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Bitpanda Metals GmbH General Terms and Conditions

Version 1.0.0, valid as of 13th May 2019

  1.  

    General Provisions

    1.  

      The general terms and conditions herein (“GTC”) exclusively apply to any and all transactions, contracts and any and all business relationships with Bitpanda Metals GmbH, with its corporate seat in A-1020 Vienna, Campus 2, Jakov-Lind-Straße 2 (“Bitpanda Metals”). Bitpanda Metals offers services in cooperation with third parties, in particular with Bitpanda GmbH. Hence, the GTC apply to transactions and business relationships with Bitpanda Metals related to any online or electronic platform (e.g. https://www.bitpanda.com/) and mobile application of Bitpanda GmbH (“Bitpanda Systems”).

    2.  

      The service of Bitpanda Metals allows you to purchase and sell physically vaulted precious metals such as, but not limited to, gold, silver, palladium and platinum (“Services”). All other services (in particular with respect to cryptocurrencies) available on Bitpanda Systems are provided by Bitpanda GmbH and, hence, Bitpanda GmbH’s terms and conditions apply.

    3.  

      Bitpanda Metals guarantees a minimum of 100% full reserves of the purchased precious metals.

    4.  

      Bitpanda Metals offers Services only to and enters into contracts only with persons of legal age.

    5.  

      For an overview of the definitions used in these GTC, please refer to Annex I.

  2.  

    Becoming a Bitpanda Metals Client

    1.  

      In order to use Bitpanda Metals’ Services, you have to be a fully registered and verified client of Bitpanda Systems.

    2.  

      Persons interested in using Services have to register themselves on a Bitpanda System by providing valid and true information as required in the registration process. A person having successfully completed the registration process (which is confirmed by Bitpanda GmbH) is called "Bitpanda Client" or “you”.

    3.  

      In order to use the trading options on a Bitpanda System you as a Bitpanda Client have to verify your account. Your trading limits depend on such verification level. The verification processes and requirements depend mainly on security requirements, in particular AML considerations, and may change from time to time depending on the legal framework.

    4.  

      You ensure that you keep any and all details of your password confidential and that you only act for yourself and have opened the account only for yourself. It is also forbidden to act as intermediary of any kind or broker of any kind or trustee of any kind for any person or to allow access of any kind to the account to any other person than yourself. As a preventive security measure, Bitpanda Metals recommends that each Bitpanda Client uses the two factor authentication identification components (“2FA”).

    5.  

      Persons having a US citizenship or being located in the United States may not become a Bitpanda Client according to regulatory reasons. Depending on the respective local regulatory framework Bitpanda Metals may exclude other jurisdiction from its Services as well.

    6.  

      When a password is reset, Bitpanda Metals and Bitpanda GmbH pause any payment to and/or transfer of Tokens (as defined in item 3.1) to you or out of Bitpanda Systems for security reasons for a maximum period of 48 hours. You confirm that you are aware of this security measure and accept it.

    7.  

      You, as a Bitpanda Client, shall

      1.  

        ensure prompt execution of any contracts and shall refrain from activities which would thwart or endanger such execution.

      2.  

        immediately report all defects or other problems which you either cause or get made aware of and shall assist Bitpanda Metals in remedying the problem.

      3.  

        immediately update via a Bitpanda System or submit to Bitpanda GmbH via registered mail any changes to your personal data (name, mailing/postal address and email address). You are aware and accept that Bitpanda Metals shall always use the last email address and last postal address which you shared with Bitpanda GmbH, and that any message delivered to such email or postal address shall be legally delivered.

      4.  

        at all times ensure that you have available and in usable condition your 2FA, if used by you. In case of loss of the 2FA, you must immediately inform Bitpanda GmbH about this loss and follow the Support team member's instructions. You acknowledge and accept that such instructions may be deferred depending on the utilisation of the Support team and neither Bitpanda GmbH nor Bitpanda Metals is liable for any of your claims due to such delay. If you are not able to follow the instructions and comply with the security rules and requirements, you will neither be able to access the relevant page nor your Bitpanda Client Account again and the Bitpanda Client's Account including any Token may not be and cannot be used until you can regain the correct 2FA. You are aware and accept this "No Recover Policy" which is a major and important immanent part of a system dealing with cryptographic blockchain-based digital information units.

    8.  

      Bitpanda Metals and, hence, Bitpanda GmbH requires certain specified information from you in the process of becoming a Bitpanda Client. You are aware and accept herewith that Bitpanda Metals may at its sole discretion decide at which point in time you must deliver copies of passports (in notarised and apostilled form or not) and any other documents required by law and/or as defined in Data Protection Terms; if being a legal entity copies of company register excerpts or equivalent documents (in notarised and apostilled form or not) and any other documents required by law or as defined in Data Protection Terms.

  3.  

    Exchange

    1.  

      Bitpanda’s group provides Bitpanda Systems for the exchange of (i) cryptographic blockchain-based digital information units, such as, but not limited to, Bitcoin, Dash, Ripple, Bitcoin Cash, Ether and Litecoin, (“E-Token”), (ii) fiat token (“F-Token”), (iii) precious metals (“M-Token” together with E-Token and F-Token referred to as “Token”) or (iv) the sale and purchase of Token with a currency that is legal tender (gesetzlich anerkanntes Zahlungsmittel). The M-Tokens traded on Bitpanda Systems can be changed or amended at any time and at the sole discretion of Bitpanda Metals. The services with respect to F- and E-Token are offered by Bitpanda GmbH and not by Bitpanda Metals itself.

      1.  

        Exchange (Tausch) and sale/purchase (Verkauf/Kauf) of M-Token with Bitpanda Metals is exclusively done in the following way: You offer bindingly to exchange, sell or buy (part of) M-Token(s) to Bitpanda Metals. To make such binding offer you have to (i) correctly fill in all necessary, valid and correct data on the respective trading screen and (ii) click/confirm either "Buy now" or "Sell now" button (item (ii) referred to as the "Final Offer Click"). The conditions offered by Bitpanda Metals for your order are valid for one minute (“Price Guarantee”) which is the maximum time to validate and confirm the conditions by the Final Offer Click. For the avoidance of doubt in this context, the word "buy" is to be interpreted and qualified exclusively as "binding offer to accept the receipt of M-Token in exchange for the specified amount in a currency which is legal tender or F-Token" and the word "sell" is to be interpreted and qualified exclusively as "binding offer to accept the receipt of F-Token or the specified amount in a currency which is legal tender or the equivalent amount in form of Cooperation Vouchers (see item 6) in exchange for M-Token".

      2.  

        Bitpanda Metals also offers “Bitpanda Savings” for M-Token in cooperation with Bitpanda GmbH. You can exclusively use Bitpanda Savings in the following way: You offer bindingly to purchase (part of) M-Token on a regular and recurring basis from Bitpanda Metals (“Mutiple Debit Order”). To make such binding offer you have to (i) correctly fill in all necessary, valid and correct data on the respective trading screen and (ii) click/confirm "Confirm now" button (item (ii) referred to as the "Final Offer Click Savings" together with the Final Offer Click the “Final Offer Clicks”). For the avoidance of doubt in this context "Confirm now" is to be interpreted and qualified exclusively as "binding offer to accept the receipt of M-Token on a regular and recurring basis in exchange for the specified amount in a currency which is legal tender”.

      3.  

        Bitpanda Metals also offers “Bitpanda Swap” for M-Token in cooperation with Bitpanda GmbH. You can exclusively use Bitpanda Swap for M-Token in the following way: You offer bindingly to exchange (part of) M-Tokens into E-Token or vice versa or (part of) M-Tokens into another type of M-Token. To make such binding offer you have to (i) correctly fill in all necessary, valid and correct data on the trading screen and (ii) click/confirm "Swap now" button (item (ii) referred to as the “Final Offer Click Swap” together with the Final Offer Click the “Final Offer Clicks”). For the avoidance of doubt in this context "swap now" is to be interpreted and qualified exclusively as "binding offer to accept the receipt of E-Token in exchange for the specified amount of M-Token or vice versa or " or “binding offer to accept the receipt of M-Token in exchange for the specified amount of another type of M-Token”.

      4.  

        The offers mentioned in item 3.1.1, 3.1.2 and 3.1.3 are herein referred together as “Bitpanda Client Offer.  You are bound by a Bitpanda Client Offer for a period of one week after the respective Final Offer Click (“Offer Period”). Bitpanda Metals confirms to you immediately after having received a Bitpanda Client Offer the receipt thereof.

      5.  

        After having received a Bitpanda Client Offer Bitpanda Metals may or may not accept such offer by factual fulfilling of the offer (tatsächlicher Erfüllung des Angebots) at its sole discretion within the Offer Period (the “Contract Conclusion and Order Fulfillment Action” or “CCOFA”). For any payments in currency that is legal tender from and to you the Bitpanda System uses a payment service provider. Where Bitpanda Metals factually fulfilled the Bitpanda Client Offer without full receipt of the payment as agreed in the Bitpanda Client Offer, you are obliged to pay the outstanding amount (“Default in Payment”). In case of any Default in Payment the consequences as outlined in item 4.2 and 8.8 apply.

    2.  

      Any figures, numbers, exchange reference prices or other relevant publications via any Bitpanda System or in another way are in no case offers, nor binding offers, nor guarantees for an exchange but always to be seen as invitations to you to provide offers for exchange to Bitpanda Metals (invitation ad offerendum).

    3.  

      Bitpanda Systems exclusively allow Bitpanda Clients to make exchange offers based on positive balances on the respective Bitpanda Client Account. Short selling, meaning an offer with respect to Tokens which are not booked as positive balance on the respective Bitpanda Client Account, is forbidden and blocked by the system. A Bitpanda Client Offer is technically limited with your positive balance of such offer and the limits pursuant to your verification level. Bitpanda Metals reserves the right to further limit the range of a Bitpanda Client Offer at its sole discretion to certain specified limits per Bitpanda Client.

    4.  

      Delays in the processing of the Bitpanda Client Offers can occur due to unforeseen technical disruptions. Therefore, neither Bitpanda Metals nor Bitpanda GmbH offer any guarantee of immediate offer processing nor assumes any liability related thereto, in particular not with respect to any changes of prices, valuations or other conditions with respect to any offered Tokens or services, except the Price Guarantee of Bitpanda Metals as outlined in item 3.1.1 of these GTC.

  4.  

    Bitpanda Client Account

    1.  

      Bitpanda Systems allow only one account per Bitpanda Client (“Bitpanda Client Account”).

    2.  

      Bitpanda Metals reserves the right to lock, freeze and/or close a Bitpanda Client Account (including the block (Blockierung) of a transaction, reverse (Rückabwicklung) of a transaction, suspension (Aussetzung) of a transaction, rescission (Rücktritt) from a transaction, the loss of any vouchers) immediately and without further notice to the Bitpanda Client, if

      1.  

        such Bitpanda Client has been accused of (including any reasonably documented media reports or market rumors on): fraud, terror financing, money laundering, tax fraud, or any other breach or violation of relevant criminal, administrative or tax laws in any country of the world, being part of a Ponzi scheme of any kind, using matrix programmes/pyramid programmes/multi-level marketing or other high risk business detrimental to customers of any kind; unlawful activity in any country of the world; forbidden gambling; intellectual property or proprietary rights infringement, counterfeit or unauthorised goods; using/distributing drugs and drug paraphernalia or substances designed to mimic illegal drugs; producing/distributing adult content and services; using unfair, predatory or deceptive practice via customers or persons;  etc.

      2.  

        Bitpanda Metals has been informed of official investigations (by any competent public authority, in particular but not limited to any public prosecutors in the field of criminal law or tax agents) against such Bitpanda Client with respect to fraud, terror financing, money laundering, tax fraud, or any breach or violation of relevant criminal, administrative or tax laws in any country of the world.

      3.  

        a Bitpanda Client has breached his obligations under the GTC (e.g. any delayed payment) without curing such breach within “10 Business Days”.

      4.  

        a Bitpanda Client has breached any rules or regulations of a payment service provider.

      5.  

        a Bitpanda Client has breached any rules or regulations of Bitpanda GmbH.

      6.  

        a Bitpanda Client has opened more than one account with Bitpanda Systems.

      7.  

        a Bitpanda Client uses an account without legal entitlement to use such an account.

      8.  

        a Bitpanda Client conceals the correct identity by providing incorrect data regarding the Bitpanda Client Account or an account with a payment service provider.

      9.  

        a Bitpanda Client materially breaches the payment rules, in particular but not limited to item 8.11, as set forth under the GTC causing significant efforts without curing the problems within 10 Business Days.

      10.  

        a Bitpanda Client manipulates Bitpanda Systems or Bitpanda services. Such manipulation is in particular any use of an automated system (e.g. bot) or any other use which contradicts normal and typical trading behaviour of human beings and, hence, indicates the involvement of a certain technology, software and/or any system automating such trading, except such use has been previously agreed with Bitpanda Metals.

    3.  

      If Bitpanda Metals is engaged by you to remedy a declared and/or alleged deficiency and it is proven that no deficiency exists, existed or that the deficiency is or was in your sphere, Bitpanda Metals is entitled to charge compensation for any resulting expense.

    4.  

      Bitpanda Metals may charge – in addition to any damage claims which Bitpanda Metals might have against such Bitpanda Client – for its additional efforts in connection with items 4.2. and 4.3 a processing fee of up to EUR 50.00 or any part of E-Token having the value of up to EUR 50.00 at the time of the measure set in accordance with item 4.2 and 4.3.

    5.  

      Bitpanda Metals uses Bitpanda GmbH’s token system (F-Token and E-Token) which are booked in the respective storing sub-accounts (each a “Wallet”) of the respective Bitpanda Client Account. Only F-Token, E-Token and M-Token booked in the respective Wallets in the Bitpanda Client Account may and can be used for making a Bitpanda Client Offer with respect to offering Tokens. The Wallet for F-Token is named "Fiat Wallet".

    6.  

      F-Tokens, which are exclusively offered by Bitpanda GmbH, are designated

      1.  

        for support and facilitation reasons as an extra service for Bitpanda Clients, in particular to enable the Bitpanda Client to act faster with respect to Bitpanda Client Offers.

      2.  

        for the exclusive use of such F-Token within a Bitpanda System to exchange for Tokens. An exchange of F-Token outside of a Bitpanda System is impossible. An exchange of F-Token to another Bitpanda Client is impossible.

    7.  

      F-Token are designated to provide for quick options to act as Bitpanda Client as "support tools" for the Bitpanda Clients and shall in no event be seen as a deposit (Einlage) of any kind. Therefore, if a Bitpanda Client does not use an F-Token in exchange for another Token within a period of 12 months after such F-Token has been booked on the Bitpanda Client's Wallet (“Reference Period”), Bitpanda GmbH shall deduct F-Token and or parts of F-Token having the monetary value of EUR 5.00 (based on the figures used in the Bitpanda System) from the Bitpanda Client Account per calendar month as long as the Bitpanda Client does not make valid use of the respective F-Token. Every time the Bitpanda Client uses the respective F-Token the Reference Period restarts from zero.

    8.  

      You may send your M-Token to other Bitpanda Clients, however, Bitpanda Systems prohibit and do not allow the trade of M-Token between Bitpanda Clients.

  5.  

    Precious Metals Holdings

    1.  

      The precious metal is held in a form generally accepted in settlement of physical bullion markets around the world. The precious metals are physically stored and held by a vault operator and the only access to such holdings is via Bitpanda Systems. Bitpanda Metals is the contracting party of this vault operator (including the custody agreement). You agree and confirm that Bitpanda Metals has the contractual relationship with the vault operator. Hence, the agreement to manage your bullion is between you and Bitpanda Metals only. It is at Bitpanda Metals’ sole discretion to change the vault operator and the place of precious metals holdings anytime. You find current vault operators and places of precious metals holdings on Bitpanda’s website.

    2.  

      Bitpanda Metals shall inform the vault operator of the holdings of each Bitpanda Client, but you cannot contact the vault operator directly (e.g. access to holdings, information) in the absence of a direct contractual relationship.

    3.  

      By using Bitpanda Metals Services you agree and acknowledge that any precious metals’ holding you own do not relate to a specific bar but rather to portions of bars that when added up is equal to the full reserves of all Bitpanda Clients. By this method Bitpanda Metals is able to achieve its low prices while also giving the option to trade milligrams of precious metals.

    4.  

      Your M-Token holdings on Bitpanda Systems are charged with a storage fee. The concrete storage fee depends and varies on the type of M-Token (e.g. gold or silver, etc.). You find the current rates of the storage fee displayed on Bitpanda’s website. As such storage fee depends on external factors, which are outside of Bitpanda’s sphere, current rates and prices may vary and you confirm and accept, that rates of the storage fee are not guaranteed and may differ from time to time. The storage fee is calculated on the weighted average value of the respective M-Token (e.g. gold or silver, etc.) during your M-Token holding time. Such fee is due and payable (i) every Monday at 12:01 am or (ii) upon exchange of M-Token for E-Token, F-Token or another type of M-Token. You empower and grant Bitpanda Metals the right to deduct the storage fee from your M-Token. This deduction will take place at latest within four days after the storage fee is due and payable. If no M-Token is available, then the equivalent value will be deducted from the E-Token respectively F-Token.

  6.  

    Vouchers of Cooperation partners

    1.  

      Vouchers of cooperation partners may be offered on Bitpanda Systems as a pay-out option in case you wish to sell Token in exchange for a voucher of such a cooperation partner (“Cooperation Voucher”). Presently, Bitpanda System offers Cooperation Vouchers of Amazon EUR S.A.R.L. which can be used solely via www.amazon.de. Any changes, amendments and/or modifications of the offered Cooperation Voucher are at the sole discretion of Bitpanda Metals and Bitpanda GmbH and may take place at any time.

    2.  

      If you choose a payout option via Cooperation Voucher (see item 3.1.1), the chosen Cooperation Voucher will be bought in an amount equivalent to the value of the sold Token from the cooperation partner. Subsequently, Bitpanda System displays the code of the Cooperation Voucher in the Bitpanda Client's Account and sends it to Bitpanda Client's last disclosed email address. Upon displaying and sending the code of the Cooperation Voucher to your account and last disclosed email address the assumption of risk, especially the risk of use by third party and loss, passes to you.

    3.  

      It is not possible to return a Cooperation Voucher to Bitpanda Metals or Bitpanda GmbH.

  7.  

    Bitpanda to go

    1.  

      Bitpanda Systems offer vouchers, which can be used by you in exchange for M-Token on Bitpanda Systems ("Bitpanda To Go" or "Token-Voucher").

    2.  

      'Bitpanda To Go' is distributed via partner firms and can be exclusively used within a Bitpanda System after having become a Bitpanda Client.

    3.  

      Each Token Voucher has to be used in one single transaction. This means that the Token Voucher may not be split up for different transactions but may be used only for one single Bitpanda Client Offer. The exchange rates at the time of the use of the Token Voucher via Bitpanda Systems  (and not at the time of the purchase of the Token Voucher) apply (see item 8.1)

    4.  

      Each Token Voucher is valid only for a period of 3 years after the date of purchase of such Token Voucher.

    5.  

      Each Token Voucher is individualised and there is no possibility to recover any damaged Token Voucher or lost Token Voucher. Any such purchaser of Token Voucher is solely liable to keep the Token Voucher in such condition that it can further be used in the Bitpanda System. Whether Bitpanda Metals nor Bitpanda GmbH assumes liability for any damage or loss (including theft) of any Token Voucher by a purchaser of such Token Voucher and Bitpanda assumes no liability for any circumstances which are in the Token Voucher purchaser's sphere resulting in the fact that the Token Voucher cannot be used in a Bitpanda System.

  8.  

    Prices, Payment Conditions, Exchange and Transfer Conditions

    1.  

      Prices and/or exchange rates published in connection with the Final Offer Click are final and binding for the Bitpanda Client Offer (each a "Final Rate").

    2.  

      Final Rates contain the following parts, which are shown on the webpage of the Final Offer Click:

      1.  

        in case you want to purchase M-Token:


        i. offered amount in a currency that is legal tender


        ii. M-Token received if offer is accepted by Bitpanda Metals


        iii. bonus in the respective M-Token (volume of the bonus depending on which payment method you have chosen) booked directly on the M-Token Wallet if offer is accepted by Bitpanda Metals


        iv. Final Rate, being the sum of items i-iii above

      2.  

        in case you want to exchange F-Token for M-Token:


        i. ffered F-Tokens


        ii. M-Token received if offer is accepted by Bitpanda Metals


        iii. Final Rate, being the sum of items i-ii above

      3.  

        in case you want to exchange E-Token for M-Token:


        i. offered E-Tokens


        ii. M-Token received if offer is accepted by Bitpanda Metals


        iii. Final Rate, being the sum of items i-ii above

      4.  

        in case you want to exchange M-Token for F-Token:


        i. ffered M-Tokens


        ii. F-Token received if offer is accepted by Bitpanda Metals


        iii. Final Rate, being the sum of items i-ii above

      5.  

        in case you want to exchange M-Token for E-Token:


        i. offered M-Tokens


        ii. E-Token received if offer is accepted by Bitpanda Metals


        iii. Final Rate, being the sum of points i-ii above

      6.  

        In case you want to exchange M-Token for another different M-Token:


        i. offered M-Tokens


        ii. M-Token received if offer is accepted by Bitpanda Metals


        iii. Final Rate, being the sum of points i-ii above

      7.  

        In case you want to use Bitpanda Savings:


        i. offered amount in a currency that is legal tender


        ii. M-Token received if offer is accepted by Bitpanda Metals and pursuant to the applicable exchange rates listed on Bitpanda Systems at the time of CCOFA which occurs at the latest within 72 hours after the point in time specified by you in advance


        iii. Final Rate, being the sum of points i-ii above

    3.  

      Each Bitpanda Client Offer must at least have a monetary value (based on the figures used by Bitpanda Systems), stated by the respective Final Rate of EUR 1.00.

    4.  

      Payments in a currency which is legal tender to and from Bitpanda Systems from and to you are transferred by the respective payment service provider and not by Bitpanda Metals or Bitpanda GmbH.

    5.  

      Transfers of Token are conducted by Bitpanda Metals and/or Bitpanda GmbH within Bitpanda Systems.

    6.  

      Final Rates and/or any other payments or services have to be paid and/or transferred by you immediately after the Final Offer Click.

    7.  

      In case of using Bitpanda Savings, you can choose between SEPA direct debit mandate or recurring credit card debiting as payment method:

      1.  

        SEPA direct debit mandate: The respective payment amount is immediately payable and due for collection on the respective recurring purchase point in time specified by you in advance. By using SEPA direct debit mandate, you hereby revocably grant Bitpanda GmbH or a company affiliated with Bitpanda GmbH a SEPA direct debit mandate in order to collect the payments payable by you when due from your specified account by means of a recurring and regular SEPA direct debit. You hereby also authorise your bank to redeem the direct debits. Your bank is also entitled to decline direct debits, especially if your account does not have sufficient cover. You have the right to initiate a chargeback to your account within 56 calendar days (8 weeks) from the debit date without stating any reasons. Since you have been informed of the amount and the debit dates accordingly, you revocably waive the right to obtain pre-notifications before collections of direct debits are made. You are obliged to provide sufficient funds on your account on the due date. If collection via SEPA direct debit mandate is not possible (e.g. bank refuses or rejects the direct debit), you will bear any resulting costs (e.g. bank fees). This also applies if you terminate the SEPA direct debit mandate. In such a case, the provisions of point 8.9 and 8.10 apply equally. You are aware and accept that the initial setup of a SEPA direct debit mandate may take up to ten calendar days after submitting your necessary data to Bitpanda until it is fully implemented and hence, direct debits can be executed (the same applies in case you amend the amount of your Multiple Debit Order).

      2.  

        Recurring credit card payment: The respective payment amount is immediately payable and due for collection on the respective recurring purchase point in time specified by you in advance. Hence, you authorise Bitpanda GmbH to charge your credit card accordingly and in accordance with the general terms and conditions applicable for your credit card. You are obliged to provide sufficient funds on your credit card on the due date. If collection by credit card is not possible (e.g. insufficient funds), you will bear any resulting costs (e.g. credit card fees). In such a case, the provisions of point 8.9 and 8.10 apply equally.

      3.  

        If execution of a Multiple Debit Order is not possible, for whatever reason, no M-Token will be credited to your Bitpanda Client Account. In such a case, you will be notified by email of the failure of executing the order.

      4.  

        You may revoke a Multiple Debit Order issued by SEPA direct debit or credit card at any time. : A revocation of the SEPA direct debit shall take effect at the time of the event occurring earlier: (i) the revocation has arrived at your bank or (ii) at least two Business Days have elapsed since your revocation communicated to us.

      5.  

        Bitpanda Metals is entitled to refuse the service Bitpanda Savings to individual Bitpanda Clients for objective reasons.

    8.  

      Until the purchase price, including all fees and expenses, and/or any other outstanding amounts and/or claims have been fully paid, or any Tokens in exchange have been fully transferred to Bitpanda Metals, any Token or proceeds thereof, remain the property of Bitpanda Metals (Reservation of Title; Eigentumsvorbehalt) and Bitpanda Metals has a right of retention (Zurückbehaltungsrecht) regarding the Tokens of the respective Bitpanda Client. This reservation remains in force regardless of any form of processing or blending of goods, which may take place in any location worldwide.

    9.  

      You are in delay with your payment/transfer if the respective payment/transfer is not booked on Bitpanda Systems' accounts (including wallets and storages) at the time when the respective CCOFA (as set forth under item 3.1.5) has been completed by Bitpanda Metals or a collection via SEPA direct debit mandate cannot be fulfilled (see point 8.7). Bitpanda Metals cannot be in delay because it either accepts an offer by completing the respective CCOFA or denies an offer in all other cases of not completing the respective CCOFA.

    10.  

      In case you are in delay with your transfer, Bitpanda Metals may charge reminder fees to a reasonable relation to the amount in delay/value of transferred Tokens in delay and as far as such fees are necessary to cover adequate costs of Bitpanda Metals to administer such delay and enforce Bitpanda Metals' rights (a total amount of at least EUR 5.00 up to a maximum of EUR 15.00 will be charged). In case the respective Bitpanda Client does not settle debts within reasonable time, Bitpanda Metals reserves the right to entrust a debt collection agency with the collection of the claimed debt. In such a case Bitpanda Metals will additionally charge EUR 5.00 processing fee for claims between EUR 0 and EUR 500.00 and EUR 10.00 processing fee for claims of more than EUR 500.00. Furthermore, any additional expenses charged by the debt collection agency towards Bitpanda Metals complying with the "Verordnung des Bundesministers für wirtschaftliche Angelegenheiten über die Höchstsätze der Inkassoinstituten gebührenden Vergütungen"  (BGBI Nr. 141/1996 idgF), will be charged to the Bitpanda Client, as long as these are reasonable and necessary to cover adequate prosecution costs.

    11.  

      You have to fully comply with the data disclosure requirements in the payment processes, in particular when paying via SEPA. If you do not comply with the data disclosure requirements Bitpanda Systems cannot match the respective payment with your Bitpanda Client Account with the consequence that a manual tracking process has to start, for which Bitpanda Metals shall charge you a processing fee in addition to any damage claims (if any) according to item 4.3 above.

    12.  

      Bitpanda Metals reserves the right in all cases where a failure occurs with respect to payments from Bitpanda Systems to you, which is in your sphere (e.g. incorrect IBAN provided by you or technical failure of your payment service provider, etc) to transfer instead (parts of) available F- or E-Tokens having the same value in a currency which is legal tender at the time when the failure has occurred. The received F- or E-Tokens completely replace the payment without any further claim.

    13.  

      Bitpanda Metals reserves the right to change, amend and/or disallow accepted payment methods at its own discretion.

    14.  

      You are solely responsible for the accuracy of your own wallet-addresses inside a Bitpanda System and for ensuring that they are correct and kept up to date. Bitpanda Metals assumes no liability whatsoever for any failures of a Bitpanda Client with respect to wallet addresses inside a Bitpanda System.

  9.  

    Right of withdrawal

    1.  

      You must explicitly give up your 14-day right of withdrawal, from which consumers benefit according to section 11 of the Fern- und Auswärtsgeschäfte-Gesetz (FAGG), in order to allow Bitpanda Metals in accordance with section 18 para 1 no 11 FAGG to transfer M-Token before the right of withdrawal expires. Bitpanda System transmits a confirmation of the closed contract to the respective Bitpanda Client according to section 5 para 2 of the FAGG immediately after the CCOFA.

  10.  

    Data Protection

    1.  

      Over the course of delivering the negotiated services, Bitpanda Metals is compliant with the GDPR as set forth in the Data Protection Terms.

  11.  

    Risks

    1.  

      You as a Bitpanda Client understand and accept the following risks in connection with using Bitpanda Systems. In particular, but without being limited to these examples, you understand the inherent risks set forth above and hereinafter:

      1.  

        Risk of software weaknesses: The underlying software application and software platform, the Bitpanda Systems, mobile applications and System technology, the smart contract systems and other involved software and technology and technical concepts and theories are still in an early development stage and unproven. There is no guarantee or warranty that the process for receipt, use and ownership of any digital information units will be uninterrupted or error-free and there is an inherent risk that the software and related technologies and theories could contain weaknesses, vulnerabilities or bugs causing, inter alia, the complete loss of any digital information units, in particular but not limited to Token, Euros or any value of any cryptographic blockchain-based digital information units.

      2.  

        Regulatory risk: It is possible that certain jurisdictions will apply existing regulations, or introduce new regulations addressing, on blockchain technology-based applications and/or Services, which may have negative influence on the current setup of the Systems and which may, inter alia, result in substantial modifications of the any digital information units/Bitpanda System technology, including its termination or the loss of any digital information units or any value which any cryptographic blockchain-based digital information units might have. Bitpanda System technology is planned for a market, which is not regulated by financial markets rules. It is the design and intended structure not to fall under any financial market rules and Bitpanda Metals and Bitpanda GmbH intend to design, modify and/or adapt the Bitpanda System technology in such way that financial market rules are not applicable on any digital information units and/or Bitpanda System technology. Respectively within the regulatory risk category also changes in the Bitpanda System technology with respect to such adaptions, amendments and re-designs may cause termination or the loss of any cryptographic blockchain-based digital information units or any value which any cryptographic blockchain-based digital information units might have.

      3.  

        Risk of theft and internet vulnerability: The underlying software application and software platform, the Bitpanda System technology, the smart contract system(s), other involved software, other technology components and/or platforms may be exposed to electronic or physical attacks that could result in theft or loss of cryptographic blockchain-based digital information units, or the theft or loss of private data, impacting the ability to develop, launch or use Bitpanda System technology. You should be aware that SMS/messages and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Bitpanda Metals or Bitpanda GmbH. You should always log into your Bitpanda Client Account through https://www.bitpanda.com to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice. You should note that phishing attacks often occur despite SMS or email or equivalent services, via search engines or ads in search engines, or other fraudulent links. Neither does Bitpanda Metals nor Bitpanda GmbH take any responsibility for lost Tokens or any other funds due to spoofing, phishing or other equivalent attacks.

      4.  

        Risk of depreciation in value/volatility: The value of M-Token may experience extreme volatility.

      5.  

        General risk: There is no guarantee/warranty whatsoever on precious metals and/or the success of the Bitpanda System technology, expressed or implied, to the extent permitted by law, and that precious metals are obtained at the sole risk of the Bitpanda Client on an “as is” basis and without, to the extent permitted by law, any guarantees/warranties of any kind.

      6.  

        Tax risk: The tax consequences of the allocation or purchase of precious metals as well as the exchange of precious metals, the holding of precious metals, and/or any other action or transaction related to precious metals may have tax implications at the level of a Bitpanda Client; therefore, you should contact your own tax advisors on the tax consequences in connection with the Token and the Bitpanda System technology; by making a Bitpanda Client Offer to Bitpanda Metals, and/or by receiving, using or holding cryptographic blockchain-based digital information units, and to the extent permitted by law, you agree not to hold any associated party (including Bitpanda Metals, Bitpanda GmbH as well as their auditors, contractors, advisors, employees or founders) liable for any tax liability associated with or arising from making an Bitpanda Client Offer, the allocation, use or ownership of precious metals or any other action or transaction related to precious metals.

  12.  

    Warnings

    1.  

      Investing in cryptographic blockchain-based digital information units is highly speculative with a risk of loss of the entire capital invested. Such investment is only suitable for users, who can bear a loss of the entire invested capital.

    2.  

      Investing in cryptographic blockchain-based digital information units means investing in something totally new and unpredictable. Such investment is only suitable for users, who want to take maximum risk.

    3.  

      Cryptographic blockchain-based digital information units are no currencies or means of payment and are neither accepted by states, central banks nor must a private person accept them in any way.

    4.  

      Bitpanda Metals does not take any responsibility for the prices of precious metals and you trade in precious metals at your behalf and risk.

    5.  

      You use the offered Bitpanda Systems at your own risk.

  13.  

    Miscelleanous

    1.  

      Bitpanda group manages the Bitpanda Systems with due care. Nevertheless, systems for the exchange of digital information units combine various new fields of experimental technology and it is very likely that interruptions, failures and other problems occur. Neither Bitpanda Metals nor Bitpanda GmbH gives any guarantee with respect to finding solutions for any such problems as soon as possible. Bitpanda Metals and Bitpanda GmbH assume no responsibility other than to try to find solutions and therefore assume no liability whatsoever for any damage caused by interruptions of a Bitpanda System because any such interruptions are immanent in an experimental field of technology.

    2.  

      You are aware that technology-based systems like Bitpanda Systems need maintenance work and development work and that for such work interruptions of the systems (planned and unplanned) are necessary and system immanent.

    3.  

      Bitpanda Metals shall

      1.  

        via business clients only be liable for any direct and foreseeable damage in the case of intent or in cases physical damages of persons negligently caused by Bitpanda Metals.

      2.  

        via consumers only be liable for any direct and foreseeable damage in the case of intent, gross negligence or in cases of physical damages of persons negligently caused by Bitpanda Metals.

      3.  

        in no case be liable for indirect damages, consequential damages, especially regarding damages to other software, lost profit, pure property damages of a Bitpanda Client or third-party damage.

      4.  

        in particular not be liable for damages caused by interruptions of Bitpanda Systems which are necessary for maintenance work or to avoid network disturbances and/or which are caused by inevitable occurrences which are outside Bitpanda Metal's and Bitpanda GmbH’s control (e.g. energy network disturbances; regulatory authority interference or on-site visits; strikes, riots, environmental causes like earthquakes, storms, etc; wars or national or international conflicts with and without arms; international or national sanctions against certain products, services, persons, countries; legal limitations to cryptographic blockchain-based digital information units at any time or place worldwide; network interference, computer failures or criminal activities through third parties (for example hacking).

      5.  

        not be liable for and cannot guarantee that the security certificates displayed on any Bitpanda System are completely secure.

      6.  

        not be liable for any loss of customer data (e.g. due to hacker attacks) which are beyond Bitpanda Metal's and Bitpanda GmbH’s sphere. A Bitpanda Client shall be informed immediately about the loss of data.

      7.  

        assume no liability for (i) stored E-Token in any hot and/or cold wallet for a Bitpanda Client; (ii) information of the Bitpanda Client used for transactions into or out of Bitpanda Systems, (iii) transactions into or out of Bitpanda Systems, (iv) a Bitpanda Client or person using websites, mobile applications or services, not provided by Bitpanda Metals or Bitpanda GmbH such as third party wallet services or any other services of any third party and (v) any user's login data, Bitpanda Client login data, 2FA data, or other user data. In using websites or services, not provided by Bitpanda Metals or Bitpanda GmbH such as wallet services or any other services of any third parties, Bitpanda Metals and Bitpanda GmbH expressly disclaim any liability for the third-party services and are not responsible for the performance of the third-party services or supplier. You as a Bitpanda Client use these services completely at your own risk. Funds sent to such third parties cannot be reverted, as these parties are not willing to. We can and will not check the reliability of these third parties. We have no obligation to contact or solve the problem with any third party.

    4.  

      Bitpanda Metals undertakes to care for the M-Token stored by the Bitpanda Client to the extent to which it is reasonably technically manageable in Bitpanda Systems.

    5.  

      Bitpanda Metals has the right to disclose any data to any competent authority if the data is requested to be disclosed by such authority in order to track or investigate any relevant cases under the Austrian Criminal Code (StGB). Bitpanda Metals reserves the right to cooperate with such authorities to the maximum extent possible.

    6.  

      You accept and confirm with each transaction hereunder that you accept and confirm these GTC in the current form.

    7.  

      If one or more of the provisions of these GTC or one or more of the schedules hereto are or will become invalid or unenforceable, or if one or more of the provisions of these GTC or one or more of the schedules hereto are or will become incomplete, the other provisions of these GTC and the schedules hereto will remain valid without limitation, save that the main obligations of the parties hereunder remain unaffected. Such provisions – having been found illegal or unenforceable in whole or in part, shall be ineffective solely to the extent of such determination of invalidity or unenforceability only with respect to the jurisdiction in which it has been found illegal or unenforceable, without having any effect on any other jurisdiction. Each invalid or unenforceable provision shall be replaced or completed by a valid and enforceable provision in such a way that the new provision closely reflects the legal and economic effects the parties have concurrently aimed at in the invalid or unenforceable provision.

    8.  

      Changes to and amendments of these GTC, including this clause, may be made by Bitpanda Metals at any time and become effective at the earlier of (i) the Bitpanda Client accepts online the amended GTC or (ii) within 1 month after having published such changes or amendments.

    9.  

      The GTC exclusively govern the relationship between you and Bitpanda Metals and supersede any prior statements or agreements. Any terms and conditions (AGB) of you are excluded from being applicable on the relationship between you and Bitpanda Metals.

    10.  

      The failure of Bitpanda Metals to enforce or to exercise, at any time or for any period of time any term of or any right or remedy arising pursuant to or under the GTC shall not constitute, and shall not be construed as, a waiver of such term or right or remedy and shall in no way affect Bitpanda Metals' right to enforce or exercise it later, provided that such right is not time barred, expired or precluded. Any waiver to this effect must be explicitly made in writing.

    11.  

      Bitpanda Metals and you agree on English language with respect to our communication. Subject to the German terms in brackets referring to Austrian legal terms (which shall be interpreted only with respect to their meaning under Austrian law and with respect to the German language term in brackets), any other language used shall be only used for purposes of convenience. Respectively every communication or notice shall be made in English language. The English language version of these GTC is the prevailing version.

    12.  

      The GTC and any transaction hereunder shall be governed by and construed in accordance with the laws of the Republic of Austria to the exclusion of the provisions of the United Nations Convention on the International Sale of Goods and without giving effect to any statutory conflict of law provisions or rules that would cause the application of the law of any jurisdiction other than Austria.

    13.  

      Any and all disputes or divergences or claims shall be exclusively dealt with the court having pertinent competence for 1010 Vienna.

Annex I

Definitions

2FA Means the proof of identity of a Bitpanda Client by combining two different and independent components (factors).
Bitpanda Client has the meaning given to it in point 2.2.
Bitpanda Client Account has the meaning given to it in point 4.1.
Bitpanda Client Offer has the meaning given to it in point 3.1.4.
Bitpanda Metals has the meaning given to it in point 1.1.
Bitpanda Savings has the meaning given to it in point 3.1.2.
Bitpanda Swap has the meaning given to it in point 3.1.3.
Bitpanda Systems has the meaning given to it in point 1.1.
Bitpanda To Go has the meaning given to it in point 7.1.
Business Day Is a working day on which Austrian credit institutions are open to the public.
CCOFA or Contract Conclusion and Order Fulfillment Action has the meaning given to it in point 3.1.5.
Cooperation Voucher has the meaning given to it in point 6.1.
Default in Payment has the meaning given to it in point 3.1.5.
E-Token has the meaning given to it in point 3.1.
F-Token has the meaning given to it in point 3.1.
Fiat Wallet has the meaning given to it in point 4.5.
Final Offer Click has the meaning given to it in point 3.1.1.
Final Offer Click Savings has the meaning given to it in point 3.1.2.
Final Offer Click Swap has the meaning given to it in point 3.1.3.
Final Offer Clicks has the meaning given to it in point 3.1.2. and 3.1.3.
Final Rate has the meaning given to it in point 8.1.
M-Token has the meaning given to it in point 3.1.
Multiple Debit Order has the meaning given to it in point 3.1.2.
Offer Period has the meaning given to it in point 3.1.4.
Price Guarantee has the meaning given to it in point 3.1.1.
Reference Period has the meaning given to it in point 4.7.
Services has the meaning given to it in point 1.2.
Token has the meaning given to it in point 3.1.
Token Voucher has the meaning given to it in point 7.1.
Wallet has the meaning given to it in point 4.5.

Definitions

In the GTC, the following terms have the meanings specified or referred to in the following overview and shall be equally applicable to both the singular and plural forms.