Terms of Service

Our Terms of Service contain these three parts:
1.​General Terms and Conditions​
2.​Special Conditions governing Transactions in Cryptographic Assets​
3.​Custody Agreement for Crypto Currency Services​
I. General Terms and Conditions
1. SCOPE OF APPLICATION, TERMS, AND CONDITIONS OF THIRD PARTIES AND CONTRACTING PARTY
These General Terms and Conditions (“Swarm Markets T&Cs“) apply to all services and the software provided within the scope of the contractual relationship (“Swarm Markets Contract“) between Swarm Markets GmbH (“Swarm Markets“) with its current address and the commercial register data according to the imprint on the website www.swarm.markets, its subpage, the web application under trade.swarm.markets (“Swarm Markets Web Application“), or any mobile application (Swarm Markets-Web-Application, mobile application and website together “Platform“) as a service provider and the sole proprietor or business entity as customer (“Customer“) with all contents, functions, services and rules (“Swarm Markets Services“, a service or software as a service, each a “Swarm Markets Service“). General Terms and Conditions of the Customer will only become a part of the Swarm Markets Contract if Swarm Markets expressly consents and approves this in writing.
With regards to the contract (“Account Contract“) between the Customer and Swarm Markets necessary for the establishment and use of the Account with the respective range of services (“Account“) as well as the other services provided by Swarm Markets, the General Terms and Conditions of Swarm Markets, agreed separately between the Customer and Swarm Markets, shall apply:
​General Terms and Conditions of Swarm Markets​
The use of the Swarm Markets Services provided by Swarm Markets is subject to this Swarm Markets T&Cs. For additionally provided services (“Partner Services“) of other regulated and non-regulated third party providers (such as other online and mobile banking service providers, each a “Partner“, whereby Swarm Markets is not a Partner in the sense of this definition) – if a separate contractual relationship of the Customer with the respective Partner is required – again the terms of use and other contractual conditions separately agreed by the Customer with the respective Partner, including the General Terms and Conditions of these Partners (each a “Partner Agreement“), shall apply. Regardless of the afore mentioned, between the Customer and Swarm Markets, the Customer’s consent to Swarm Markets’ current prices and services list is required (if applicable, including a change in the Customer’s pricing plan).
Customers can only be sole proprietors and businesses within the meaning of § 14 of the German Civil Code ("BGB"). The Swarm Markets T&Cs do not apply to consumers in the sense of § 13 BGB. Further restrictions (e.g. regarding the legal form, the commercial register entry or the country of origin of the Customer) may result from regulatory requirements and business policy considerations of Swarm Markets or other Partners.
2. SUBJECT MATTER OF THE CONTRACT
The subject of the Swarm Markets Contract is the use of Swarm Markets Services. Through Swarm Markets, the Customer opens an Account with Swarm Markets. Swarm Markets provides the Customer with access to the Account and to the Partner Services via the application provided by Swarm Markets. A detailed overview of the Swarm Markets Services and the respective fees charged can be found in Swarm Markets’s current prices and services list (“Prices and Services List“) to which the Swarm Markets T&Cs apply in full as part of the Swarm Markets Contract.
Swarm Markets provides against payment, inter alia, the technical requirements for and other services in connection with the Account and access to other regulated Partner Services of banking institutions as well as financial and payment service providers as a technical service provider within the meaning of Section 2 (1) no. 9 of the German Payment Services Supervision Act (ZAG) via access points, integrations and interfaces (inter alia, so-called APIs), which are provided by the respective institution or service provider.
3. SCOPE OF SERVICES
Swarm Markets owes to the Customer only those Swarm Markets Services which are listed as Swarm Markets Services in the, at the relevant time, current Prices and Services List. Swarm Markets does not conduct any banking business and does not provide any financial or payment services as defined in the German Banking Act (KWG) or the German Payment Services Supervision Act (ZAG). Moreover, Swarm Markets does not provide foreign currency exchange services.
Swarm Markets will use best efforts to provide an unrestricted use and availability of the Swarm Markets Services, but Swarm Markets cannot guarantee such use and availability. Swarm Markets is obliged to ensure an annual average of 99% with regards to the usability and availability of the Swarm Markets Services (“Service Level“).
The provided Swarm Markets Services are also in accordance with the Swarm Markets Contract, as far as the service level is reduced by a maximum of 1% on an annual average basis and the use or availability of the Swarm Markets Services is limited by:
repair, update or maintenance work on the Swarm Markets website; or
circumstances beyond Swarm Markets’s control, in particular all actions of third parties not acting on behalf of Swarm Markets (whereby Swarm Markets and the Partners are not such third parties) and the availability of technical internet functions which Swarm Markets cannot influence.
4. CONTRACTUAL RELATIONSHIP WITH SWARM MARKETS
The opening and use of the Account is a prerequisite for the use of Swarm Markets Services.
The use of the Swarm Markets Services requires the execution of an Account Contract. This Account Contract is concluded directly between Swarm Markets and the Customer. Under the Account Contract, Swarm Markets undertakes in particular to set up the Account for the Customer, to credit incoming payments to the Account, to process transfer orders to the debit of the Account and to issue one or more debit cards to the Customer. The Account shall be managed as a current account by Swarm Markets.
5. CONTRACTUAL RELATIONS WITH PARTNERS
Swarm Markets is using partners for delivering its services and those partners may also be entitled to receiving payments for the services rendered to the Customer by the Partner in its own name and on its own account. This applies for instance to Swarm Markets GmbH.
Paragraph 5 applies accordingly to all other Partners who provide Partner Services to the Customer via Swarm Markets Services.
The use of the Swarm Markets Services is unrestricted and still possible after the termination of a Partner Agreement or several Partner Agreements or all Partner Agreements.
6. CONCLUSION OF CONTRACT
The Customer submits, directly or through its legal representative, an application to Swarm Markets for the conclusion of the Swarm Markets Contract by creating a user account on the Platform, selecting a Swarm Markets pricing plan according to the Prices and Services List and accepting the Swarm Markets T&Cs (“Offer“). For the user account, the Customer provides its e-mail address and a password in addition to the master data (“Access Credentials“).
Swarm Markets accepts the Customer’s Offer subject to the conditions precedent that (i) Customer has entered into an Account Contract with Swarm Markets and (ii) Customer’s Account has been opened (“Conditions Precedent“). For the conclusion of the Account Contract with the Customer, Swarm Markets conducts a verification in accordance with regulatory and legal requirements (“Regulatory Check“). In the course of the Regulatory Check, Swarm Markets verifies, among other things, the identity of the Customer and its legal representatives. For the Regulatory Check, the Customer shall provide further information and submit documents during the registration process. In simple cases, the Regulatory Check usually takes two working days from the time when the Customer submits all necessary information and documents in a complete, correct and clear manner; otherwise, however, it may take longer.
As soon as the Conditions Precedent have been fulfilled and, on that basis, the Swarm Markets Contract between the Customer and Swarm Markets has been concluded, Swarm Markets will notify the Customer by e-mail that the Account is now operational.
With regards to further Partner Services (not yet offered and only offered from a future date onwards), Swarm Markets will inform the Customer timely in an appropriate form about their content and any requirements to accept the general terms and conditions of the relevant Partner. Details of the conditions and requirements of the Partner Services can be found in the respective Partner Agreements. The Partner Agreements are beyond Swarm Markets’s control.
7. COMMUNICATION AND MODIFICATION OF INFORMATION
Except as otherwise provided in the Swarm Markets T&Cs, e.g. for the conclusion of a contract pursuant to clause 6.1 and notices of termination pursuant to clauses 12.2 and 12.3, the communication channels accepted by Swarm Markets for contact by the Customer are the Swarm Markets telephone hotline, e-mails and the chat within the Swarm Markets Web Application. Swarm Markets reserves the right to contact the Customer by other means or through other channels.
Master data can be changed either by sending an e-mail or letter to Swarm Markets or within the Swarm Markets Web Application. If necessary, these changes may require another verification process.
For the activation of further online banking users of the Customer (e.g. for employees), further authentication procedures are required, which are in particular based on the specifications and requirements of Swarm Markets and/or the respective Partner concerned.
A termination of the Account Contract and the order to close the Account as well as the cancellation of the Partner Agreements shall be sent to the customer service of Swarm Markets by the Customer. Swarm Markets will inform the Partners accordingly and forward the Customer’s declarations.
8. DATA PROTECTION AND DATA RETRIEVAL
Swarm Markets undertakes to protect customer data at all times by appropriate and state of the art measures and to disclose personal data of the Customer and its online banking users only for legal reasons, especially if required for the fulfillment of the Swarm Markets Contract or if the Customer has consented thereto.
A technical measure in the sense of clause 8.1 is that Swarm Markets transmits data, in particular account information, exclusively in encrypted form. Additionally, Swarm Markets uses other suitable and secure procedures to enable the Customer to retrieve necessary financial information and to transmit requests (e.g. TAN procedure, 2FA).
Details on the handling of personal data, data protection, and data security are described in detail in Swarm Markets’ privacy policy (“Privacy Policy“). Data is transmitted via a secure and encrypted internet connection. For the regular exchange of data, Swarm Markets has concluded an agreement on joint responsibility for data processing in accordance with Art. 26 of the German General Data Protection Regulation (GDPR) with Partners.
For the processing of the Customer’s data by Partners, the data protection declaration of the respective Partner shall apply.
If technical or legal conditions change, Swarm Markets reserves the right to change the practice described in Swarm Markets’ General Terms and Conditions and its Privacy Policy. The Customer shall be informed of any changes in due time.
9. OBLIGATIONS OF THE CUSTOMER
The customer is responsible for the confidentiality and security of its Access Credentials. This means that the Access Credentials must be kept secret and must not be passed on. The customer is responsible for ensuring that third parties cannot obtain knowledge of the Access Credentials and must take the necessary measures to ensure confidentiality, in particular by using a secure password consisting of numbers, letters, and special characters and by changing the password at regular intervals.
As part of its duty of care, the Customer shall ensure that the Customer can be reached at the e-mail address provided by it from the time of registration onwards. Any misuse of the Swarm Markets Services or the Account, suspicion thereof or loss of the Access Credentials must be reported by the Customer to Swarm Markets immediately in text form (e.g. by e-mail or in the Swarm Markets Web Application).
Furthermore, the Customer is responsible for taking appropriate precautions (on a regular basis and in accordance with the risks involved) to secure the data and contents entered, uploaded and stored in the course of its use of the Swarm Markets Services or the Account as well as to create its own backup copies in order to ensure the reconstruction of the data and information in case of loss.
If further online banking users of the Customer are activated (e.g. for employees), the Customer is responsible for the behavior of these further users as if the Customer or its legal representative had acted itself.
The customer must respond immediately to inquiries by Swarm Markets and/or the Partners.
The availability of Swarm Markets Services is dependent on internet access. The Customer is solely responsible for ensuring that the necessary system requirements are met in order to use the Swarm Markets Services. If the Customer uses services of third parties (especially scraping software and add-ons), the Customer is responsible for ensuring that these do not impair the Swarm Markets Services. In this respect, Swarm Markets does not guarantee compatibility and is not liable for any damages resulting from the use of such services.
10. RELEASE FROM LIABILITY
The Customer indemnifies Swarm Markets against all claims, including any claims for damages, asserted by other customers or other third parties, including governmental authorities, against Swarm Markets for any infringement of rights resulting from the Customer’s use of the Swarm Markets Services. The Customer is liable for any costs, including legal costs, incurred by Swarm Markets due to an infringement of third-party rights by the Customer. All further rights and claims for damages of Swarm Markets remain unaffected. The above obligations shall only apply to the extent that the Customer is responsible for the infringement in question.
11. LIMITATION OF THE OFFER
Swarm Markets is entitled to take appropriate measures to prevent damages and to ensure the availability of the Swarm Markets Services. This applies in particular if the Customer violates its contractual obligations. Such measures may include the partial or complete restriction of access to the Swarm Markets Services, especially with regards to the possibility of card payments or transfer orders.
Swarm Markets is also entitled to restrict the Swarm Markets Services in whole or in parts if the Customer fails to pay any fees due. Swarm Markets has no influence on the restrictions of services imposed by Partner Services.
12. DURATION AND TERMINATION OF THE SWARM MARKETS CONTRACT
Unless otherwise specified in the respective service description, the Swarm Markets Contract is concluded for an indefinite period of time.
The Customer may terminate the Swarm Markets Contract by giving five (5) business days’ written notice towards the end of the month. For this purpose, an e-mail to Swarm Markets with the scanned, wet-signed termination notice as an attachment is sufficient.
Swarm Markets may terminate the Swarm Markets Contract with a notice period of eight (8) weeks in text form. A termination by e-mail to the Customer is sufficient for this purpose. In case of such an ordinary termination, Swarm Markets is not obliged to give reasons.
The right to an extraordinary termination for good cause remains unaffected. An important reason in this sense is especially given if the Customer:
is more than one month in default with the payment of an entire fee, e.g. the monthly pricing plan; is repeatedly in default with considerable parts of fees despite a reminder or notice;
fails to provide Swarm Markets or its Partners with information required for regulatory reasons within a reasonable period of time despite being requested to do so;
the Customer uses the Swarm Markets Services for unfair business practices;
impairs Swarm Markets Services, in particular through the use of unauthorised software solutions, malicious software or attacks Swarm Markets’s infrastructure;
otherwise breaches essential contractual obligations or repeatedly breaches contractual obligations; or
endangers the claims and interests of Swarm Markets in such a way that Swarm Markets’s financial situation deteriorates substantially or is seriously endangered.
13. LIABILITY FOR DEFICIENCIES
With regard to the provision of software services (Software as a Service) by Partners under the Swarm Markets Services, the following applies:
In principle, the statutory regulations concerning warranty apply, unless Swarm Markets T&Cs contain deviating conditions.
Liability for the restriction of use and availability as a result of force majeure and lawful internal company industrial and strike action is excluded. The Customer’s right of termination under clause 12.2 remains unaffected.
The Customer’s right of set-off, reduction (reduction of fees according to section 536 of the German Civil Code (BGB)) and retention is excluded, unless the Customer asserts the aforementioned rights with legally binding or undisputed claims.
The application of section 536a para. 2 of the German Civil Code (BGB) (“Customer’s right of self-removal”) is excluded.
Also excluded is the application of section 536a para. 1 of the German Civil Code (BGB) (“Liability for damages of the provider“), to the extent this section provides for a liability independent of fault, unless it is a case of injury to life, body, health.
14. LIMITATION OF LIABILITY
Swarm Markets is liable on the merits and without contractual limitation only for damages suffered by the Customer:
which are based on an intentional or grossly negligent breach of duty by Swarm Markets or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of Swarm Markets,
from injury to life, body or health resulting from a negligent breach of duty by Swarm Markets or an intentional or negligent breach of duty by a legal representative or vicarious agent of Swarm Markets, as well as
within the scope of liability under the provisions of the German Product Liability Act (Produkthaftungsgesetz), guarantees granted to the Customer or due to fraudulent misrepresentation by Swarm Markets.
For damages resulting from a slightly negligent breach of an essential obligation, Swarm Markets’ liability is limited to the amount of damages that are foreseeable and typical for the type of business in question. Essential duties are duties whose violation endangers the achievement of the purpose of the contract or whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Customer regularly relies.
Any further liability of Swarm Markets is excluded.
Insofar as the liability of Swarm Markets is excluded or limited, this also applies to the personal liability of Swarm Markets’ employees, representatives, and vicarious agents as well as to tortious claims.
15. NO LIABILITY FOR THIRD PARTY PROVIDERS
Both Swarm Markets and the Partners act on the basis of a separate contractual relationship with the Customer. Swarm Markets does not assume any warranty or liability in this respect.
If Customer uses the services of Swarm Markets or Partner Services, this comes at the Customer’s own risk. Details can be found in the product descriptions of Swarm Markets and the Partners as well as in the terms of use provided by the Partner for the respective Partner Service.
16. LIMITATION PERIOD
The limitation period for all warranty rights of the Customer shall be 12 months unless Swarm Markets has a liability under clause 14.1., in which case apply the statutory provisions.
17. UNILATERAL AMENDMENTS TO THE TERMS AND CONDITIONS
Swarm Markets is entitled to make changes to the Swarm Markets T&Cs including the price and service specifications and other provisions of the Swarm Markets Contract which:
correct obvious errors or omissions;
represent descriptive provisions, insofar as the underlying circumstances have changed;
are intended for clarification purposes or are otherwise of an editorial nature; or are not disadvantageous to the customer in legal or factual terms. This includes in particular the introduction of further free Swarm Markets Services.
Swarm Markets will notify the Customer of such changes by e-mail.
18. OTHER AMENDMENTS TO THE SWARM MARKETS T&CS; FICTIONAL EXPLANATION
Swarm Markets will offer to the Customer any amendments to the Swarm Markets Contract other than those specified in clause 17 or elsewhere in the Swarm Markets T&Cs (including the Swarm Markets T&Cs and the Prices and Services List). If the Customer does not object within a period of 6 weeks, the changes will be considered as accepted. The receipt of the Customer’s objection notice by Swarm Markets is decisive for the compliance with the objection notice period by the Customer.
Swarm Markets will inform the Customer by e-mail about the new regulations and the date of their coming into force and will point out the objection notice period and the consequences of an expiration of the objection notice period. Upon receipt of this e-mail by the Customer, the objection notice period is initiated.
19. FEES AND PAYMENT PROCESSING
The obligation to pay the fees for Swarm Markets Services begins on the day on which Swarm Markets notifies the Customer of the validity of the Swarm Markets Contract in accordance with clause 6.3. The payment obligation ends with the expiration of the term of the Swarm Markets Contract (if applicable) or, in case of a termination, with the effectiveness of the termination according to clauses 12.2 to 12.4.
The fees for the respective Swarm Markets Services are listed and specified in detail in the Prices and Services List. Any additional fees for the Partner Services, if applicable, are set out in the respective Partner Agreements or the Partner’s Prices and Services List. The Customer will always be informed about any fees for Swarm Markets Services or Partner Services in connection with the respective activation of the relevant Swarm Markets Services or Partner Services. Swarm Markets collects the fees for Swarm Markets Services in principle in its own name and on its own account directly from the Customer’s Account by means of a direct debit procedure which must be set up after registration. Certain fees for Swarm Markets Services can be collected by the Partner from the Customer for the account of Swarm Markets. These fees and the respective Swarm Markets Services concerned are marked accordingly in the Prices and Services List. Unless otherwise expressly indicated on the invoice, Swarm Markets will invoice in its own name and on its own account. As far as Swarm Markets collects fees for the Partners, Swarm Markets is entitled to do so directly from the Account of the Customer by means of a direct debit system which has to be set up after registration. The Customer has to ensure that the Account is sufficiently funded. Any fees due will be collected at the beginning of the next month for the previous month.
The Customer agrees to receive invoices in electronic form (i.e. within the user interface of the Swarm Markets Web Application). The Customer is responsible for the proper storage of the invoices.
20. BONUS PROGRAMS AND CREDITS
Swarm Markets may, under certain circumstances, including but not limited to the referral of new customers, changes in pricing plans by Swarm Markets, goodwill or marketing promotions, grant the Customer a certain amount of bonus points or utility tokens (“Credits“) or any other types of credit.
Credits or any other types of credit have the value assigned to them. It is at Swarm Markets’ sole discretion to disburse such Credits or any other types of credit or to credit such Credits or any other types of credit to the Customer’s Account and thus to continuously (if necessary) offset them with future payment claims of Swarm Markets. There is no general entitlement to a disbursement of such Credits or any other types of credit. Upon termination of the Swarm Markets Contract, any such remaining non-disbursed Credits or any other types of credit shall expire.
The Customer is solely responsible for an adequate tax treatment or any potential taxation of such Credits or any other types of credit.
If the Customer provides Swarm Markets with the personal data of third parties as part of a referral program, the Customer is responsible to Swarm Markets for ensuring that the relevant third parties concerned have consented to the disclosure of their personal data.
21.TRANSFER OF RIGHTS AND OBLIGATIONS
The Customer may not assign or pledge any claims against Swarm Markets. This does not apply for monetary claims insofar as the conditions of section 354a of the German Commercial Code (HGB) are fulfilled. Swarm Markets may assign all claims against the Customer to third parties.
Swarm Markets may entrust third parties with the performance of its obligations under this contract. During the term of the contractual relationship, the Customer may neither lease the use of Swarm Markets Services to third parties nor use Swarm Markets Services for subletting, leasing, selling, mortgaging or otherwise making it subject of a transaction. An extraordinary termination pursuant to section 540 para. 1 sentence 2 of the German Civil Code (BGB) is excluded.
22. OTHER
The laws of the Federal Republic of Germany shall apply (under exclusion of the UN Convention on Contracts for the International Sale of Goods).
The exclusive place of jurisdiction for all disputes arising out of or in connection with the Swarm Markets Contract (including the Swarm Markets T&Cs) is Berlin, if the Customer is a merchant, a legal entity under public law or a special fund under public law. This also applies to the enforcement of Swarm Markets’ rights against the Customer.
If any provision of the Swarm Markets T&Cs is or becomes invalid, the validity of the remaining provisions of the Swarm Markets T&Cs shall not be affected thereby. The invalid provision shall be replaced by the parties to the contract by mutual consent by a provision which comes closest to the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply accordingly in the event of loopholes.
II. Special Conditions governing Transactions in Cryptographic Assets
These special conditions (hereinafter "Special Conditions") shall govern transactions in cryptographic assets between Swarm Markets GmbH (“Service Partner" or "SP'") and its customer (hereinafter "Customer"/"Customers"). SP and Customer together shall be referred to as the "Parties"). These Special Conditions apply to the purchase or sale of cryptographic assets via Blockchain technology (hereinafter "Cryptographic Assets"). Eligible Cryptographic Assets are specified on the SP's webpage and updated regularly.
GENERAL
Customers are reminded that:
they and any and all persons authorized to initiate Orders are required to successfully complete our account opening process pursuant to our AML Policy, which may be amended from time to time, before making use of SP's Transaction services;
they are solely responsible for, and shall pay, all taxes, assessments, duties, and other governmental charges, including any interest or penalty rightfully owed by Customers with respect to any transaction related to SP's services;
Cryptographic Assets are new forms of assets that the law regarding their ownership, custody, and transfer is developing and uncertain, and that transacting in such assets poses certain risks that are not present in the case of more traditional asset classes. Customers will bear such risks and the potential loss or diminution in value of Cryptographic Assets due to changes or developments in the law or conditions under existing law in which your rights in and to such Cryptographic Assets are not adequately protected;
SP does not own or control the underlying software protocols of networks which govern the operation of Cryptographic Assets, (ii) SP makes no guarantees regarding their security, functionality, or availability, and (iii) in no event shall the SP be liable for or in connection with any acts, decisions, or omissions made by developers or promoters of such Cryptographic Assets;
SP retains external server, telecommunication and other infrastructure providers that are selected with great diligence based on state-of-the-art technical capabilities. Malfunctions, failures and breakdowns of such external systems may affect the services and the connected or underlying systems;
there is a risk of hacking that even a high level of diligence cannot completely exclude. Hacking may affect the functioning of the custody service and the connected or underlying systems;
they are solely responsible for obtaining all regulatory licenses, approvals and consents as applicable to their business, SP is only responsible for compliance with regard to their transaction services. Without limiting the generality of the foregoing, you will not use the services provided by us hereunder in any manner that is, or would result in, a violation of any applicable laws and regulations.
1. Interpretation
In these Special Conditions,
where the context so admits, a reference to the singular includes the plural and vice versa;
any reference to a defined document or provision of statutory law is a reference to that defined document or provision as amended, supplemented, restated or novated from time to time;
headings are for ease of reference only and shall be ignored in the construction of this Agreement;
where a German language term has been added to an English language term, such German term shall be decisive throughout.
2. Transactions in Cryptographic Assets
2.1 Types of transactions
The SP and the Customer conclude transactions in the form of
2.1.1 financial commission transactions whereby the SP purchases and sells Cryptographic Assets in SP's own name for the account of the Customer (Finanzkommissionsgeschäft, hereinafter "Commission Transaction");
2.1.2 brokering of Cryptographic Assets whereby the SP purchases and sells Cryptographic Assets on behalf of and for the account of the Customer (Abschlussvermittlung, hereinafter "Brokering Transaction";.
2.1.3 brokering of Cryptographic Assets whereby the Customer purchases and sells Cryptographic Assets by SP acting in the Customer’s name and by order and for account of the Customer conveying the Customer's declaration to acquire or sell specific Cryptographic Assets (Anlagevermittlung, hereinafter "Investment Brokering Transaction"; Commission Transaction, Brokering Transaction and Investment Brokering Transaction together "Transaction") .
2.2 Orders by the Customer
2.2.1 The Customer instructs the SP in writing regarding the execution of a transaction (hereinafter "Order"). Orders have to be confirmed by the SP via email (hereinafter "Order Confirmation") and are only deemed binding upon such confirmation. The Parties may agree on other rules for confirmation in writing. Communication details, inter alia, email addresses, phone numbers, fax numbers, are exchanged between the Parties separately from these Special Conditions.
2.2.2 Written form under 1.3.1 of these Special Conditions means email, SMS, fax or letter. The Order may also be given orally in personal meetings or over the phone.
2.2.3 The SP is not obligated to execute Orders that SP assumes may entail an infringement of applicable legislation or any rules adopted for the relevant regulated market or markets. In this case, the SP will notify the Customer accordingly, if permitted by law. 1.3.4 The SP reserves the right to refuse to process, cancel or reverse, any Order in its sole discretion in accordance with applicable law and these Special Conditions, even following deposit of Cryptographic Assets in the Customer's Custody Account.
2.2.4 With respect to the use of correct email address and other credentials, the Custodian cannot authenticate whether or not the Order originated from the Customer or another authorized person. As such, the SP may rely upon any action that they believe in good faith to have been taken by the Customer or another authorized person. It is the Customer's sole responsibility to protect and secure their user name, password and other credentials from unauthorized use and disclosure.
2.3 Commission Transaction
2.3.1 When the SP executes Orders from a Customer for a Commission Transaction, it concludes a purchase or sell trade in SP's own name for the account of the Customer with another market participant or a central counterparty, or it commissions another broker (interim agent) to conclude a purchase or sale.
2.3.2 The Parties agree on the payment terms in a separate Fee for the Commission Transaction separately from these Special Conditions. The SP may either advance the funds or the Customer pre-pays a certain amount to the SP.
2.3.3 The SP holds the Cryptographic Assets in custody in its own or a dedicated proxy wallet until Cryptographic Assets are transferred to the Customer's dedicated custody wallet according to the Custody Agreement (hereinafter "Custody Agreement").
2.3.4 The SP executes the transfer to the Customer's dedicated custody wallet on the same day of receiving the Cryptographic Assets, but not later than the following working day.
2.4 Brokering transaction
2.4.1 When the SP executes Orders from a Customer for a Brokering Transaction, it concludes a purchase or sell trade in the name and for the account of the Customer with another market participant or a central counterparty, or it commissions another broker (interim agent) to conclude a purchase or sale.
2.4.2 The Customer makes available to the SP the information necessary to conclude the purchase or sell, particularly the account information for using the Customer's wallet or setting up a wallet in the name of the Customer. The customer also provides such wallet with the necessary funds in case of a purchase.
2.5 Investment Brokering transaction
2.5.1 When the SP executes Orders from a Customer for an Investment Brokering Transaction, it conveys the Customer's declaration to purchase or sell specific Cryptographic Assets to the third party.
2.5.2 The Customer makes available to the SP the information necessary to convey the declaration to purchase or sell, particularly the account information for using the Customer's wallet or setting up a wallet in the name of the Customer.
2.6 Types of transactions between customers
2.6.1 Customers may conduct transactions with the Pools on the Platform, whereby the Customer either buys or sells cryptographic assets to the respective Pool on the basis of a bilateral agreement in which the specific terms of such transaction are agreed. As a result of the agreement, the Customer transfers the agreed number of cryptographic assets to the respective Pool and receives the consideration from the Pool in the form of cryptographic assets. SP is not a party to this agreement.
2.6.2 The transaction is always initiated by the Customer submitting to the Pool a specific request to buy or sell one of the Pool's cryptographic assets. The Pool then responds with an offer for a specific number of the Pool's other cryptographic assets to complete the transaction. A time limit is specified until which the offer is valid. The contract is concluded when the Customer transfers the specified number of the other cryptographic asset to the specified wallet of the Pool and receives a number of assets from the pool that have been determined by the smart contract formulas.
2.6.3 When using the automated market maker (AMM) module of the platform, the transaction executes along these lines:
A user choses a trading pair of two crypto assets, for example, Ethereum / Dai (ETH/DAI)
The user then gives the smart contracts permission to interact with the user’s qualified wallet
The platform then queries the smart contract pools for current swap prices and determines the projected price slippage taking the queried swap amount into consideration.
What price the user gets for an asset is determined by a formula which is executed by a smart contract, i.e. without individual human intervention. For instance, to buy ETH (x), it is necessary to add DAI (y) tokens to the pool. The applied formula is k=x*y, so k demands that the amount of liquidity remains constant. Therefore, by adding DAI tokens, one side of the pool is increased and the other decreased (removing ETH). The algorithm divides the pool's total liquidity by the new amount of DAI in the pool, then divides that by the new amount of ETH in the pool so that (k / y) / x = price. This is how the protocol determines the price paid for ETH, which will further increase the more ETH is bought from the pool.
The user then executes the swap trade using the AMM mechanism, where trades are effectively swaps of one token into another within the smart contract pool
The transaction is executed with the user signing a transaction, such that the desired swap-in assets net of Swarm protocol fees are transferred into smart contract pool
The swap-out assets are then transferred from the pool smart contract into the user’s wallet which successfully concludes the trade. The amount is determined by the pool smart contract applying a fixed applied formula (e.g. k=x*y, so k demands that the amount of liquidity remains constant and x and y being the assets in the pool). Therefore, by adding swap-in tokens, one side of the pool is increased and the other decreased (removing swap-out assets). The algorithm divides the pool's total liquidity by the new amount of swap-in assets in the pool, then divides that by the new amount of asset balances in the pool so that (k / y) / x = price. This implicitly determines the price paid for the swap-in asset, which will further increase the more swap-in assets are swapped from the pool in subsequent swap trades.
In the AMM, swap trades are made against the entirety of the pool, effectively against a prorated portion of assets held by all liquidity providers (“LPs”). LPs add assets to liquidity pools by providing token pair(s) and can withdraw their prorated portion of pool assets at any time.
3. Execution of Transactions
The SP executes Transactions according to its execution policies published on its website or agreed directly with the Customer. The execution policies form part of these special conditions. The SP is entitled to alter the execution policies in line with supervisory rules. The SP will notify the Customer about changes in the execution policies.
4. Market practices/information/price
4.1 Legal requirements/market practices/terms of business of third parties
The SP executes Transactions in Cryptographic Assets on exchanges for cryptographic assets or peer-to-peer. Purchases and/or sales are subject to the legal provisions and terms of business (market practices) applying to transactions in Cryptographic Assets at such execution venue; in addition, the general terms of business of such SP's counterparty apply.
4.2 Information
The SP shall notify the Customer of the execution of the Order without delay.
4.3 Price of purchase and sale, fees and expenses
The SP settles the purchase or sale with the Customer; it is entitled to invoice its fees and expenses including external costs (hereinafter 'Transaction Costs'). Prior to executing the Transaction, the SP communicates the Transaction Costs to the Customer or the Parties have agreed on a different formula for acceptable Transaction Costs.
5. Requirement for an adequate account balance/portfolio holding
The SP is only obligated to execute Orders as long as the Customer's balance or the Customer's portfolio holdings available for the Transaction are sufficient to allow execution.
6. Price limits
On issuing Orders, the Customer may set the SP price limits for purchases and/or sales (Orders limited in price).
7. Validity of unlimited Customer Orders
7.1 Orders not limited in price
An Order which is not limited in price only applies for one day of trading according to the execution policies; if the Order was not received punctually enough for a same-day transaction as part of the normal workflow, it is noted for the next trading day. If the Order is not executed, the SP shall immediately notify the Customer.
7.2 Orders limited in price
An Order limited in price is valid until the last trading day of the current month (month-end). An Order received on the final trading day of a month, if not executed on the same day, is noted for the next month in accordance with the execution policies. The SP shall immediately notify the Customer of the period for which the Order is valid.
7.3 Suspension from quotation
If the fixing of prices at a domestic execution venue does not take place due to special circumstances affecting the issuer (suspension from quotation), all Customer Orders scheduled for execution at this venue shall be suspended for the Cryptographic Assets concerned, if the terms of the execution venue provide for such suspension.
7.4 Execution of Customer Orders at foreign execution venues
When executing Customer Orders at foreign execution venues, the market practices of the foreign venues apply.
7.5 Notification
The SP shall notify the Customer without delay of the extinguishment of a Customer Order.
7.6 Liability of the SP in Commission Transactions
The SP is liable for the due fulfillment of the purchase or sale by its counterparty or the counterparty of the interim agent. Until completion of the purchase or sale, the SP shall only be held liable when commissioning an interim agent for carefully selecting and instructing it.
8. Normal settlement in Germany
The SP settles securities trades within the country of Germany unless the following conditions or another agreement provide for purchase abroad.
9. Liability and Liability Limitation
9.1 The SP accepts liability for intent and gross negligence. The SP's liability is limited to contract-typical damages foreseeable at conclusion of these Special Conditions in case of mildly negligent breach of a main obligation or a secondary obligation, the breach of which endangers the achievement of the contract's purpose, or the fulfillment of which is essential for the proper execution of these Special Conditions, and on the observance of which Customers could reasonably rely ("Essential Secondary Obligation").
9.2 Towards other corporations, the SP is only liable for intent or gross negligence on its part, by their lawful representatives, executive employees or other vicarious agents, except in the case of breaches of material contractual obligations. In the event of a breach of material contractual obligations, the SP shall be liable for any culpable act of its lawful representatives, officers or other employees.
9.3 The SP is not liable for the mildly negligent violation of secondary obligations that are not Essential Secondary Obligations.
9.4 With the exception of tort claims, the Customers' claims for damages with limited liability shall become statute-barred one year after the beginning of the statutory limitation period. As far as the liability of the SP is excluded or limited, the statute of limitations also applies to the personal liability of its employees, other staff and vicarious agents.
9.5 The SP takes all necessary and prudent precautions to safeguard Cryptographic Assets from hacking.
9.6 Force Majeure: The SP is not liable for any damages due to Force Majeure.
9.7 The SP takes all necessary and prudent efforts to provide the Customer with high-level custody services, including applying the necessary diligence in retaining third-party services. The SP accepts no liability for interferences with the normal service level that are not under the control of the SP. It will inform Customers on the website if the service level is interrupted for more than 24 hours.
10. Transfer; third-party involvement
10.1 The Customer cannot assign or transfer any of its rights, claims or obligations under or in connection with these Special Conditions without prior consent of the SP.
10.2 The SP may at any time assign and transfer its rights, claims and obligations, including by way of assumption of contract (befreiende Vertragsübernahme), under or in connection with these Special Conditions to a person appointed as successor SP under the terms of these Special Conditions. The Customer hereby consents to any such transfer.
10.3 The SP may perform any of their duties or obligations under these Special Conditions through subcontractors or agents (including affiliates), whenever and on such terms and conditions as the SP, in its sole discretion, deems necessary or appropriate to perform such duties or obligations or liabilities; provided, however, that no arrangement with such subcontractor or agent shall discharge the SP from its obligations hereunder.
11. Miscellaneous
11.1 The SP reserves the right to change or extend services.
11.2 The SP strives to continuously improve and extend its transaction services. Thus, the SP reserves the right to adapt these Special Conditions from time to time. The updated version of these Special Conditions as published on the website at https://www.swarm-markets.com/ and made known to Customers via email will automatically become part of this agreement if you do not object to the changes within four weeks.
11.3 For all disputes arising from the contractual relationship between the Parties, the Customer agrees that the laws of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods.
11.4 The courts of Berlin, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with these Special Conditions (including a dispute relating to the existence, validity or termination of these Special Conditions or any non-contractual obligation arising out of or in connection with these Special Conditions.
11.5 Should any of the provisions of these Special Conditions be or become invalid or unenforceable in whole or in part, the validity or the enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The invalid or unenforceable provision shall be replaced by a provision that, to the extent legally possible, provides for an interpretation in keeping with the meaning and the economic purposes of these Special Conditions. If these Special Conditions prove to be incomplete, a supplementary interpretation in accordance with the meaning and the purposes under due considerations of the legitimate interest of the Parties shall be applied.
III. Custody Agreement for Crypto Currency Services
The following Custody Agreement applies to the Custodian's crypto custody service between Swarm Markets GmbH (the "Custodian") and Customer. Customers are requested to read this Agreement carefully to understand which provisions apply to them and how. This Custody Agreement is to be read in conjunction with the Custodian's General Terms of Use, Special Conditions governing Transactions in Cryptographic Assets and Privacy Policy.
Customers are reminded that
they and any and all persons authorized to initiate deposits and withdrawals are required to successfully complete the Custodian's account opening process pursuant to its AML Policy, which may be amended from time to time, before making use of the Custodian's custody services;
they are solely responsible for, and shall pay, all taxes, assessments, duties, and other governmental charges, including any interest or penalty rightfully owed by Customers with respect thereto, with respect to any Custody Assets or any transaction related thereto;
Supported Assets are new forms of assets that the law regarding their ownership, custody, and transfer is developing and uncertain, and that custody of such assets poses certain risks that are not present in the case of more traditional asset classes. Customers will bear such risks and the potential loss or diminution in value of Supported Assets due to changes or developments in the law or conditions under existing law in which Customer's rights in and to such Supported Assets are not adequately protected;
Custodian does not own or control the underlying software protocols of networks which govern the operation of Supported Assets, (ii) Custodian makes no guarantees regarding their security, functionality, or availability, and (iii) in no event shall Custodian be liable for or in connection with any acts, decisions, or omissions made by developers or promoters of such Supported Assets;
the Custodian retains external server, telecommunication and other infrastructure providers that are selected with great diligence based on state-of-the-art technical capabilities. Malfunctions, failures and breakdowns of such external systems may affect the Services and the connected or underlying systems;
there is a risk of hacking that even a high level of diligence cannot completely exclude. Hacking may affect the functioning of the custody service and the connected or underlying systems;
they are solely responsible for obtaining all regulatory licenses, approvals and consents as applicable to their business, Custodian is only responsible for compliance with regard to their custody services. Without limiting the generality of the foregoing, the Customer may not use the services provided by the Custodian hereunder in any manner that is, or would result in, a violation of any applicable laws and regulations.
1. Definitions and interpretation
1.1 Capitalised terms used in this Custody Agreement shall have the following meaning:
"Assets" any digital asset, notwithstanding other denominations such as "cryptocurrency", "virtual currency", "digital currency", which is a digital representation of value based on (or built on top of) a cryptographic protocol of a computer network;
"Custody Asset Balance" the quantity of each Custody Asset denominated in the appropriate Supported Asset type;
"Authorised Person" is any person designated by the Customer to have access to the Customer's Custody Account based on the role-based permissions the Customer assigns;
"Blockchain Address" a public address on a blockchain in which Assets can be held (including, but not limited to, a Bitcoin address for the Asset commonly known as Bitcoin and an Ethereum address for the Asset commonly known as Ether);
"Cold Storage System” the proprietary offline storage system that the Custodian uses to custody the Customer's Custody Assets;
"Custody Asset" any Supported Assets that have been Delivered to the Custodian to be held in a Custody Account established by the Custodian on the Customer's behalf (as described in the 'Custody Account' section), in each case until such Custody Assets are withdrawn or cease to be Custody Assets pursuant to this Custody Agreement. Custody Assets shall also mean any Asset resulting from Forks that the Custodian, in their sole discretion, deemed to be a Supported Asset;
"Customer Interface" the Custodian's interface potentially to be provided in the future on the Custodian's website at https://custody.swarm-capital.com or https://www.custodl.com that allows for Custody Account actions including, but not limited to, the ability to view balances and request and approve withdrawals;
"Cut-Off Time" 6:00pm CET each Business Day;
"Delivery" (or "Deliver", "Delivering" or "Delivered") the transfer of Supported Assets to one or more Blockchain Addresses controlled by the receiving Party and provided by the receiving Party to the sending Party for such transfer. Supported Assets will only be considered Delivered to the Custodian after the required number of network confirmations, as determined by the Custodian in its sole discretion, have occurred on the blockchain for such Supported Assets;
"Effective Date" the date of Delivery of Supported Assets from the Customer to the Custodian;
"Other Functionality" functionality that may be associated with certain Custody Assets including, but not limited to, staking, protocol governance, smart contract functionality, and other similar uses;
"Parties" (each, individually a "Party") means the Customer and the Custodian;
"Supported Asset" any Asset with regard to which Custodian offers its services
"Withdrawal Request" a request sent to the Custodian by the Customer that specifies the type and amount of Custody Assets to be withdrawn from the Customer's Custody Account and the destination Blockchain Address.
1.2 Interpretation
In this Custody Agreement:
1.2.1 where the context so admits, a reference to the singular includes the plural and vice versa;
1.2.2 any reference to a defined document or provision of statutory law is a reference to that defined document or provision as amended, supplemented, restated or novated from time to time;
1.2.3 headings are for ease of reference only and shall be ignored in the construction of this Agreement;
1.2.4 where a German language term has been added to an English language term, such German term shall be decisive throughout; and
2. Custodian Appointment
2.1 The Customer hereby appoints the Custodian to act as the custodian of Custody Assets to be held in the Customer's Custody Account in accordance with this Custody Agreement. The Custodian accepts such appointment.
2.2 The Custodian does not provide any investment advice or advice on trading techniques, models, algorithms, or any other schemes.
2.3 Unless provided explicitly in this Custody Agreement, as may be revised from time to time, we will not support any Other Functionality associated with any Custody Assets.
2.4 Custody services may not be used for any unlawful or unauthorized purpose, as determined by Custodian.
3. Custody Account
3.1 The Custodian shall establish a Custody Account in the name of the Customer. The Custody Account will have one or more associated unique Blockchain Addresses in which the Customer's Custody Assets will be stored. The Custodian shall provide the Customer with all Blockchain Addresses associated with the Customer's Custody Account.
3.2 The attribution of the Custody Assets to the Customer will be clearly recorded in the Custodian's books as belonging to the Customer. The Custodian's records shall at all times provide for the separate identification of the Customer's Custody Assets. The Custodian shall not loan, hypothecate, pledge, or otherwise encumber any Custody Assets in the Custody Account, absent specific instructions from the Customer.
3.3 The Custodian may use its Cold Storage System to custody its own Supported Assets and/or the Supported Assets of third parties; provided that separate Blockchain Addresses are utilized to segregate the Customer's Custody Assets from such other property.
4. Delivery
The Custodian has no obligation with respect to any Supported Assets unless such Supported Assets have been Delivered to a Blockchain Address provided by the Custodian. In addition, the Custodian is not required to accept Delivery of any Supported Assets, and has no liability therefor (except, if Delivered by the Customer, to ensure return by Delivery of such Supported Assets to the Customer), if the Custodian believes that the acceptance thereof would or is reasonably likely to expose the Custodian or any of the Custodian's affiliates to any liability (contingent or otherwise).
5. Deposits
5.1 Deposits of Supported Assets to a Blockchain Address of the Customer's Custody Account may occur without the Custodian's involvement. Deposits will be credited to the Customer's Custody Account once they are delivered.
5.2 The Customer is asked to only initiate deposits of Supported Assets to a Blockchain Address of their Custody Account when such Blockchain Address and Custody Account is active and compatible with the respective Asset and/or take into account any other notices relevant to the deposit. The Custodian is not liable for the loss of Assets due to the disregard of such obligations or loss of Assets prior to arrival in the Custody Account.
5.3 The Custodian reserves the right to refuse to process, cancel or reverse, any deposit in their sole discretion in accordance with applicable law and this Custody Agreement, even following deposit of Supported Assets in the Customer's Custody Account.
6. Withdrawals
6.1 The Custodian offers (i) a full custody solution and (ii) a multi-sig solution.
6.2 Full custody solution
6.2.1 The Customer submits a Withdrawal Request to the Custodian via
6.2.1.1 the Custodian's Customer Interface; or
6.2.1.2 Email to the following address [email protected], followed by a confirmation of the transaction data via a pre-agreed telephone connection.
6.2.1.3 Or any other method agreed to and verified by the Parties
6.2.2 Following either method, the Authorized Person will receive an email notification or other communication previously agreed to informing them of the Withdrawal Request. The Authorized Person must approve the Withdrawal Request through the Custodian's Customer Interface or via email, depending on the form of Customer's submission ("Withdrawal Confirmation").
6.3 Multi-sig solution
6.3.1 Upon submission of a Withdrawal Request via the Custodian's Customer Interface, all Authorized Persons will receive an email notification informing them of the Withdrawal Request. An Authorized Person (other than the Authorized Person who initiated the Withdrawal Request) must then approve the Withdrawal Request via the Custodian's Custody Interface ("Withdrawal Confirmation").
6.3.2 If only one Authorized Person is designated on an Account, a Withdrawal Request will be approved.
6.4 Once a Withdrawal Confirmation has been made, the Customer's Withdrawal Request will be processed within one Business Day of the next Cut-Off-Time.
6.5 With respect to the Custodian's Customer Interface and use of correct email address and other credentials, the Custodian cannot authenticate whether or not the Withdrawal Request originated from an Authorized Person. As such, Custodian may rely upon any action that they believe in good faith to have been taken by an Authorized Person. It is the Customer's sole responsibility to protect and secure their user name, password and other credentials from unauthorized use and disclosure.
6.6 Any Withdrawal Request from Customer's Custody Account shall only request delivery of Custody Assets to a wallet that is attributed and has previously been verified to the Customer or an Authorized Person and controlled by these. The Customer shall upon the Custodian's request evidence such attribution and control.
6.7 The Custodian has the right to refuse to execute any Withdrawal Request that the Custodian believes to (potentially) be in violation of any Applicable Laws and Regulations.
7. Fees
7.1 The fee denominated in the respective Custody Asset type (the "Custody Fee") is: (i) calculated on a daily basis at 4:00pm CET; and (ii) accrues each calendar day against the respective Custody Asset Balance beginning on the day the Supported Assets were Delivered to the Custodian (i.e., becoming Custody Assets).
7.2 The Custodian will deduct the Custody Fee from the Custody Assets the Custodian holds on the Customer's behalf on a monthly basis, on or around the last Business Day of every calendar month, or more frequently, in the Custodian's sole discretion. The Custodian will deduct the accrued and uncollected Custody Fee from the Assets the Custodian holds on the Customer's behalf any time the Customer's Custody Asset Balance falls below the accrued but uncollected Custody Fee, including when the Customer withdraws its Custody Assets.
7.3 The Custodian may deduct an administrative withdrawal fee (the "Administrative Withdrawal Fee") in connection with a Withdrawal Request and in accordance with the Custody Fee Schedule.
7.4 The Custody Fee Schedule is incorporated by reference and is made available here: https://www.swarm-markets.com
7.5 The Custodian reserves the right to change, modify, or increase the Custody Fee Schedule at any time. Any change to the Custody Fee Schedule will be posted at least three calendar days prior to taking effect and no change will be in effect for less than 30 calendar days.
7.6 The Custodian maintains the right to retain or set-off any matured obligation due from a Customer against any Custody Assets (or the value thereof, as reasonably determined in the Custodian's sole discretion) or any other satisfiable (erfüllbar) obligation (within the meaning of Section 387 German Civil Code (§ 387 BGB)) against any obligations that the Customer may have to the Custodian. If the obligations are in different currencies or Supported Assets, the Custodian may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
8. Forks
8.1 Forks may result in Forked Networks and the Custodian holding an identical amount of Custody Assets associated with each Forked Network.
8.2 Underlying protocols of Supported Assets are subject to changes in operating rules (each a "Fork") that may result in more than one version (each, a "Forked Network") and the Custodian holding an identical amount of Custody Assets associated with each Forked Network. Forks may materially affect the value, function, and/or name of the Custody Assets.
8.3 In the event of a Fork, Custodian may temporarily suspend the operations of the custody service (with or without advance notice to Customers) while the Custodian chooses, in its sole discretion, except as described herein, which Forked Networks to support. In our best estimation the Custodian is unlikely to support most Forked Networks and the Custody Assets of most Forked Networks will likely not be made available to Customers.
8.4 Digital asset values can fluctuate substantially which may result in a total loss of the value of digital assets held by the Custodian on the Customer's behalf. The supply of digital assets available to the Custodian to provide to Customers as a result of a forked network and our ability to deliver digital assets resulting from a forked network may depend on third party providers that are outside of the Custodian's control. The Custodian does not own or control any of the protocols that are used in connection with digital assets and their related digital asset networks, including those resulting from a forked network. Accordingly, the Custodian is not liable regarding such protocols and any change in the value of any digital assets (whether of a forked network or otherwise), and does not make any guarantees regarding the security, functionality, or availability of such protocols or digital asset networks.
8.5 The Custodian shall deduct a Daily Fee from the Custody Assets of each Supported Forked Network held by the Custodian on the Customer's behalf pursuant to the Custody Fee Schedule.
9. Account Statements
The Custodian provides the Customer with an itemized account statement ("Custody Statement") monthly via the Custodian's Consumer Interface or via email, which will list the accrued Daily Fees for the Custody Assets.
10. Refund and Cancellation Policy for Deposits and Withdrawals
10.1 The Custodian may cancel the deposit or withdrawal process at any time. Reasons for cancellation include, but are not limited to, technical error, market abuse, manipulation, prohibited activities and other circumstances referred to in Section 11 of this Custody Agreement.
10.2 Customers are entitled to refunds. Refunds may not be granted where the Customer is solely responsible for the cancellation or Assets are linked to criminal activity. The Custodian may deduct all fees and charges due from any refund.
10.3 In case the Custodian transfers to the Customer any excess Supported Assets that the Customer is not entitled to, the Customer agrees to inform the Custodian and transfer back that excess amount without undue delay.
11. Suspension / Termination
The Custodian has the right to suspend and/or terminate the custody services under this Custody Agreement pursuant to the account suspension and account termination provisions of the General Terms of Use.
12. Liability / Liability Limitations
12.1 The Custodian accepts liability for intent and gross negligence. The Custodian's liability is limited to contract-typical damages foreseeable at conclusion of this Custody Agreement in case of mildly negligent breach of a main obligation or a secondary obligation, the breach of which endangers the achievement of the contract's purpose, or the fulfillment of which is essential for the proper execution of this Custody Agreement, and on the observance of which Users could reasonably rely ("Essential Secondary Obligation").
12.2 Towards other corporations, the Custodian is only liable for intent or gross negligence on its part, by their lawful representatives, executive employees or other vicarious agents, except in the case of breaches of material contractual obligations. In the event of a breach of material contractual obligations, the Custodian shall be liable for any culpable act of its lawful representatives, officers or other employees.
12.3 The Custodian is not liable for the mildly negligent violation of secondary obligations that are not Essential Secondary Obligations.
12.4 With the exception of tort claims, the Customers' claims for damages with limited liability shall become statute-barred one year after the beginning of the statutory limitation period. As far as the liability of the Custodian is excluded or limited, the statute of limitations also applies to the personal liability of its employees, other staff and vicarious agents.
12.5 The Custodian takes all necessary and prudent precautions to safeguard Custody Assets from hacking.
12.6 Force Majeure: The Custodian is not liable for any damages due to Force Majeure.
12.7 The Custodian takes all necessary and prudent efforts to provide the Customer with high-level custody services, including applying the necessary diligence in retaining third-party services. The Custodian accepts no liability for interferences with the normal service level that are not under the control of the Custodian. It will inform Customers on the website if the service level is interrupted for more than 24 hours.
13. Back-Up Systems
13.1 The Custodian keeps and maintains, or causes to be kept, accurate books and records with respect to any Custody Account and Custody Assets, including with respect to the receipt and withdrawal or transfer thereof.
13.2 The Custodian maintains a commercially reasonable system for (i) recovery, in case of disaster, of all of its records associated with the Customers' Custody Accounts, and (ii) the continued provision of the services under this Custody Agreement in the event of any Downtime and Maintenance.
14. Transfer; third-party involvement
14.1 The Customer shall not assign or transfer any of its rights, claims or obligations under or in connection with this Custody Agreement without prior consent of the Custodian.
14.2 The Customer may at any time assign and transfer its rights, claims and obligations, including by way of assumption of contract (“befreiende Vertragsübernahme”), under or in connection with this Custody Agreement to a person appointed as successor Custodian under the terms of this Custody Agreement. The Customer hereby consents to any such transfer.
14.3 The Custodian may perform any of their duties or obligations under this Custody Agreement through subcontractors or agents (including affiliates), whenever and on such terms and conditions as the Custodian, in its sole discretion, deems necessary or appropriate to perform such duties or obligations or liabilities; provided, however, that no arrangement with such subcontractor or agent shall discharge the Custodian from its obligations hereunder.
15. Miscellaneous
15.1 The Custodian reserves the right to change or extend services, notably its Customer Interface.
15.2 The Custodian strives to continuously improve and extend its custody services. Thus, the Custodian reserves the right to adapt this Custody Agreement from time to time. The updated version of the Custody Agreement will be made known to Customers via email or the website and will automatically become part of this agreement if the Customer does not object to the changes within four weeks.
15.3 For all disputes arising from the contractual relationship between the Parties, the Customer agrees that the laws of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods.
15.4 The courts of Berlin, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Custody Agreement (including a dispute relating to the existence, validity or termination of this Custody Agreement [or any non-contractual obligation arising out of or in connection with this Custody Agreement].
15.5 Should any of the provisions of this Custody Agreement be or become invalid or unenforceable in whole or in part, the validity or the enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The invalid or unenforceable provision shall be replaced by a provision that, to the extent legally possible, provides for an interpretation in keeping with the meaning and the economic purposes of this Custody Agreement. If this Custody Agreement proves to be incomplete, a supplementary interpretation in accordance with the meaning and the purposes under due considerations of the legitimate interest of the Parties shall be applied.
15.8 The Custodian hereby informs the Customer that business-related and business necessary data will be collected, stored and processed within the scope of the German data protection laws. For further information on data protection please refer to the Privacy Policy as published on the website at https://www.swarm-markets.com/privacy.
As of 09/29/2021
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I. General Terms and Conditions
1. SCOPE OF APPLICATION, TERMS, AND CONDITIONS OF THIRD PARTIES AND CONTRACTING PARTY
2. SUBJECT MATTER OF THE CONTRACT
3. SCOPE OF SERVICES
4. CONTRACTUAL RELATIONSHIP WITH SWARM MARKETS
5. CONTRACTUAL RELATIONS WITH PARTNERS
6. CONCLUSION OF CONTRACT
7. COMMUNICATION AND MODIFICATION OF INFORMATION
8. DATA PROTECTION AND DATA RETRIEVAL
9. OBLIGATIONS OF THE CUSTOMER
10. RELEASE FROM LIABILITY
11. LIMITATION OF THE OFFER
12. DURATION AND TERMINATION OF THE SWARM MARKETS CONTRACT
13. LIABILITY FOR DEFICIENCIES
14. LIMITATION OF LIABILITY
15. NO LIABILITY FOR THIRD PARTY PROVIDERS
16. LIMITATION PERIOD
17. UNILATERAL AMENDMENTS TO THE TERMS AND CONDITIONS
18. OTHER AMENDMENTS TO THE SWARM MARKETS T&CS; FICTIONAL EXPLANATION
19. FEES AND PAYMENT PROCESSING
20. BONUS PROGRAMS AND CREDITS
21.TRANSFER OF RIGHTS AND OBLIGATIONS
22. OTHER
II. Special Conditions governing Transactions in Cryptographic Assets
GENERAL
1. Interpretation
2. Transactions in Cryptographic Assets
3. Execution of Transactions
4. Market practices/information/price
5. Requirement for an adequate account balance/portfolio holding
6. Price limits
7. Validity of unlimited Customer Orders
8. Normal settlement in Germany
9. Liability and Liability Limitation
10. Transfer; third-party involvement
11. Miscellaneous
III. Custody Agreement for Crypto Currency Services
1. Definitions and interpretation
2. Custodian Appointment
3. Custody Account
4. Delivery
5. Deposits
6. Withdrawals
7. Fees
8. Forks
9. Account Statements
10. Refund and Cancellation Policy for Deposits and Withdrawals
11. Suspension / Termination
12. Liability / Liability Limitations
13. Back-Up Systems
14. Transfer; third-party involvement
15. Miscellaneous