. Use and display the App Content on your computer screen or mobile devices, such as smartphones or tablets;

c. Place Fiat Assets and/or Digital Assets onto your Wallet(s);

d. Access your User Account and/or to your Wallet(s);

e. Use the App, particularly the Execution Interface, for placing Order(s);

f. Using the App and benefiting from the Services in accordance with their intended purposes, subject to your strict compliance with these Terms, Applicable Laws and any of our policies.

(all together hereinafter referred to as the “Licence”).

17.2. 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.

17.3. The Licence 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 Service Fees and/or 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 Licence granted by the Company is immediately revoked without any reservation and the User Account shall be closed with immediate effect.

18.REVIEWS, FEEDBACK & COMMENTS

18.1. 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.

18.2. 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.

18.3. 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. 

18.4. 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.

19.CLOSING YOUR ACCOUNT

19.1 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. Following such notification, we may terminate your ability to transact in your User Account and only permit you to request a withdrawal of the remaining available Fiat Assets and/or Digital 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.

19.2. You acknowledge and agree that all Digital Assets and/or Fiat Currencies held in your User Account that are of an amount less than the minimum exchange threshold, as displayed on the Fee section of the SwissBorg Website at any given time, will be lost once your User Account is closed by the Company upon your request. You hereby irrevocably release the Company from and waive all rights against the Company in respect of these Digital Assets and/or Fiat Currencies

19.3. All Fiat Assets and/or Digital Assets must be withdrawn prior to the definitive closing of your User Account. You will have a deadline of five (5) days to proceed to the withdrawal of your Fiat Assets and/or Digital Assets. Any Fiat Assets and/or Digital Assets 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 Fiat Assets and/or Digital Assets. 

20.PROHIBITED ACTIONS 

20.1. When using the App and/or the Services, you shall not, including but not limited to:

a. Disclose your User Account login referential. We will never ask you for your credentials by telephone or email;

b. Falsely state or otherwise misrepresent yourself or impersonate any other User or person;

c. Authorize third-parties from using your User Account. You should not authorize at any time a third-party to use your User Account. If, however you grant access to a third party, you are solely responsible for granting access to the App to any third parties and the consequences thereof;

d. Share your User Account with another individual or entity. At any time, you should refrain from disclosing your credentials to a third-party;

e. Copy, in whole or in part, any of the information on the App or App Content other than for the purposes contemplated by these Terms;

f. Exploit the App or the Services or any part of it for any commercial purpose, including any advertisement for your own or any other person’s products and services;

g. Copy, adapt, modify, perform, translate, reverse engineer, disassemble or decompile any of the software underlying the App or the App, including the Execution Interface;

h. Duplicate, copy or reproduce any part of the App or the Services;

i. Create more than one User Account or maintain any unauthorized connection to the App;

j. Disseminate, launch or use viruses, trojan horses, and other malware using the App; 

k. Use automated programs and scripts in particular, for the collection of the information on the other Users of the App;

l. Copy, modify, distribute or sell any part of the App or Services;

m. Introduce any material that contains software viruses, malwares, ransomwares or spywares or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware, mobile devices or telecommunications equipment or any other technologies that may harm the App, the Services or the interests or property of the User or of the Company;

n. Introduce backdoors or malicious code that exploits system flaws and vulnerabilities and is used to facilitate remote unauthorized access to a computer system or program;

o. Carry out permanent denial of service attacks (PDoS) attack which results in denying the Company or any Third-Party Service Providers;

p. Copy, modifying, distributing or selling any part of the Services and/or the App;

q. Interfere or attempt to disrupt the Services and/or the App in any way;

r. Create any derivative works based on or using the App;

s. Use the App and the Services for any public display, public performance, sale or rental;

t. Use Company’s data or Users’ data to develop, create, register, list, trade, clear, or settle any investment product or financial product of any kind;

u. Knowingly or recklessly use and/or take advantage of a technical or technological error, loophole or glitch in the App or Services;

v. Re-distribute the App or the Services, and/or attempt to use the Wallets for any purpose other than to Execute Orders;

w. Remove any copyright or other proprietary notices from the App Content or, falsify or delete any author attributions, legal or other proper notices or labels of the origin or source material that is uploaded or otherwise provided by you;

x. Frame or utilize any framing techniques in connection with our Site, the Services or the Materials; 

y. Use meta-tags, pay-per-click advertising, or any other “hidden text” using our App’s name or marks or the Company’s trademarks;

z. Re-sell, deep-link to any page of the App, use, copy, monitor (e.g. scrape), display, download or reproduce any content or information, software or Services available on the App.

20.2. You also warrant that You will not, including but not limited to:

a. Copy the App, the App Content the Execution Interface or any part of the App;

b. Copy, reproduce or modify the whole or any part of the App or the Execution Interface, or permit it to be combined with, or become incorporated in any other programs, except as necessary to use the App on devices as permitted in these Terms;

c. Attempt to reverse engineer the App (except as permitted by law), source code or the Execution Interface;

d. Use the App in any unlawful manner or for any unlawful purpose, including but not limited to illegal gambling, money laundering, fraud, blackmail, extortion, for illicit Transactions or activities, ransoming data or the financing of terrorism, or other violent activities;

e. Use the App in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other Users; 

f. Collect or harvest any information or Personal data from the App or our systems or attempt to decipher any transmissions to or from the servers running the App and/or storing the Personal data;

g. Circumvent any encryption or other security tools used anywhere on the App or in conjunction with the Services (including the theft of usernames, passwords or API keys or using another person’s username, password or API key in order to gain access to a restricted area of the App); 

h. Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, or otherwise assign to any third party the App Content, the Personal data or the Services or any of your rights to access and use the App;

i. Use any App Content or information on the App or included in the Services in any manner that infringes any copyright, trademark, patent, trade secret, publicity or other proprietary right of any party;

j. Upload or attempt to upload files that contain viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of the App or another’s property;

k. Upload, post, email or otherwise transmit to us any submission that you do not have a right to transmit under contractual, fiduciary or other relationships (such as inside information, trade secrets, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

l. Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “phishing mail”, “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation using the App, App Content or the Company’s trademarks;

m. Restrict or inhibit any other User from using and enjoying the Services;

n. Harvest or otherwise collect information about other Users of the App, including email addresses or other personally identifiable information;

o. Use the App or the Services to pay for, support, receive proceeds from or otherwise engage in any illegal gambling activities;

p. Upload, post, email or otherwise transmit any material that is illegal, immoral, obscene or defamatory of any person;

q. Do anything that may adversely affect proper operation of the App or the Services and the reputation and goodwill of the Company;

r. Manipulate our billing process in order to appropriate Services Fees and/or any fees owed for the Services rendered;

s. Use the App to manipulate the price of any Fiat Assets and/or Digital Assets supported by the App;

t. Use the information, material available on the App and the App Content for competing, directly or indirectly, with the Company or any Related Entity;

u. Violate any applicable laws, regulations or policies, or these Terms.

20.3. 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.

20.4. 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.

20.5. Security interest rights

20.5.1. You hereby grant the Company a security interest right over the Digital Assets held in any and all of your Digital Asset Wallets and subscribed through the Yield Service as collateral for your obligations owing to the Company under these Terms. By agreeing to these Terms, you understand and agree that the Company may claim and/or exercise its security interest right should you be considered by the Company, at its sole discretion, an Obliged Person as defined below. In such event, you hereby agree to set-off the claims of the Company towards you with the Digital Assets you hold in your Digital Asset Wallets and/or subscribed through the Yield Service. For this purpose, you shall, upon first order of the Company, transfer the Digital Assets to the wallet indicated by the Company. Should you fail to do this, the Company may set-off Digital Assets in any or all of your Digital Asset Wallets and/or subscribed through the Yield Service to satisfy your obligations towards the Company. If any applicable law restricts the Company’s ability to transfer, convert or set-off Digital Assets in your Digital Asset Wallet and/or subscribed through the Yield Service, or if some Digital Assets are protected from attachment, levy or legal process, to the extent that you may do so by contract, you waive those conditions and limits and authorize the Company to exercise its security interest right in relation  to any obligation you owe the Company.

20.5.2. The Company reserves the right to, at its sole and absolute discretion, qualify any User as an Obliged Person where that User is debtor of the Company, notably as a result of committing any prohibited action, wrongful or abusive behaviour or making wrongful representations.

21. SUSPENSION AND TERMINATION OF YOUR ACCOUNT

21.1. 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 Fiat Assets and/or Digital Assets, and freeze Fiat Assets and/or Digital Assets or your User Account, at any time, with (termination) or without (suspension) prior notice, if:

a. We believe, in our sole and absolute discretion, that you have breached these Terms;

b. You provide incorrect, incomplete or misleading information or make a representation or warranty that is incorrect, incomplete or misleading;

c. You are located in a country where the App cannot be used in accordance with the local laws and regulations;

d. You breach any payment or delivery obligation or other term of the Terms, any other agreement with us, or any term of any arrangement you have with any financial institution, or any financial institution has suspended or terminated your use of any financial services;

e. You engage in abusive behaviour, as determined in our sole and absolute discretion including, without limitation, actions which impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to the App that contains viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to the App, other accounts, computer systems or networks connected to the App, through password mining or any other means; use the User Account information of another person to access or use the App; or transfer your Account access or rights to your User Account to a third party, unless by operation of law or with our express permission;

f. We believe, in our sole discretion, that your actions interfere with another individual's or entity's access to or use of the App; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information from the App about others, including without limitation email addresses, without proper consent;

g. We are unable to verify or authenticate any information you provide to us in your KYC;

h. We believe, in our sole and absolute discretion, that your actions may cause legal liability for you, our Users or us;

i. You send any type of Digital Asset to the Digital Assets  Wallet using any source that you do not have the legal right from which to transfer such Digital Assets;

j. You send any Fiat Assets to the bank account of the Fiat Custodian using any source that you do not have the legal right from which to transfer funds;

k. We have reasonable suspicion that you are directly or indirectly using the App in a way which would violate, or assist in violation of, any law, statute, ordinance, or regulation or sanctions programs, or which would involve proceeds of any unlawful activity; publish, distribute or disseminate any unlawful material or information in violation of applicable law or regulation, or these Terms;

l. We are directed to do so by law enforcement, regulatory authority or court order;

m. We are required to do so by applicable law or regulation;

n. Your User Account is subject to pending litigation, investigation or governmental proceeding;

o. You become insolvent or any of your Fiat Assets and/or Digital Assets are subject to insolvency proceedings;

p. You disaffirm, disclaim, repudiate or reject, in whole or in part, the Terms or any transaction undertaken by you through the App;

q. We believe that someone is attempting to gain unauthorized access to your User Account;

r. You are convicted of a tax or other crime in any jurisdiction;

s. We believe there is unusual activity in your User Account or that your User Account is being operated or the App is being used by you in an irregular or improper manner;

t. Any of your Fiat Assets and/or Digital Assets are subject to enforcement of a judgment or are expropriated, compulsorily acquired or resumed on any basis;

u. Your User Account is empty, inactive or has not been accessed for more than one (1) year;

v. Anything occurs which, in our opinion, is likely to have a material adverse effect on your ability or willingness to comply with your obligations under the Terms; or

w. Subject to applicable law, for any other reason in our sole and absolute discretion.

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.

21.2. The Company is not responsible for any loss of value of Fiat Assets and/or Digital 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.

21.3. You acknowledge and agree that all Digital Assets and/or Fiat Currencies held in your User Account that are of an amount less than the minimum exchange threshold, as displayed on the Fee section of the Website at any given time, will be lost once your User Account is closed by the Company under this Section 21. You hereby irrevocably release the Company from and waive all rights against the Company in respect of these Digital Assets and/or Fiat Currencies. 

21.4. In any case where a User successfully completes a Recovery and/or modifies the phone number and/or the email address provided during registration, the Company will, as soon as one of the above-mentioned event occurs and for a period of up to seventy two (72) hours, disable the following User Account features:

• Fiat Assets and Digital Assets withdrawals;
• Modification of parameters for future withdrawals (notably, bank accounts);
• Modification of the User’s phone number;
• Modification of the User’s email address;
• Revocation of the Recovery Phrase (for Users concerned). 

Upon occurrence of such an event, the Company will notify the User by email and on the App and with a notification made on or through the App. 

The Company similarly retains the right to cancel User Accounts that have been inactive for a long time.

22.FRAUD DETECTION

22.1. 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 support@swissborg.com. 

22.2. 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.

22.3. If You share your mobile device with others, the Company will not be liable for any loss that You may incur as a result of someone else using your User Account with or without your knowledge. The Company will ensure all Personal data or any form of data which is subject to the Privacy Notice that the Third-Party Service Providers request to be provided, including those needed for fraud checks, are provided to the Third-Party Service Providers with each Transaction submitted for processing.

22.4. 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. 

23.UNCLAIMED ASSETS

If there are Fiat Assets and/or Digital 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 Fiat Assets and/or Digital Assets on your behalf and deliver any Fiat Assets and/or Digital Assets to the applicable jurisdiction as unclaimed property. We reserve the right to charge a fee or other administrative charges from such unclaimed Assets, as permitted by applicable law.

24.ORDER CANCELLATION AND REFUNDS 

24.1. 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, tax authorities, 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, tax laws 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 Digital Assets are not reversible. Distributed ledger technology does not allow for the reversal, deletion, removal, or amendment of any Transactions which will be recorded. 

24.2. 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, any Related Entity and directors, consultants or employees free from all direct and indirect damages and/or fees (including chargeback fees, attorneys and court fees) incurred by such undue opposition.                                                                                                  

24.3. We reserve the right to cancel any Transaction affected by such circumstances without any obligation to indemnify the Users.                                                                                                                                                     

25.LINKS AND LINKING

25.1 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.

Use of any website or app or resource controlled, owned, or operated by third parties is governed by the terms and conditions of use (including privacy policies) for those websites, apps or resources and not by the Terms or our Privacy Notice. We reserve the right to terminate any link or linking program at any time.

25.2 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 all losses that may result from your use of links that may appear on the App or via the Services.

26.TAXES

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. 

27.ELECTRONIC COMMUNICATIONS

27.1. 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.

27.2. 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 Services 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.

28.TRADEMARKS

28.1. 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.

28.2. "SwissBorg®" is a registered trademark as a name and logo and www.swissborg.com a domain name owned by the Company or its licensors. 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 or its licensors (referred to as the "Trademarks"). 

28.3. 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.

28.4. 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.

29.RISK DISCLOSURE

The Services offered through the App involve significant risks.  

The User fully acknowledges and accepts the risks inherent to using the App, the Yield Service and/or the Services. The User shall bear loss or damages resulting from the materialization of risks outside the control of the Company and that cannot be directly attributed to the Company’s breach of duty of care.

You hereby confirm that you have carefully and thoroughly read and understood the list of such risks as expounded in Annex 6.  This list is not exhaustive. There may be additional risks that the Company has not foreseen or identified. The Company shall update the list contained in Annex 6, from time to time, considering the developments it becomes aware of. 

You hereby acknowledge that you have carefully assessed your financial situation and risk tolerance, and as a consequence, you have conducted any additional research, or asked advice, as you may have deemed necessary to complete the information provided to you in Annex 6. 

You agree to assume responsibility for any of the risks listed in Annex 6 and any other risks, assumptions and decisions involved. 

You agree to use the App at your sole risk and to hold the Company, any Related Entity and directors, consultants or employees free from any claim with respect to risks listed in these Terms.

30.LIABILITY AND DISCLAIMER OF WARRANTIES

30.1. THE SERVICES ON THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH THE CUSTOMARY DUTY OF CARE APPLICABLE TO THE EXECUTION OF ORDERS. 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. 

30.2. IN ADDITION, THE COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE APP OR THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SPEED, 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. 

30.3. 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. 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 ON THE APP.

30.4. YOU AGREE NOT TO HOLD THE COMPANY OR ANY RELATED ENTITY LIABLE FOR ANY LOSSES RESULTING FROM MAKING ANY DIGITAL ASSETS AVAILABLE ON THE APP. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT  CONTINUOUS TRADING OF DIGITAL ASSETS AVAILABLE ON THE APP ON THE EXCHANGES INTERFACED WITH THE EXECUTION INTERFACE. IN THE EVENT OF DELISTING OF A DIGITAL ASSET FROM EXCHANGES, THE COMPANY SHALL NOT BE LIABLE IN ANY WAY IF IT IS NO MORE SUPPORTED ON THE APP.

30.5 YOU ACKNOWLEDGE AND AGREE THAT YOU ACCESS AND USE THE APP AND THE SERVICES AT YOUR OWN RISK.

30.6 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. 

30.7. 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.

31. DOWNTIME

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 (“Downtime”). We do not warrant that the App and the Services operate uninterrupted or error free. We also do not warrant that the Fiat Custodian operates uninterrupted or error free. We are not responsible for any damages or losses suffered by you because 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. 

From time to time due to technological factors, scheduled software updates and the performance of other maintenance, as well as factors beyond or within our control, the Site, the Products, or other Services may be temporarily interrupted. Information on scheduled maintenance windows can be found on our App. Open orders, transfers and/or exchanges will be held during Downtime and processed normally following Downtime, cancelled or dealt with in such other manner as may be specified by the Company from time to time. Following any Downtime, market conditions and prices may differ significantly from conditions and prices prior to such Downtime. The Company shall not be responsible for any loss resulting from Downtime.

32.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 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 because of your failure to perform an update of the App.

33.CUSTOMER SUPPORT AGENT

If you should have any difficulties, a customer support service is available for You to make contact with one of our Support Agents. Any information or Personal data which is handled by the Support Agent shall be collected and processed in line with the Privacy Notice and with the Company’s internal customer complaint procedures. 

34.LIMITATION OF LIABILITY

34.1. These Terms set out the full extent of our obligations and liabilities with respect to the Services and the provision of the App. Any liability, loss or damages suffered in the absence of any fraud or severe breach of the Company’s duty of care in the Execution of Orders is excluded to the extent legally permissible. Any liability of the Company is limited to direct damages actually suffered by Users as a result of the Company’s fraud or severe breach of duty of care. 

34.2 Digital Assets are highly speculative assets which rely on a number of external variables for their existence and value. As a result, there are a number of additional risks and liabilities that you will be exposed to when trading Digital Assets. This paragraph sets out a number of these liabilities and explains the circumstances under which we will not be liable for any losses, costs, or expenses that you suffer subject to Applicable Law. 

34.3 We are not liable to you where you suffer a loss, cost, or expense as a result of: (a) any delay or change in market conditions before we execute an Order or before a Transaction settles; (b) any delay or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect your computer or other equipment, any cyber-attack or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from us; (c) any loss caused by theft, robbery, burglary or other criminal taking if a computer, computer system, computer software program, malicious code, computer virus or process or any other electronic system is used to perform such acts; (d) any loss of any kind resulting from any communication failures, disruptions, errors, distortions or delays you may experience when trading on the App, regardless of how they are caused; (e) any loss resulting from a network failure of a Digital Asset's cryptographic protocol; (f) any loss caused by a custodian and/or by any third party; (g) any lost profits or damages that are caused by or are connected to unauthorised use of the App or Services, even where we or one of our representatives knew or should reasonably have known about the possibility of such damages; and (h) any loss of any kind, from action taken in reliance on material or information, contained on the App or websites and/or on the blockchain systems. Neither the Company, its affiliates and Third-Party Providers, nor any of their respective officers, directors, agents, joint venture partners, employees or representatives, will be liable for any amount larger than the value of the Digital Assets currently placed in your Digital Asset Wallet. As a result, for example, if you claim that we failed to process a buy or a sell Transaction properly, your damages are limited to no more than the value of the supported Digital Asset at issue in the Transaction. We also do not promise or guarantee that: (a) the App, and the server that makes it available, are free of viruses or errors, that its content is accurate, that it will be uninterrupted, or that defects will be corrected; (b) the Services will be available at all times; (c) access to our App, any part of the Services, our Terms and other information provided by us or any part of our services will be continuous, uninterrupted, timely, or error-free; or (d) historical Digital Asset price data available on the App is accurate and/or complete. 

34.4. 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 SUBSCRIBED TO THE YIELD SERVICE AND EXECUTED PROPERLY BY THE COMPANY.

34.5. 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.

 34.6. 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 APP OR 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. 

34.7. THE APP, ALONG WITH THE UNDERLYING EXECUTION INTERFACE, REQUIRES AN INTERNET CONNECTION 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.

34.8. 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.

34.9. 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.

34.10. THE USER UNDERSTANDS THAT THE YIELD SERVICE AND PROTOCOLS RELY ON TECHNOLOGY, SMART CONTRACTS, AND RISKS 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 THE YIELD SERVICES AND/OR PROTOCOLS. THE USER UNDERSTANDS THAT THE COMPANY IS ONLY A TECHNOLOGY PROVIDER. THE ABILITY TO SUBSCRIBE DIGITAL ASSETS TO THE YIELD SERVICES AND/OR PROTOCOLS THROUGH THE APP DOES NOT MAKE THE COMPANY LIABLE IN ANY WAY, NOR SHALL IT BE CONSIDERED AS AN OFFERING OF THE PROTOCOLS.  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 SERVICE AND/OR THE PROTOCOLS AND/OR ANY LOSS OF DIGITAL ASSETS AND/OR FIAT ASSETS AS A RESULT OF USING THE YIELD SERVICE AND/OR THE PROTOCOLS.

34.11. 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 DIGITAL ASSETS 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 DIGITAL ASSETS 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. 

34.12. 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.

34.13. 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 ON AND IS ENTITLED TO RELY ON.

34.14. IN ANY EVENT, THE COMPANY WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE APP, 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 MARKET VALUE IN EUROS OF THE RELEVANT TRANSACTION.

34.15. THE COMPANY IS NOT LIABLE OR RESPONSIBLE FOR THE REMITTANCE, COLLECTION, WITHHOLDING OR PAYMENT OF THE RELEVANT TAXES DUE ON DIGITAL ASSETS YOU PURCHASE OR CONVERT TO THE RELEVANT TAX AUTHORITIES. 

35FORCE MAJEURE

35.1 The Company cannot accept responsibility for any damage, loss, delay, or inconvenience caused to the User by circumstances beyond our reasonable control, whether foreseeable or unforeseeable. Such circumstances, include but are not limited to:

a. Act(s) of war or threat of war; or

b. Riots, civil strife, or terrorist activity; or

c. Industrial disputes, natural or nuclear disasters; or

d. Fire, airport closures, bad weather conditions; or

e. Interruption or failure of a utility service including lack of electricity; or 

f. The acts of any local or national government such as an imposition of economic sanctions; or

g. Cyber-terrorism, cyber-attacks, hacking, bugs; or

h. Nuclear disaster or explosion;

i. Any epidemics or pandemics;  

j. Crypto market collapse or fluctuations;

k. Lock-down(s); or 

l. Instances where the possibility to carry out the Services are materially and adversely affected under the Terms, even though all reasonable precautions, due care, and reasonable alternative measures to avoid these instances have been taken to diminish the inability to perform such Services;

m. Technical problems, including hardware and software crashes and other malfunctions, blockchain network disruptions and failures, failure of the telecommunications or information services infrastructure, hacking, DDOS attacks, SPAM or failure of any computer, server or software disruptions on account of or caused by vandalism, theft, phone service outages, power outage, Internet disruptions, viruses, and mechanical, power or communications failures

(“Force Majeure Events”) 

35.2 Neither we (nor any bank where our accounts are held or provider with which our Wallets are held) will be liable for our failure to perform any obligations under these Terms due to  Force Majeure Events. 

35.3 If any law, regulation, rule or decision of any self-regulatory organization, or ordinance, whether domestic or international, becomes effective which substantially alters our ability to offer the App, the Services hereunder, we shall have to terminate the agreement set forth in these Terms.

35.4 In the absence of fraud or gross negligence, our total aggregate liability to You for any individual claim or series of connected claims for losses, costs, liabilities or expenses which you may suffer arising out of, or in connection with, any breach by us of these Terms shall be limited to a maximum aggregate of the balance in your Account at the time of the relevant claim.  

35.5 To the extent permitted by applicable law, we reserve the right to set-off any damages or amounts owed to us by you for your breach of these Terms, your indemnification obligations, or for your other obligations under these Terms (including, without limitation, Service Fees) and you expressly authorize us to debit Digital Assets or Fiat Asset from your Account to account for such liabilities to us.

35.6 Nothing in this clause shall affect any statutory rights or other rights which cannot be excluded under applicable law.

36.INDEMNIFICATION

You agree to defend, indemnify and hold harmless the Company with their respective shareholders, officers, directors, employees, agents (each, an "Indemnified Party") from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from your unauthorized use of the or from any breach by you of these Terms, the Privacy Notice, the Company’s AML Policy including without limitation any actual or alleged violation of any law, rule or regulation.

37.ENTIRE AGREEMENT & SEVERABILITY

These Terms, the Privacy Notice (applicable to Users) and the applicable policies (including the Company’s AML Policy), subject to any amendments, shall constitute the entire agreement between you and the Company with respect to the Services including the App and the Execution Interface. If any provision of these Terms is found to be invalid by a court or competent jurisdiction, that provision only will be limited to the minimum extent necessary, and the remaining provisions will remain in full force and effect.

38.DURATION AND TERMINATION

38.1. These Terms are valid for an indefinite period, starting as from their acceptance on the App by the User,  until terminated by Us or by You.

38.2. 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. 

38.3. 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 Fiat Assets and/or Digital 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.

The Company may,  in specific circumstances and in accordance with the Applicable Laws,  require you to provide a bank account  in a credit institution registered or having its place of business in the European Economic Area for you to retrieve your Fiat Assets upon the termination of your User Account under this provision.

38.4. 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.

38.5. 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.  .Except for those rights and obligations that are validly assigned under these Terms, both you and the Company shall continue to be subject to the rights and obligations arising from these Terms and/or any terms and conditions constituting a supplement to or complementing these Terms, which by intent or meaning have validity beyond termination or suspension (including, but not limited to, rights with respect to Intellectual Property Rights and data retention, retrocession, indemnification, liability limitations and termination) shall survive the termination of the legal agreement between you and the Company

38.6.  In addition, in case of termination by the Company, the Company may, upon explicit acceptance of the User, ensure a continuity of Services by enabling a transfer of your User Account to a third-party service provider. In the latter case, the User will be prompted to accept the transition. The User understands and agrees that upon acceptance of the transition, the User will subscribe to the Services provided by the third-party service provider. All Services provided by the Company will be provided by the third-party service provider, including all Services described in these Terms.

39.RESERVATION OF RIGHTS

39.1. The Company 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 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. 

39.2. The Company 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 shall duly inform you with a reason why it exercised the right set out in this Section 39. The Company shall proceed to return the Fiat Assets and/or Digital Assets to you, unless the termination of the User Account was carried out by the Company 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 the User’s assets until further notice.

40.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.

41.MODIFICATIONS

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 restricting or affecting in any way your rights, 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 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 to ensure that you understand how your rights and responsibilities may have been affected by the revisions.

42.ASSIGNMENT

You may not assign any of your rights, licenses, or obligations under these Terms. Any such attempt at assignment by you shall be void. The Company may assign its rights, licenses, and obligations under these Terms without limitation.

43. GOVERNING LAW AND JURISDICTION

If your counterparty to these Terms is SwissBorg Solutions OÜ, 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. 

If your counterparty to these Terms is Dharma Ltd, the Terms shall be governed by the laws of Seychelles. Any dispute regarding these Terms shall be subject to the exclusive jurisdiction of the courts of Seychelles. 

44. CONTACT

If You wish to contact Us regarding these Terms please:

• If your counterparty to these Terms is SwissBorg Solutions OÜ: do so at the following address : Pärnu mnt. 12, 10148 Tallinn, Estonia.
• If your counterparty to these Terms is Dharma Ltd: do so at the following address: House of Francis, Ile Du Port, Mahe, Seychelles.

or at the following email address legal@swissborg.com.

ANNEX 1 – DEFINITIONS

App refers to the SwissBorg 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. 

Bank Account means an account opened by a regulated bank, financial institution or custodian which belongs to the User;

Bank Card means either a debit card, issued to its holder against a depository account held at a regulated financial institution or e-money institution, or a credit card, issued to its holder by a credit card issuer based on an underlying credit line granted by a regulated entity.

BTC means Bitcoin, a Digital Asset created in January 2009;

BORG means the SwissBorg utility token;

Community App means the SwissBorg’s Community App Application; Company means the User’s counterparty to these Terms, providing the App and Services depending on the User’s country of residence. 

Compliance Policies means the policies set forth and implemented by the compliance officer in order for the Company to comply with AML obligations.

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;

Earn Wallet means the wallet designated to support the holding of Digital Assets transferred to the Earn Wallet Service;   

ETH means the Digital Asset 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;

External Wallet means a Digital Asset wallet to which a User may send or receive Digital Assets to or from which a User transfers or receives Digital Assets;

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 financial institution, electronic money institution or payment service provider, which will serve as a custodian for Fiat Assets under the name of the Company. 

Fiat Wallet means an account held under the name of the Company, 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, as well as any other Applicable Laws, regulations and guidelines and the Company’s AML Policy;

KYC Process means the procedure which the User needs to follow whereby such User provides information to the Company in line with the Privacy Notice and these Terms. There are several Tiers within the KYC Process which are outlined in Section 10 of the Terms;

Market Price means the price of Digital Assets 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;

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 with BORG Locked to benefit from a Premium Account. The balance of BORG to be Locked is subject to changes from time to time, and is specified in the premium sections of the App.;

Privacy Notice means the notification which indicates how the Personal Data is handled and processed throughout the use of the App;

Processing Fee means the fee(s) that the Exchange or Fiat Custodian will charge for processing a Transaction;

Protocol(s) means decentralized finance protocols selected by the Users for the allocation of their Digital Assets and/or network protocols allowing the Users to contribute to the functioning of a blockchain network;

Recovery means the action where a User implements a User Account recovery procedure in the event that the details required in order to access its User Account are lost;

Recovery Phrase means the Paper Key that a User was able to create/enable before such a feature was disabled by the Company on the App;

Referral Program means the program within which a User who refers the App to another individual and the Referred Person might be eligible to earn a Reward;

Referred Person means an individual the App was referred to by a User;

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 SBorg SA and/or any entity controlled, directly or indirectly by the Company  and/or by SBorg SA;

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(s) 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;

Security Measures means the security checks, protocols, guidelines and policies implemented, from time to time, and maintained by the cybersecurity team with respect to the App;

Services means the services made available by the Company on or through the App as outlined in Section 6 of these Terms; 

Service Fees shall mean any fees displayed on the App which will be charged by the Company for the Services, including but not limited to network fees, Transaction Fees, Deposit Fees, fees charged for Withdrawals, funds transfer fees and dormancy fees. 

Smart Send(s) means the feature where a User makes a transfer of any supported Digital Asset to another User by using the Services provided through the App. Smart Sends are not subject to any Service Fees.

Special Events means events out of the ordinary course of time during which the Rewards are modified;

Staff means the Company’s and/or any subsidiary or affiliate entity’s employees or subordinate;

Standard Account means any User Account which does not have any amount of BORG Locked;

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 Digital Assets, which is held under the name of the Company within one of the Exchanges listed in Annex 3 of these Terms;

Terms means these Terms of Use including its Annexes when such Annexes are applicable to the User;

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 10 of the Terms;

Token Swap(s) refers to the execution of swaps which allow for the migration from one protocol to another protocol;

Top Up refers to subscribing additional Digital Assets to the Yield Service.

Tradable Digital Assets means Digital Assets that can only be purchased, sold and converted via the App, but cannot be deposited or withdrawn therefrom.  

Transaction(s) means the Execution of an Order on or through the App, using the Execution Interface. The possible Transactions are defined in Section 8.1 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 Digital Asset 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 stable coin;

User(s) means any natural person who completes the Tier 1 (as defined in the Privacy Notice) of the KYC Process as defined in Section 10 of the Terms. The User is referred to as “You” and/or “you” and/or as “Your” and/or “your” when indicating the possession of something within the Terms;

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 Digital Assets and Fiat Assets; ii. Exchange between one or more forms of Digital Assets; iii. Transfer of Digital Assets; iv. Safekeeping and/or administration of Digital Assets or instruments enabling control over Digital Assets and participation in, and provision of financial services related to an issuer’s offer and/or sale of a Digital Assets;

Digital Asset means a digital representation of value that can be digitally traded, or transferred, and can be used for payment or investment purposes. Digital Assets do not include digital representations of Fiat Currencies, securities and other financial assets

Digital Asset Wallet means the wallet designated to support the holding of Digital Assets by the Company in the name of the User;

Wallet means digital wallets available to Users on their User Account, including Fiat Wallet and Digital Assets 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 Digital Assets and/or Fiat Assets from the Digital Asset Wallet or Fiat Wallet, thereby instructing the Company to return Assets to you in an External Wallet and/or Bank Account;

Yield(s) refers to the Digital Assets received as a result of transferring your Digital Assets to Protocol(s) or centralized finance platform(s) through your subscription to the Yield Service. 

Yield Gateway(s) refers to the third-party that operates a Yield Service giving access to Protocol(s) and/or centralized finance platforms;

Yield Service(s) means the services available to User(s) of the App through which the Users can access Protocol(s) and/or centralized finance platform(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:

1. Bitfinex; 
2. Binance;
3. HitBTC;
4. Kraken;
5. Lmax;
6. Orca;
7. Phoenix;
8. Raydium.
9. Meteora

ANNEX 4 - FIAT ASSETS SUPPORTED IN THE APP

• The list of Fiat Assets supported in the App can be found at the following link : https://swissborg.com/supported-assets.

ANNEX 5 – THIRD PARTY SERVICE PROVIDERS

The below list is for information purposes only and is by no means exhaustive:

1. Checkout.com 
2. Curv;
3. Fireblocks;
4. Onfido;
5. OpenPayd. 

ANNEX 6 – RISKS

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):

• Through the use of Digital Assets, risks and losses can be substantial and may occur over a short period of time;
• Digital Assets are generally not legal tender, and are not backed by a central bank, government or, in general, legal entities. This may increase price volatility of such Digital Assets and exposes investors to a heightened risk of loss which may include the entire value of their investment in a Digital Assets;
• Legislative and regulatory changes or actions, both domestically and internationally, may adversely affect the use, transfer, exchange and value of Digital Assets; 
• Regulation of blockchain networks and Digital Assets is nascent but is likely to evolve significantly. The form of regulatory evolution is uncertain and may vary significantly across jurisdictions. New laws and regulations may inhibit the development and growth of blockchain networks and the adoption and use of Digital Assets which may have a material adverse impact on the value and liquidity of Digital Assets;
• The value of Digital Assets is highly dependent on public perception (bubbles, whether rational or irrational, loss of confidence). Variations in the latter may result in collapse in demand and thus losses.  SwissBorg cannot warrant that the value of Digital Assets, including BORG, supported by the App will not fall or collapse based on public perception, frauds, regulatory enforcement or market manipulation, fake news or any social media communication or any other event  that is not relevant to SwissBorg.
• Blockchains underlying Digital Assets may “fork”, and we may not support the forked Digital Assets promptly or at all. The occurrence of a fork would result in multiple versions of the blockchain network running in parallel, but with each version of Digital Asset, lacking interchangeability which may negatively impact the value and liquidity of such Digital Assets;
• Transactions in Digital Assets are irreversible, and accordingly, losses due to fraudulent, hacked or accidental transactions will not be recoverable;
• Some Digital Asset transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you, or any other person, initiate the transaction;
• Digital Assets in each address are controlled by the private key of the holder of the address. If the private key is compromised or lost, the Digital Assets in that address may be stolen or lost and otherwise unrecoverable;
• Specific attacks are aimed at  de-anonymizing addresses (for instance, dusting attacks) or otherwise compromising the security offered by the private key. 
• Digital Assets may rely on source code which may contain flaws, bugs, defects or inconsistencies which could compromise the predictability, usability, functionality, stability and security of such Digital Assets. In addition, source code modifications or updates may lead to unexpected or unintended outcomes which may adversely affect the utility or functionality of the Services or other Digital Assets;
• Blockchain networks underlying Digital Assets may face governance issues which may significantly impact the market price of a Digital Asset.

The Company does not own, govern, or control the underlying software protocols of blockchain networks that govern the operation of Digital Assets. 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 Digital Assets 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 Digital Assets. 

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 Digital Assets.

Since blockchain is an independent public peer-to peer network and is not controlled in any way or manner by SwissBorg, SwissBorg shall not be responsible for any failure and/or mistake and/or error and/or breach which shall occur in blockchain protocols or in any networks in which the Digital Assets are being issued and/or traded. You will be bound and subject to any change and/or amendments in the blockchain system and subject to any applicable law  or regulation which may apply to the blockchain. We make no representation or warranty of any kind, express or implied, statutory or otherwise, regarding the blockchain functionality nor for any breach of security in the blockchain or in any blockchain protocol.

b. Risks related to Protocols

The Company does not own or control the underlying software Protocols and/or centralized finance platforms which govern the operation of Digital Assets available on the App and/or which are interfaced with the Yield Service. 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 Protocols and/or centralized finance platforms and makes no guarantee of their functionality, security, or availability. The underlying Protocols and/or centralized finance platforms are subject to sudden changes in operating rules, and such changes may materially affect the value, function, and/or even the name of the Digital Assets.

c. Trading risks

Digital Asset markets are decentralised and non-regulated, the Services are unregulated services which are not governed by any specific Swiss or European regulatory framework (including MIFID / FinSA / FinIA). This means that there is no central bank or regulator that can take corrective measures to protect the value of Digital Assets in a crisis or issue more currency. Therefore, Users will not benefit from the protections available to clients receiving regulated investment services.

DIGITAL ASSETS’ MARKETS ARE DETERMINED BY DEMAND AND SUPPLY ONLY. The Digital Assets’ market is a dynamic arena and its respective prices are often highly unpredictable and volatile. The Digital Assets’ prices are usually not transparent, highly speculative and susceptible to market manipulation. In the worst-case scenario, the product could be rendered worthless.

It is important to make a distinction between indicative prices which are displayed on charts and dealable prices which are displayed on the App. Indicative quotes only give an indication of where the market is. Because Digital Assets markets are decentralised, meaning they lack a single central exchange where all transactions are conducted, any prices displayed on any chart made available by the Company or by a third party will only reflect “indicative” prices and not necessarily actual “dealing” prices where trades can be executed.

Digital Assets trading is prone to being misused for illegal activities due to the anonymity of transactions and investors would be adversely affected if law enforcement agencies were to investigate any alleged illicit activities.

ACCORDINGLY, DIGITAL ASSETS SHOULD BE SEEN AS AN EXTREMELY HIGH-RISK ASSET AND YOU SHOULD NEVER INVEST FUNDS THAT YOU CANNOT AFFORD TO LOSE.

Given the foregoing, Digital Assets are not appropriate for all investors. You should not deal in these products unless you have the necessary knowledge and expertise, understand these products’ characteristics and your exposure to risk. You should also be satisfied that the product is suitable for you in light of your circumstances and financial position. In addition, use of our Services can never be considered a safe investment, rather, only an investment with a high risk of loss inherently associated with them.

The risk of loss in trading Digital Assets can be substantial. You should, therefore, carefully consider whether such trading is suitable for you in light of your circumstances and financial resources. You should be aware that you may sustain a total loss of the funds in your account.  

Under certain market conditions, you may find it difficult or impossible to liquidate a position. This can occur, for example, when the market reaches a daily price fluctuation limit (“limit move”), if there is insufficient liquidity in the market.

d. Third-party Risks

We may elect to execute any Order and/or hold any Fiat Assets and Digital Assets via a Third Party Exchange, Protocols or centralized finance platforms (“Third Parties”). Such Third Parties are not banks entitled to hold Fiat Assets/Digital Assets as deposits. If any such Third Party loses any Digital Asset, fails or goes out of business, there is no specific legal protection or claim that covers you for losses arising from any Digital Asset you may have transferred to such a Third Party, even when such party is registered with a national authority. Depending on the structure and security of the Third Party Exchange, their wallets may be vulnerable to hacks, resulting in the theft of Digital Assets. The Company will not be responsible in the event of losses caused by those Third Parties.

If at any time any of the Digital Assets being the subject of your Order are delisted by Third Parties and/or we no longer support the trading of such Digital Assets for any reason, then the applicable Order will be immediately closed and will not be executed.  

e. Volatility Risks and Financial Losses

By using this App, You acknowledge and understand the purpose and complexity of Digital Assets, 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 can bear any losses that may arise from your trading activity. You should not rely on being able to generate profits 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 Digital Assets 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 Digital Assets 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 Digital Assets 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 Digital Assets and/or Fiat Assets; (iii) the perception of the success and impact of Digital Assets 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 Digital Assets and/or Fiat Assets; (vi) the (il)liquidity of the market for Digital Assets and/or Fiat Assets; (vii) new laws or regulations or changes in interpretations of existing laws and regulations affecting the Digital Assets 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 Digital Assets and/or Fiat Assets market; (x) expiration of any lock-up undertakings related to the Digital Assets 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 Locking period for the benefits incurred by a Premium Account.

The price and liquidity of Digital Assets 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. Digital Assets are relatively new products and technologies and their acceptance as a form of payment remains limited. In addition, a significant proportion of demand for Digital Assets may be generated by speculators seeking returns based on price volatility. As a result, Digital Assets are highly susceptible to a wide range of external factors which may have a disproportionately negative impact on the value of such Digital Assets 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 Digital Assets and/or Fiat Assets is influenced by a broad array of factors and can change rapidly and unexpectedly, meaning the value of those Digital Assets and/or Fiat Assets, and your related profits and losses on your Assets, can also change rapidly and unexpectedly. 

Amongst other things, prices of Digital Assets and/or Fiat Assets can be subject to gapping (where the price of the Digital Assets and/or Fiat Assets opens significantly above or below the previous day’s closing price) and slippage (where the price the Digital Assets 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 Digital Assets 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 Digital Assets 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 Digital Assets and/or Fiat Assets may result in a negative impact on the Digital Assets and/or Fiat Assets offered by the Exchanges interfaced to the Execution Interface.

f. Risks related to Exchanges  

The Company cannot ensure that an active and liquid trading market for Digital Assets and/or Fiat Assets will exist and that the Market Prices presented for Digital Assets 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 Digital Assets 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 Digital Assets 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 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, Digital Assets and/or Fiat Assets could be subject to considerable fluctuations in value and Market Price and that the Digital Assets and/or Fiat Assets can therefore also exhibit increased or high volatility. 

This also concerns the future development of the Digital Assets and/or Fiat Assets and the exchange rate at which the Digital Assets and/or Fiat Assets could possibly be exchanged into other Digital Assets and/or Fiat Assets in the future. A forecast of the future performance of the Digital Assets 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. No statements will be made regarding how much liquidity is available or could become available for the Digital Assets. Therefore, 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 Digital Assets exhibited by Exchanges will not decline below the Transaction Price or that (iii) other individuals in the market will be able to sell their Digital Assets 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 Digital Assets 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 Digital Assets 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 Digital Assets, 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 Digital Assets.

Further, developments in, and changes to recommendations by analysts regarding the Digital Assets and/or Fiat Assets market may also affect the Market Price of Digital Assets, and/or Fiat Assets. Any such market fluctuations may adversely affect the Market Price of Digital Assets 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 Digital Assets will be treated under the law of the country from where the Digital Asset 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 Digital Asset 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 Digital Asset and/or Fiat Assets on an Exchange, including but not limited to Security Breaches.  By using the App, you hereby confirm that you are aware of those risks related to Exchanges and that you accept to take them and hold the Company, any Related Entity and directors, consultants or employees free from any liability in the event of loss of your Assets held on Exchanges on your behalf.

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, Digital Assets 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 Digital Assets to another account. Since Digital Asset transactions are irreversible, this could be a problem.

The Company cannot give any assurance that the Digital Assets 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 Digital Assets 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 Digital Assets which either originate from sanctioned or black-listed countries or which were purchased using illicit funds before being made available on the Exchanges.

g. Risks associated to the Yield Service and/or Protocols

YOU UNDERSTAND THAT THE COMPANY, THROUGH THE APP, SOLELY ACTS AS A TECHNOLOGY PROVIDER WITH RESPECT TO THE YIELD SERVICE. THEREFORE, ANY LOSSES WHICH MAY BE INCURRED BY THE USER FROM THE USE OF THE YIELD SERVICE ALLOWING YOU TO PARTICIPATE IN PROTOCOLS AND/OR CENTRALIZED FINANCE PLATFORMS  OPERATED BY THIRD PARTIES ARE SOLELY THE RESPONSIBILITY OF THE PROTOCOLS AND/OR CENTRALIZED FINANCE PLATFORMS.  

The Company does not own or control any of the smart contracts or wallets’ underlying source code of Protocols and/or centralized finance platforms.   

There are risks of cyber threats or hacks when placing the Digital Assets into Protocols and/or centralized finance platforms using the Yield Service, which may lead to losses or damages since Protocols and/or centralized finance platforms are based on smart contracts. Protocols and/or centralized finance platforms and/or underlying smart contracts and/or wallets may be hacked and/or controlled by hackers which may take control over Digital Assets transferred to Protocols and/or centralized finance platforms. If this happens, Protocols and/or centralized finance platforms will not be in a position to refund the Users.

The underlying Protocols and/or centralized finance platforms are also subject to security breaches with may cause rug pulls of Digital Asset and, ultimately, result in losses of Digital Assets placed in the Yield Service.

Protocols and/or centralized finance platforms are generally not operated by a central entity but respond to a decentralized governance. Therefore, there are significant counterparty risks when placing your Digital Assets into the Protocol(s) and/or centralized finance platforms using the Yield Service.

There is no warranty that the Protocols and/or centralized finance platforms are covered by an insurance policy or insurance scheme. The Company does not guarantee that  the Digital Assets which are subscribed to Protocols and/or centralized finance platforms are secure at all times. There is, therefore, an important counterparty risk when placing Digital Assets into Protocols and/or centralized finance platforms.

Since it only acts as a technology provider allowing Users to benefit from the Yield Service, the Company does not constantly check the creditworthiness of the Protocols and/or centralized finance platforms. The Company excludes all liability risks of default or any other risk other than contractual risk. There is a potential risk that, like any organisation, the operations may not continue indefinitely or may not be able to pay the Yield. There is no guarantee that the Digital Assets subscribed to the Protocols and/or centralized finance platforms shall be held separately from their operational funds. The Company does not guarantee that the Protocols and/or centralized finance platforms will hold the funds segregated and it cannot guarantee what occurs with the funds. 

The regulatory status of the Yield Service is currently unsettled. It is possible that in the future, certain laws, regulations, policies, or rules relating to the Protocols and/or centralized finance platforms’ business models or operations may be implemented, which would directly or indirectly affect or restrict the Yield Service on the App.   

The tax treatment of Yields or Rewards in your jurisdiction is not the responsibility of the Company. You are solely responsible for taking advice by a tax specialist in order to assess how Yields or Rewards must be declared and will be taxed in your jurisdiction. h. Liquidity Risks

The Fiat Assets or Digital Assets 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.

i. 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. 

j. 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 wallet infrastructure provided by a Third Party Service Provider, 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 any Third-Party Service Provider.

Code/password 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 Digital Assets. The Company cannot warrant that your password will not be phished or cracked by third party. In such event, the Company shall in no event be responsible for your losses. You should never communicate your password to third parties and/or save your password on computers or servers which are not fully secured.

The source code underlying the App, the Execution Interface, the Exchanges to which the Execution Interface is interfaced and the source code underlying the Digital Asset 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 Digital Asset.

The Company and/or Related Entities do not own or control the underlying software protocols which govern the operation of Digital Assets 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 Digital Assets are being issued and/or traded.

The Company may, in the event of a fork, freeze the exchanging of the Digital Assets 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 Digital Asset 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 Digital Asset. 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 Digital Assets 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 Company, Fiat Custodian and any Third-Party Service Provider 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 since the Company does not hold the Assets itself. 

ALSO, BY USING THE APP, YOU HEREBY UNDERSTAND AND ACKNOWLEDGE THAT ANY DIGITAL ASSETS 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 DIGITAL ASSETS.

k. 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 Digital Assets, Exchanges, Yield Service, Protocols and/or centralized finance platforms 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 and/or by the Fiat 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 BORG.     

To the extent that a domestic government or quasi-governmental agency exerts regulatory authority, a Digital Asset, including BORG, may be materially and adversely affected. Digital Assets also face an uncertain regulatory landscape in many jurisdictions. Various jurisdictions may, soon, adopt laws, regulations or directives that affect Digital Assets. 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 Digital Asset, the liquidity of the Digital Assets, the ability to access marketplaces or exchanges on which to trade the Digital Assets, and the structure, rights and transferability of Digital Assets 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 Digital Assets is uncertain and may result in adverse tax consequences. The use of Digital Assets 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 Digital Assets 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 Digital Assets placed by you at the Fiat Custodian and/or the Digital Assets Wallet are returned back to your External Wallet or Bank Account. The Company may charge you any fees (including but not limited to, Service Fees banking fees (Fiat Assets) or network fees (Digital Assets)) if your Assets must be returned back to your External Wallet or Bank Account. The Third-Party Service Providers and/or the Company 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. 

l. Reputational risks

A reputational risk of Digital Assets resulting from the wrongful behaviour of some actors, including Protocols and/or centralized finance platforms 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 Digital Assets available on the App.

m. Misrepresentation Risks

Digital Assets 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 Digital Asset. 

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 Digital Asset within an Exchange. If the Digital Asset 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 Digital Asset. 

n. Bridging Risks

In accordance with our internal Custody and Segregation Policy, there may be instances where a bridged version of a Digital Asset is listed on the App, rather than the native version of that Digital Asset. Bridged Digital Assets are digital tokens that are transferred from one blockchain to another using a process called "bridging." This process involves locking or burning the original assets on the source blockchain and minting equivalent tokens on the target blockchain. These bridged tokens represent the original assets and can be traded on the target blockchain. While supporting bridged Digital Assets aims to minimize custodial risks, bridging risks are not to be excluded. Such bridging risks may arise from smart contract vulnerabilities, cross-chain operational risks and liquidity issues. Furthermore, bridged Digital Assets are typically pegged to the value of their native versions and this peg may be broken due to various factors, such as market manipulation, technical issues, hacks or changes in demand and supply. A broken peg can result in significant price deviations between the bridged Digital Assets and the native version. The Company does not assume any responsibility for any and all risks that may arise from bridged Digital Assets available on the App.