These General Terms & Conditions (the “GTCs”) as well as the Digital Assets Risk Disclosure are an integral part of the Agreement and any other contractual arrangements (collectively “Agreement”) concluded between flov technologies AG (hereinafter “flovtec”) and a third party (“Client”). These GTCs apply to their full extent unless the Agreement between flovtec and the Client expressly and in writing provides otherwise
The Client understands, acknowledges and accepts that flovtec may update, modify or amend these GTCs by changing, adding and/or deleting provisions set forth herein. Such changes to the GTCs shall be posted online on the website or made available to the Client by other means of communication deemed appropriate by flovtec. Changes to these GTCs shall be governed by Section 13 of this Agreement.
2. Services performed
flovtec offers the following services to its Clients (the “Services”):
- Market Making Services
- Portfolio Management Services
Each service is further described in a separate agreement. These GTCs are applicable to the above-mentioned services as well as any other service flovtec may decide to offer. In case of conflict of provisions, the provision as set forth in the specific service agreement shall prevail.
flovtec may from time to time at its sole discretion decide to extend its service offering without prejudice to these GTCs and the Agreement.
3. Client onboarding and identification
The Client understands, acknowledges and accepts that he shall provide all the requested documents and information as required by AML regulation. Such documents and information shall inter alia allow flovtec to identify the beneficial owner of the assets.
The Client understands, acknowledges and accepts that he shall provide any other document or information which flovtec may deem necessary to comply with its duty derived from AML regulation or any other regulation that may apply.
The Client understands, acknowledges and accepts that he shall immediately inform flovtec of any changes of circumstances that may materially affect flovtec compliance with AML rules or any other regulatory obligations flovtec may be subject to.
Unless agreed otherwise, the Client understands, acknowledges and accepts that all communication shall be made by means of electronic communication (e-mail). flovtec may at its sole discretion decide to use other reasonable and reliable means of communication if it deems it appropriate.
The Client understands, acknowledges and accepts that flovtec may fully or partially outsource services or elements of its services either to group companies or to third party service providers. The outsourcing may concern existing services or services not yet provided. Parties providing outsourced services must agree in writing to be bound by the confidentiality and Data Protection provisions of this Agreement.
6. Confidential information
Throughout the duration of the Agreement and following the termination thereof, the Client and flovtec shall treat any information disclosed to them in connection with the Agreement as confidential (i.e., trade secrets, personal data, know-how, strategies, technologies).
Confidential information shall not include information and data that:
- is or becomes publicly available other than by a breach of the Agreement;
- is known by the receiving party prior to the date of the Agreement; and
- either party discloses to any person or entity without confidentiality restrictions.
Notwithstanding the above, either party shall be entitled to disclose information and data if required by:
- any statutory or regulatory provision;
- any decision of a court or public authority;
- the need to safeguard own interests in relation to their insurers or legal advisors.
Either party may also disclose confidential information and data within its group and store such confidential information and data on servers of third-party service providers.
7. Data Protection
Both flovtec and the Client shall comply with the provisions of the Federal Act on Data Protection (“FADP”) at all times. flovtec shall process and use the personal data transmitted by the Client for contractual reasons only to the extent necessary for the completion of the tasks of the Agreement.
The Client represents and warrants that all personal data provided to flovtec has been and will be provided in accordance with applicable laws and regulations. The Client shall ensure that any personal data that the Client provides to flovtec is accurate and up to date and the Client shall notify flovtec if he becomes aware that any such data is no longer accurate or up to date.
8. Representations and Warranties
flovtec shall use reasonable efforts and care in the provision of the agreed services and deliverables of the Agreement. flovtec neither promises nor guarantees that it can list or keep digital assets listed on any exchange or platform. flovtec provides no warranty as to the ultimate performance of the digital assets and makes no representation that they will achieve targeted volumes.
Each party represents and warrants, as of the Effective Date, and throughout the term of this agreement, that it is duly organized, validly existing and in good standing under the laws of the party's country of organization, and the individual(s) signing this Agreement on behalf of the party has(have) been duly authorized by the party and or by law to do so.
The parties warrant that they follow best market practices and restrain from activities that are or might be seen in the future by the law as market manipulation, insider trading or any other illegitimate activities and that they inform each other in cases where these best market practices might be in danger of being compromised or if there is or might be a breach.
The Client represents and warrants that he has been duly informed that flovtec does not hold a securities firm license and that it does not performs any securities firm activities as defined under art. 41 of the Swiss Federal Act on Financial Institutions.
9. Risk Factors
Digital assets can be subject to significant changes of value and thus have a high volatility due to the underlying technology and infrastructure and high speculation of the market participants. A potential increase or loss of value is very common. In contrast with other currencies or commodities such as gold, the volatility risk is elevated also due to the lack of historical price data and the incapacity to draw market tendencies derived from such data. Hence, the forecast of the exchange rate of digital assets is highly speculative.
New technologies and digital assets generally lack use cases and best practices have yet to be determined and put into practice. In the future, changes will affect the technology even more and security risks might increase. Based on open-source software, digital assets are dependent on decentralized and unregulated development of technology. flovtec does not have any control over changes that may occur due to their decentralized nature. As a result, no identified counterparty bears the responsibility to keep the software operational and can be held accountable for its failure. Resolution of conflict or malfunction of the software is thus very limited. There is a possibility for unacknowledged/hidden centralization of power, which can jeopardize, paralyze, or delay critical decisions. Exposure to fraud and cyber-crime is high.
The lack of a central entity which could improve the development of the underlying technology, leads to a bigger dependence on the collaboration of different stakeholders and developers. As a result of free access to the open-source software, anyone may use it, modify it for their own purposes (“forking”). Digital assets have the inherent risk of forking, which can lead to a split of the blockchain. Each chain-split is more prone to an attack as it is easier to influence the validation mechanisms by taking over most of the network. Furthermore, trading with digital assets might be delayed or suspended due to forks or attacks such a Denial-of-Services (“DoS”). This might lead to the inability or deferral of processing transactions.
Digital assets are dematerialized assets. Transactions can be done pseudonymously and/or anonymously and are irreversible. They are thus an attractive target for cyber-attacks, scams, thefts and frauds. Hackers can identify weaknesses and take control over a network which might lead to total loss of the digital assets. These threats prevent recognition and mass adoption of digital assets.
Digital assets are a relatively new phenomenon and authorities in Switzerland and abroad have already started taking actions in this space. New regulations regarding money laundering, consumer and data protection, taxes and capital requirements have already been put in place in Switzerland. Authorities may take regulatory actions against certain activities in connection with digital assets. Furthermore, enhanced requirements regarding control mechanisms are likely to increase the costs of transactions. The Client bears the risk for the uncertain regulatory environment which influences the holding or dealing with digital assets.
Even though certain countries or jurisdictions accept digital assets as means of payment, they still do not count as legal tender, as they are not issued by a sovereign state or its central bank. Therefore, the governments and authorities can not intervene in stabilising the price development of digital assets.
There are several reasons for which digital assets are susceptible to lose value and trust from investors. Their value may collapse as a result of irrational bubbles and/or lack of interest/confidence in the underlying technology. A collapse of value may also occur as a result of a scam, theft or attack on a digital asset.
Investments in digital assets are considered highly speculative due to their high volatility, the unpredictability of exchange rates and daily market volume.
The Client acknowledges, recognises and accepts that he bears the entire risks derived from using flovtec services.
Without prejudice to other provisions as set in the Agreement, flovtec may only be held liable for wilful intent and gross negligence. To the extent permitted by applicable law, any liability for indirect or consequential damages or lost profits or loss of opportunity are explicitly excluded.
In particular, flovtec shall not be held liable for losses caused by abnormal and unforeseeable circumstances beyond the control of flovtec, such as but no limited to losses caused by an interruption or an unavailability of electronic systems or other technological infrastructure of flovtec (e.g. in case of a fire or similar events, power or system breakdowns or malicious intrusions in flovtec’s systems).
flovtec shall not be held liable for losses resulting from but not limited to flovtec’s necessity to comply with legal or regulatory provisions, declared or imminent measures taken by public authorities, market deterioration, acts of war, riots, civil war, strike or lock-out, sanitary and other crisis, shot downs, electricity shortages, breakdown of the internet and systems and other external factors which cannot be foreseen.
All risk factors mentioned in section 5 and in the Digital Assets Risk Disclosure shall entirely be borne by the Client. For the avoidance of doubt, the limitation or exclusion of liability as set out above shall not include wilful intent or gross negligence.
During the term of the Agreement and following its termination, the Client should hold harmless and indemnify flovtec and its directors, officers, employees and agents from and against all actions, proceedings, claims, costs, demands and expenses which may be brought against or suffered or incurred by flovtec by reason of its performance of its obligations and services pursuant to the Agreement, except in circumstances involving gross negligence, fraud or criminal conduct from flovtec.
No person shall be found to have committed actual fraud or wilful default under the Agreement unless or until a court of competent jurisdiction shall have issued a final ruling.
flovtec holds no responsibility for changes in the law, or in interpretations of the law, occurring subsequent to the date on which the Service is delivered to the Client.
11. Conflicts of Interest
flovtec has put in place appropriate internal organizational measures to avoid conflicts of interest with the Client and between clients with respect to the provision of its services. Where this is not possible, flovtec shall disclose in writing such conflicts of interest to affected Clients.
12. Intellectual Property
flovtec owns all the intellectual property rights, including and without limitation, copyrights in all systems, techniques, methodologies, ideas, concepts, information, know-how, including of the Software, strategies and reports developed during flovtec’s performance of this Agreement.
flovtec may develop software, systems, techniques, methodologies, ideas, concepts, information, know-how, strategies and reports for other clients and may use them for other clients.
13. Amendments to these GTCs
flovtec may at its sole discretion amend these GTCs from time to time for objective reasons. The Client shall be notified of such amendments in a timely manner. The amendments shall be deemed accepted by the Client unless he objects in writing or by any other form that constitutes a proof through text within 30 days of their communication. If the Client objects to such amendment, he/she may terminate the agreement within the termination period. Until termination of the agreement, the former text shall remain applicable.
14. Governing law and jurisdiction
The Agreement shall be governed and construed in accordance with the laws of Switzerland, by disregarding any provisions related to conflicts of laws.
All disputes arising out of or in connection with this Agreement shall be judged exclusively by the competent court in Zug, Switzerland, subject to appeal (including appeal to the Swiss Federal Supreme Court) as provided by laws. Disputes may not be maintained anywhere else. Parties may participate in dispute resolution proceedings remotely by using electronic communication technologies acceptable to the court.