applicable as of 16 December 2021
1.1 Bitpanda GmbH is a company with limited liability established and existing under the laws of Austria, having its registered seat in Vienna, and its registered business address at Stella-Klein-Löw Weg 17, 1020 Vienna, Austria registered in the Austrian Companies Register under registration number FN 423018 k ("Bitpanda").
1.2 Bitpanda and its subsidiaries provide online services and products in relation to digital assets. Bitpanda operates an ecosystem that comprises all services and products offered by Bitpanda and its subsidiaries, in particular on the platform www.bitpanda.com and via Bitpanda Apps there ("Bitpanda Ecosystem"). As part of the Bitpanda Ecosystem, Bitpanda has issued an ERC20 token on the Ethereum Blockchain under the name "Bitpanda Ecosystem Token" (such token, "BEST").
1.3 These terms and conditions ("Terms") exclusively and comprehensively govern the relationship between Bitpanda and any holder of BEST.
1.4 In these Terms, unless the context requires otherwise terms to which a non-English translation has been added to a particular term shall be interpreted as having the meaning assigned to them by the non-English translation.
1.5 By accepting these Terms, you confirm to have carefully reviewed and accepted these Terms and fully understand the risks and costs connected with BEST.
2.1 BEST is a pure trade token (also known as a no-rights token) and therefore does not convey any claims or rights - however structured - beyond ownership rights of BEST. In particular, BEST does not convey or represent any rights, claims or entitlements on whatever legal basis, contingent or actual, against Bitpanda, any of its subsidiaries, any other participant of the Bitpanda Ecosystem or any other third parties. In particular, BEST does not convey or represent any rights or entitlements to (i) use BEST for the payment of fees, costs and other charges on the Bitpanda platform or (ii) to interest, dividend payments, (re-)payments of capital, voting rights, or any right associated with corporate decision making. If and to the extent that such claims, rights or entitlements, on whatever legal basis, should exist, such claims, rights or entitlements, on whatever legal basis, actual or contingent, known or unknown, are waived upon acceptance of these Terms.
2.2 Therefore, no form of partnership, joint venture or any similar relationship or any entitlement (Anwartschaft) on such status between any holder of BEST on the one side and Bitpanda, any of its subsidiaries, any other participant of the Bitpanda Ecosystem or any other third parties on the other side is established, by holding BEST.
2.3 For the avoidance of doubt, Bitpanda may offer loyalty benefits to participants in the Bitpanda Ecosystem, which loyalty benefits may require the holding of BEST. The offering of such loyalty benefits (or any other benefits in the Bitpanda Ecosystem) does not, and shall not be construed to purport, any rights, claims or entitlements connected to BEST.
3. Further Agreements and Disclaimers
3.1 This document is not a solicitation for investment and does not pertain in any way to an offering of securities in any jurisdiction.
3.2 By accepting these Terms you, acknowledge, agree and confirm that:
3.2.1 BEST is to be treated as untouchable movable thing (unkörperliche bewegliche Sache) as defined under Austrian law;
3.2.2 BEST does not qualify as any currency (Währung), eletronic money (E-Geld), means of payment (Zahlungsmittel) and/or commodities (Waren inklusive Handelswaren);
3.2.3 BEST are not securities and do not carry with them any rights as may be commonly associated with securities. Consequently, there is no capital market prospectus and capital market regulation does not apply to BEST; and
3.2.4 Bitpanda may at its sole discretion decide how to handle forks or splits of BEST. Respectively, Bitpanda may decide – in particular but not limited – to keep any forked or split new token(s)/coin(s), hand out forked or split new token(s)/coin(s) to its holder, provide or not to provide wallets for any forked or split new token(s)/coin(s), etc.
3.3 By accepting these Terms you, represent (gewährleistest) for the benefit of Bitpanda that you
3.3.1 are not a citizen or resident of a country, whose legislation conflicts with the acquiring or holding of BEST (e.g., not a citizen or resident of the USA or Peoples Republic of China);
3.3.2 you are solely responsible for complying with any laws, rules and regulations, in particular restrictions, governing the acquisition, receipt, use, holding, exchanging and/or transferring BEST.
3.3.3 deeply understand the functionality, usage, storage, transmission mechanisms and intricacies associated with cryptographic tokens and blockchain-based software systems (including but not limited to ERC20 token such as BEST);
3.3.4 are legally permitted to acquire, receive, use, hold, exchange and transfer BEST in all jurisdictions being relevant for, or applicable to, you;
3.3.5 are of legal age and have the legal capacity (Geschäftsfähigkeit) to enter into and fully accept these Terms;
3.3.6 take sole responsibility for any restrictions and risks associated with your decision of acquiring, receiving, using, holding and exchanging or transferring BEST;
3.3.7 are not acquiring, receiving or using BEST for any illegal purposes;
3.3.8 have considered, understand and accept any risks, in particular commercial risks and the risks outlined below, associated with acquiring, receiving, using, holding and exchanging or transferring BEST; and
3.3.9 accept that you cannot influence the smart contract system(s) which are in place and/or will be put in place with respect to BEST (only Bitpanda as the issuer of BEST may influence and amend such systems).
4.1 You understand and accept that acquiring, receiving, using, holding and exchanging or transferring BEST entails risks, and not only opportunities. In particular, but without limitation, you understand, acknowledge and agree to the following risks:
4.1.1 Risk of depreciation in value / extreme volatility
BEST may not develop a value or any value developed may decrease, depreciate or diminish. The value of BEST may be volatile, subject to significant fluctuations, and the price for BEST may drop below the price you have paid for BEST. Prices for digital assets have historically been particularly volatile. As a result of this volatility, you may not be able to sell your BEST at or above the price you paid. Some, but not all, of the factors that may cause the value and the price of BEST to fluctuate include:
You in particular acknowledge that Bitpanda and/or persons related to, or affiliated with, Bitpanda hold, individually or jointly, a significant portion of the total supply of BEST. Bitpanda and/or persons related to, or affiliated with, Bitpanda may sell or otherwise transfer, at once or in smaller or larger portions, the BEST held by them. This may affect the price of BEST.
You in particular accept that the value of BEST might decline to zero.
4.1.2 Risk of software weaknesses
The underlying smart contract systems, software application and software platform, the Bitpanda Ecosystems (including – but not limited – the BEST-smart contract), mobile applications and system technology and other involved software and technology and technical concepts and theories in connection with Bitpanda Ecosystem are constantly in a development and may not proof to be sufficient. There is no guarantee or warranty that the process for receipt, use and ownership of any cryptographic blockchain-based 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 cryptographic blockchain-based digital information units, in particular but not limited to token, Euros or any value of any cryptographic blockchain-based digital information units.
4.1.3 Regulatory risks
Blockchain technologies allow new forms of interaction. It is possible that certain jurisdictions will apply existing regulations, or introduce new regulations on blockchain technology-based applications/Bitpanda system technology, which may have negative influence on the current setup of the Bitpanda Ecosystem and which may, inter alia, result in substantial modifications of the Bitpanda Ecosystem, including its termination or the loss of BEST or any value which BEST 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 or any of its affiliates intends to design, modify and/or adapt the technology in such way that financial market rules are not applicable on any cryptographic blockchain-based digital information units and/or Bitpanda system technology. Respectively within the regulatory risk category also changes in the Bitpanda Ecosystem with respect to such adaptions, amendments and re-designs may cause termination or the loss of BEST or any value which BEST might have.
4.1.4 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 in connection with Bitpanda Ecosystem may be exposed to electronical or physical attacks that could result in theft or loss of cryptographic blockchain-based digital information units including BEST, or the theft or loss of private data, impacting the ability to develop, launch or use the Bitpanda Ecosystem. 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 or any of its affiliates. 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 Bitpanda nor any of its affiliates does take any responsibility for lost BEST or any other funds due to spoofing, phishing or other equivalent attacks.
4.1.5 Risk of blockchain mining attacks
As with other public blockchain-based systems the Bitpanda Ecosystem may be susceptible to attacks including but not limited to double-spend attacks, majority mining power attacks, “selfish-mining” attacks, and race condition attacks or any other mining or non-mining related attacks. Any successful attacks present a risk to the Bitpanda Ecosystem, expected proper execution and sequencing of BEST transactions, and expected proper execution and sequencing of software computations.
4.1.6 Market and community risk
You are aware of the risks of soft and hard forks and splitting including the broad possible changes to BEST which might be imposed by the market/community on BEST and Bitpanda Ecosystem.
4.1.7 Tax risk
The tax consequences of the allocation or purchase of BEST, the exchange of token into BEST, as well as the sale of BEST, the exchange of BEST into token, the holding of BEST, the use of BEST, the participation in Bitpanda’s loyalty programme (if offered) the alienation of BEST and/or any other action or transaction related to BEST may have tax implications for, and tax effects on, you. You, therefore, should contact your own tax advisors on the tax consequences in connection with BEST and the Bitpanda Ecosystem; you agree indemnify and hold harmless Bitpanda and its affiliates and representatives, auditors, contractors, advisors, employees and founders from any tax liability associated with or arising from acquiring, receiving, using or holding and exchanging BEST or any other action or transaction related to Bitpanda Ecosystem.
5. Liability and Warranty
5.1 Bitpanda shall not be liable for damages arising from, (i) the typical risks of the extreme volatility of crypto assets such as the BEST, (ii) fault of third parties or due to non-attributable interruption of the availability of Bitpanda systems, (iii) (transaction) losses made using fraudulently acquired payment data, private keys , passwords or other contractual data (e. g. e.g. "phishing" of credit card data, identity theft, etc.).
5.2 Bitpanda shall not be responsible for any failure or non-delivery of its services if such failure or non-delivery is due to circumstances beyond Bitpanda's control (without Bitpanda being at least negligently in breach of a related contractual obligation). Such circumstances may include, but are not limited to, disruptions in the operation of Bitpanda's systems as a result of changes in the law, governmental or regulatory actions, acts of war, terrorism, strikes, physical obstructions, lockouts and natural disasters.
5.3 Bitpanda's liability for damages caused by slight negligence is excluded. This limitation of liability shall not apply to damage due to loss of life, physical integrity, impairment of the health of persons or to claims arising from the primary obligations (providing the possibility to hold the BEST) of Bitpanda or claims under the Austrian Product Liability Act (Produkthaftungsgesetz).
5.4 BEST serves as a pure trade token and does not convey any rights beyond the ownership of BEST itself. If you are an entrepreneur your rights vis-à-vis Bitpanda are thus limited to any mandatory rights, in particular mandatory warranty rights (zwingendes Gewährleistungsrecht) as provided for under Art. 922 et seqq of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch), if and to the extent applicable to you. Thus, unless you acquired BEST from Bitpanda in your capacity as consumer in the sense of the Consumer Rights Directive or the Austrian Consumer Protection Act, any rights vis-à-vis Bitpanda, in particular warranty rights and claims for adjustment or challenge on the basis of error (Irrtum), are explicitly excluded. If you are a consumer, the Austrian statutory warranty rights are not limited or excluded unless otherwise agreed in individual contracts.
6.1 Should any one or more of the provisions or any part of a provision of this Terms be or become void, illegal or unenforceable, then the validity, legality or non-enforceability of the remaining provisions of this Terms shall not be affected thereby and the parties shall use reasonable efforts to agree upon a new provision which shall, as nearly as possible, have the same commercial effect, meaning and spirit as the ineffective provision and to the purpose of these Terms. To the extent permitted by applicable law, each party waives any provision of law which renders any provision of these Terms invalid, illegal or unenforceable in any respect. This clause (6.1) is not applicable in case that you are a consumer in the sense of the Consumer Rights Directive or the Austrian Consumer Protection Act.
6.2 Changes to these Terms, including this clause, may be made by Bitpanda if it is legally required or it does not affect a primary obligation or worsen your legal position, at any time and will apply to you if (i) you expressly agree to the new Terms or (ii) you do not object and remain silent for 8 weeks from the date we publish the changes. In this case, however, Bitpanda will inform you separately and in advance of the consequences for you that if you remain silent for 8 weeks, we will consider this as agreement to the changes of these Terms.
6.3 You are obliged to inform Bitpanda immediately of any change of your e-mail address. Bitpanda will send legally significant declarations (rechtlich bedeutsame Erklärungen) to the last e-mail address indicated by you. As long as you do not inform Bitpanda of a new e-mail address, legally significant declarations are deemed to have been delivered to you, provided that they are actually transmitted to the e-mail address that was the last e-mail address indicated by you. Furthermore, delivery to the e-mail address follows the same rules as delivery by post, so that absences due to holidays or illness can lead to a later fictitious delivery.
6.4 These Terms and all rights and obligations of the parties arising out of or in connection with these Terms shall be governed by and construed in accordance with Austrian law excluding the conflict of law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods from 11.04.1980 (CISG), unless you acquired BEST from Bitpanda in your capacity as consumer in the sense of the Consumer Rights Directive or the Austrian Consumer Protection Act, in which case any mandatorily applicable laws apply to these Terms in addition, superseding any contrary Austrian law.
6.5 The competent court in 1010 Vienna, Austria, having jurisdiction over the subject-matter shall have exclusive jurisdiction to settle any disputes arising out of or in connection with these Terms or related to its creation, validity, nullity, interpretation, performance and termination as well as its pre- and post-contractual effects, unless otherwise provided by mandatory law, unless you acquired BEST from Bitpanda in your capacity as consumer in the sense of the Consumer Rights Directive or the Austrian Consumer Protection Act, in which case any mandatory jurisdiction supersedes this jurisdiction clause.