General Terms and Conditions Bitpanda x Lydia
1. General Provisions
1.1 The general terms and conditions herein ("GTC") will apply starting April 11th, 2023 exclusively to any transactions, contracts and business relationships with Bitpanda GmbH, with its corporate seat in A-1020 Vienna, Campus 2, Jakov-Lind-Straße 2 ("Bitpanda"), which a natural or legal person is conducting within the interface and platform of Lydia Solutions SAS, with its corporate seat in 14 avenue de l'Opéra 75001 Paris, France, registered with the commercial register under 534 479 589 ("Lydia" or “Cooperation Partner”). For using the Bitpanda services, in particular including transactions and business relationships with/on any online or electronic platform (e.g. https://www.bitpanda.com/) or mobile application of Bitpanda and associated APIs of such platform or application (“Bitpanda Systems”), within the interface and platform of Lydia, Lydia and Bitpanda have entered into a dedicated cooperation (such Bitpanda services offered within the Lydia interface and platform are hereinafter referred to as “Cooperation Services”). Cooperation Partner acts as a mere technical service provider for Bitpanda to enable usage of Bitpanda Services within Cooperation Partner’s interface. The Cooperation Services are offered together with third parties, e.g. Bitpanda Metals GmbH (corporate seat in A-1020 Vienna, Campus 2, Jakov-Lind-Straße 2; commercial register: FN 511923 d), Bitpanda Financial Services GmbH (corporate seat in A-1020 Vienna, Campus 2, Jakov-Lind-Straße 2; commercial register: FN 551181 k) and/or Bitpanda Payments GmbH (corporate seat in A-1020 Vienna, Campus 2, Jakov-Lind-Straße 2; commercial register: FN 501412 x). For services of such third-party providers, their terms and conditions may apply in addition to these GTC. Also, the terms and conditions of Lydia apply when using the Cooperation Services.
1.2 The Cooperation Services are exclusively offered to natural persons that are requesting the use of the Bitpanda services via the Cooperation Partner interface and only offered to persons of legal age. You are aware and accept that Cooperation Services may only be accessed via the Cooperation Partner interface and not directly via the Bitpanda Systems.
2. Becoming a Bitpanda Client
2.1 Persons interested in using the Cooperation Services must be registered at 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 the Cooperation Partner or Bitpanda) is called a "Bitpanda Client" or “you”. This means that by using the Cooperation Services via the Cooperation Partner`s interface, also a full and complete Bitpanda Client account is created for you. For the avoidance of doubt, any and all benefits potentially and voluntarily granted by Bitpanda under the Bitpanda loyalty programme are solely granted to Bitpanda Clients using the Bitpanda interface, excluding users of Cooperation Partners, regardless of whether they become Bitpanda Clients or not. You are therefore not entitled to any benefits under the Bitpanda loyalty programme.
2.2.1 To use the Cooperation Services, you must 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. You acknowledge and accept that your verification status, including certain personal data, may be forwarded to Bitpanda by the Cooperation Partner or any of its affiliates or third party providers (this shall ensure an easy and fast creation of your Bitpanda Client account).
2.2.2 To use the Cooperation Services, you must subscribe to a paying Lydia plan (the “Plans”). The Terms and Conditions of Lydia Plans can be found on the Cooperation Partner’s website.
Unless otherwise specified, the Bitpanda Client will be able to access the Cooperation Services via the Cooperation Partner’s interface, but the buy functionality will not be available for those Bitpanda Clients who hold A-Token, E-Token or M-Token but failed to sign up for a Plan. However, the“Bitpanda Client” will still be able to hold and sell their already owned assets.
2.3 You ensure that you hold any and all details of your password confidential. You understand that you act on your own behalf and create an account for yourself only. It is forbidden to act as an 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. Only after (i) providing sufficient proof, (ii) careful consideration/assessment from the Compliance Department, and (iii) special granted approval, you may be entitled to create an account on behalf of an individual or legal entity.
2.4 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 or the Cooperation Partner may exclude other jurisdictions from Bitpanda's services as well.
2.5 When a password is reset, Bitpanda may pause any payment to and/or transfer of Tokens (as defined in item 3.1) to you or out of the 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.
2.6 You, as a Bitpanda Client, shall:
2.6.1 ensure prompt execution of any contracts and shall refrain from activities which would thwart or endanger such execution;
2.6.2 immediately report all defects or other problems which you either cause or get aware of and shall assist Bitpanda to remedy the problem;
2.6.3 immediately update via a Bitpanda System or submit to Bitpanda via your registered mail any changes of your personal data (name, mailing/postal address and email address). You are aware and accept that Bitpanda shall always use the last email address and last postal address which you shared with Bitpanda, and that any message delivered to such email or postal address shall be legally delivered;
2.6.4 provide Bitpanda or the Cooperation Partner with any reasonable data and/or information that is needed in order to provide the Cooperation Services to you. This includes, but is not limited to, details to and proof of funds (such as banking statements or any other details provided by banks or financial institutions, contracts of sales or contracts in general, or any other suitable data to prove or determine the origin of funds, if exceeding the daily/monthly or general limits on Bitpanda or the Cooperation Partner). You acknowledge that documents and data you submit must be verified. Bitpanda and the Cooperation Partner take reasonable efforts to verify your documents as quickly as possible. However, it may happen that a verification process is delayed (e.g. due to high trading activity in the Bitpanda Systems). As a result, execution of your requested transaction may be delayed or - in case the documents you submitted are not deemed sufficient by Bitpanda or the Cooperation Partner in their sole discretion - may not be carried out at all. In such cases, Bitpanda or the Cooperation Partner shall not be liable for any damages whatsoever resulting from a delayed or canceled execution of your requested transaction (e.g. exchange rate losses).
2.7 Bitpanda and/or the Cooperation Partner require certain specified information from you in the process of becoming a Bitpanda Client. You are aware and accept herewith that Bitpanda and/or the Cooperation Partner may decide at their sole discretion at which point in time you must deliver e.g. 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 or applicable AML/CFT regulation; 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.
2.8 In case Bitpanda or the Cooperation Partner terminate their cooperation and/or decide to pause, stop or terminate offering the Cooperation Services for whatever reason (e.g. due to downtime of the Cooperation Services in the sphere of the Cooperation Partner) you will not be able to use the Cooperation Services. You acknowledge and accept that you shall not have a legal claim whatsoever against Bitpanda or the Cooperation Partner in case of downtime of the Cooperation Services or in case Bitpanda or the Cooperation Partner decide to stop, pause or terminate the offering of Cooperation Services. Bitpanda and/or the Cooperation Partner will undertake their best efforts to (i) inform you in due time of any concrete measures taken and (ii) under certain circumstances (e.g. if the Cooperation Partners services are down for a certain period of time) migrate and transition you, if possible, to the Bitpanda System (in such case the standard Bitpanda T&Cs will apply). Such transition may include the necessity to transfer certain user data from the Cooperation Partner to Bitpanda. The actual extent to which the Cooperation Partner’s clients are integrated into the Bitpanda Systems (e.g. trading options, wallet services) is at Bitpanda's sole discretion. In particular, Bitpanda reserves the right not to provide an integration into the Bitpanda Systems.
2.9 In the event of (i) pause, stop or termination of the Cooperation Services, (ii) closure of your Bitpanda Client account (e.g. for security or AML reasons) or (iii) unsuccessful or not performed user migration from the Cooperation Partner to Bitpanda, you may not be able to access your Bitpanda Client account and any Token held on your Bitpanda Client Wallets. Bitpanda and the Cooperation Partner will undertake their best efforts to inform you and offer you a solution to access your Token holdings and ask for your cooperation in such cases. You acknowledge and accept that neither Bitpanda nor the Cooperation Partner are obliged to offer you a solution to access your Token and that you do not have a legal claim against Bitpanda in case of occurrence of an event listed in this item 2.9.
3. Bitpanda Broker
3.1 Bitpanda’s group, together with the Cooperation Partner, provide systems for buying and selling (i) cryptographic blockchain-based digital information units, such as, but not limited to, Bitcoin, Dash, Ripple, Bitcoin Cash, Ether and Litecoin, ("E-Token"), (ii) financial derivative contracts in relation to stocks or shares in exchange traded funds (“A-Token”) and (iii) precious metals (“M-Token”, together with E-Token and A-Token referred to as "Token”) with a currency that is legal tender. The Tokens traded on the Bitpanda Systems and offered together with the Cooperation Partner can be changed, amended or modified at any time and in the sole discretion of Bitpanda and/or the Cooperation Partner. The services with respect to M-Tokens are offered by Bitpanda Metals GmbH and not by Bitpanda itself. Any services with respect to A-Tokens are offered in cooperation with Bitpanda Financial Services GmbH.
3.1.1 A sale/purchase with Bitpanda, by using the Cooperation Partner’s interface, is exclusively done in the following way: You offer bindingly to sell or buy (part of) Token(s) to or from Bitpanda. To make such a 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 the "Buy now" or "Sell now" button/item (ii) referred to as the "Final Offer Click"). The conditions offered by Bitpanda for your order are valid for a certain time period as displayed on the respective trading screen ("Price Guarantee") which is the maximum time to validate and confirm the conditions by the Final Offer Click. You acknowledge and agree that Bitpanda or the Cooperation Partner may at any time and in its sole discretion change the duration of the Price Guarantee and/or may vary the Price Guarantee for certain Tokens. 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 your requested Token in exchange for the specified amount in a currency which is legal tender" and the word "sell" is to be interpreted and qualified exclusively as "binding offer to accept the receipt of the specified amount in a currency which is legal tender in exchange for the Token".
3.1.2 The offers mentioned in item 3.1.1 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 will confirm to you, via the Cooperation Partner’s interface, the receipt of the Bitpanda Client Offer after having received it.
3.1.3 After having received a Bitpanda Client Offer, Bitpanda may or may not accept such offer by factual fulfilling of the offer at Bitpanda's sole discretion within the Offer Period (the "Contract Conclusion and Order Fulfillment Action" or "CCOFA"). For any payments in a currency that is legal tender from and to you, Bitpanda may use a payment service provider. In case Bitpanda factually fulfilled the Bitpanda Client Offer without full receipt of the payment as agreed in the Bitpanda Client Offer, you are obliged to pay such outstanding amount ("Default in Payment"). In case of any Default in Payment the consequences as outlined in item 4.1 and 7.8 apply.
3.2 Any figures, numbers, exchange reference prices or other relevant publications by Bitpanda or the Cooperation Partner, either on relevant websites or mobile applications 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 (invitation ad offerandum) via the Cooperation Partner’s interface.
3.3 Bitpanda exclusively allows Bitpanda Clients to make exchange offers based on positive balances on your respective Bitpanda Client account or Cooperation Partner account. Short selling, meaning an offer in relation to Token which is not booked as a positive balance on the respective Client account, is forbidden and blocked by the system. A Bitpanda Client Offer is technically limited by your positive balance of such offer and the limits pursuant to your verification level. Bitpanda and/or the Cooperation Partner reserve the right to further limit the range of a Bitpanda Client Offer at Bitpanda's sole discretion to certain specified limits per Bitpanda Client. Certain trade limits may also be applied not only for buying, but also for selling Tokens and are subject to Bitpanda’s and/or the Cooperation Partner’s sole discretion. You acknowledge that you do not have a legal claim whatsoever against Bitpanda and/or the Cooperation Partner in case you cannot buy or sell certain Tokens due to trading limits.
3.4 Delays in the processing of the Bitpanda Client Offers can occur due to unforeseen technical disruptions. Therefore, neither Bitpanda, the Cooperation Partner nor any of their affiliates does offer any guarantee of immediate offer processing nor assume 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 as outlined in item 3.1.1 of these GTC.
3.5 You are aware that there might be significant delays when shipping Tokens to your Bitpanda Client wallet, since most Tokens are stored "cold", which means offline. Respectively, additional non-automated handling might be necessary triggering such delays.
4. Bitpanda Client Account
4.1 Bitpanda and/or the Cooperation Partner reserve the right to lock and/or freeze and/or close a Bitpanda Client account (including the blocking of a transaction, the reversal of a transaction, the suspension of a transaction, the rescission from a contract/transaction, the loss of any vouchers) immediately and without further notice to you, if
4.1.1 such Bitpanda Client has been accused of (including any reasonably documented media reports or market rumors on): fraud, terrorist 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 programs/pyramid programs/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.;
4.1.2 Bitpanda or the Cooperation Partner 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;
4.1.3 a Bitpanda Client has breached his obligations against Bitpanda under the GTC (e.g. any delayed payment) without curing said breach within 10 “Business Days”;
4.1.4 a Bitpanda Client has breached any rules or regulations of a payment service provider;
4.1.5 a Bitpanda Client has breached any rules or regulations of Bitpanda Metals GmbH;
4.1.6 a Bitpanda Client breaches the single payment service provider account rule and uses together with another Bitpanda Client the same payment service provider account (e.g. bank account, Neteller account, etc) or use a third-party bank account, third-party credit cards etc;
4.1.7 a Bitpanda Client uses an account without legal entitlement to use such account;
4.1.8 a Bitpanda Client conceals the correct identity by providing incorrect data regarding the Bitpanda Client account, the Cooperation Partner’s account or an account with a payment service provider;
4.1.9 a Bitpanda Client materially breaches the payment rules, in particular but not limited to as set forth under the GTC causing significant efforts without curing the problems within 10 business days.
4.1.10 a Bitpanda Client manipulates Bitpanda or the Cooperation Partner’s Systems or any Cooperation 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 or tolerated by Bitpanda or the Cooperation Partner;
4.1.11 a Bitpanda Client conducts their business in such a way or uses Cooperation Services in such a way that leads to direct debit chargebacks, credit card chargebacks or violations of regulations of involved banks or credit card companies;
4.1.12 a Bitpanda Client conducts their business in such a way or uses the Cooperation Services in such a way that causes damage, disadvantages or losses for Bitpanda or the Cooperation Partner and/or impairs any provided Cooperation Services.
4.2 If Bitpanda or the Cooperation Partner 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 or the Cooperation Partner is entitled to charge compensation for any resulting expense.
4.3 Bitpanda may charge - in addition to any damage claims which Bitpanda might have against such Bitpanda Client - for Bitpanda's additional efforts in connection with items 4.1 and 4.2 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 such measure.
4.4 To provide Cooperation Services, Bitpanda uses its own token system (E-Token, M-Token and A-Token) which are booked in the respective storing sub-accounts (each a "Wallet") of the respective Bitpanda Client account. Only such 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 selling Tokens.
4.5 The Cooperation Services prohibit sending Tokens between and to other Bitpanda Clients. Furthermore, the Cooperation Services do not support deposits and withdrawals of E-Tokens from and to any external wallet, service provider or to the Cooperation Partner.
4.6.1 For any airdrop by Bitpanda itself ("Bitpanda Airdrop"), Bitpanda automatically books the respective Token or any other digital information unit distributed in such Bitpanda Airdrop to the respective Bitpanda Client account. Bitpanda may decide at its own discretion whether to grant Airdrops to Bitpanda Clients accessing the Bitpanda Systems through the Cooperation Partner’s interface.
4.6.2 For any airdrop of other persons than Bitpanda, Bitpanda does not automatically credit any Token or any other digital information unit to the respective Bitpanda Client account. Bitpanda does not and will not inform you on airdrops other than Bitpanda Airdrops.
5. Bitpanda Fork Policies
5.1 Bitpanda applies the fork policy as attached hereto in Annex I ("Bitpanda Fork Policy") and you accept the Bitpanda Fork Policy as part of the GTC.
6. Bitpanda Crypto Index
6.1 The Bitpanda Systems offer the option to purchase, sell or exchange several E-Tokens in one transaction via the "Bitpanda Index". To exchange and purchase/sell via Bitpanda Index, the respective provisions in section 3 (in particular 3.1.1, 3.1.2 and 3.1.3) of these general terms and conditions shall apply equally.
6.2 By using the Bitpanda Index, you can create a number of Bitpanda Client Offers with one 'click' and purchase, sell or exchange E-Tokens according to a predefined allocation of funds. This means that you create combined Bitpanda Customer Offers for Tokens according to the allocation of funds they have selected.
6.3 The Bitpanda Systems offer different allocations of funds from which Bitpanda customers can choose freely and independently. The weighting of the allocation of funds and the respective (re)calculation of the allocation of funds is carried out by external partners who are independent of Bitpanda and the Cooperation Partner ("Index Provider") and neither Bitpanda nor the Cooperation Partner have influence on this. You acknowledge and accept that the allocation of funds is not created by Bitpanda itself and that the unlimited availability of the allocation of funds in Bitpanda Systems or as Cooperation Services cannot be guaranteed at all times. In particular, Bitpanda and the Cooperation Partner reserve the right, at their sole discretion, to change, modify or terminate the offered allocation of funds at any time and to exclude or remove individual tokens from the allocation of funds or not to include individual tokens in the allocation of funds if there are important reasons for this (e.g. regulatory requirements). Bitpanda ensures that neither financial instruments nor other regulated financial products are included in an allocation of funds.
6.4 The current balance of E-Tokens held using the Bitpanda Index is recorded and displayed in a separate wallet in the respective Bitpanda Client account ("Index Wallet"). You, as a Bitpanda Client, do not purchase a complete product or an index-representing token, but individual E-Tokens according to the allocation of funds you have selected (e.g. BCI 5).
6.5 The allocation of funds provided by the Bitpanda Systems are adjusted to the parameters (e.g. market capitalisation) specified in the respective allocation of funds ("Rebalancing") pursuant to a predefined period of time (e.g. at the end of the month). Rebalancing creates corresponding Bitpanda Client offers for the exchange, purchase or sale of E-Tokens recorded and displayed in the Index Wallet. You hereby confirm and grant Bitpanda and the Cooperation Partner the right to carry out the corresponding and periodic exchange, purchase and/or sale orders for E-Tokens according to the allocation of funds you have selected. In addition, you accept and agree to pay all applicable fees in connection with the exchange, purchase and/or sale orders placed in the Rebalancing process. Rebalancing will generally take place no later than four business days after the end of a period. Bitpanda reserves the right, however, to only execute exchange, buy or sell orders within the scope of Rebalancing at its sole discretion once certain minimum sizes per order have been reached. You are aware and hereby confirm that the rebalancing may have tax implications for you as a Bitpanda Client.
6.6 It can sometimes be the case that certain E-Tokens included in the allocation of funds are not offered on the Bitpanda Systems or within the Cooperation Services. In such cases, Bitpanda will take appropriate steps to integrate these E-Tokens into the Bitpanda Systems and Cooperation Services within a reasonable period of time. Should Bitpanda have successfully completed the integration of the respective E-Token, this E-Token will be added to the next Rebalancing and the corresponding Index Wallet at the price displayed in the Bitpanda Systems on the day of the subsequent Rebalancing. The actual extent to which E-Token are integrated into the Bitpanda Systems (e.g. trading options, wallet services) is at Bitpanda's sole discretion. In particular, Bitpanda reserves the right not to provide a separate wallet in the Bitpanda Systems for certain E-tokens included in an allocation of funds.
6.7 You can exchange the E-Token recorded and displayed in the Index Wallet for currency that is legal tender at any time by creating a corresponding Bitpanda Client Offer. Such a Bitpanda Client Offer must refer to either (i) the total number of E-Tokens displayed and recorded in the Index Wallet or (ii) a proportionate number of E-Tokens displayed and recorded in the Index Wallet corresponding to the ratio of the selected allocation of funds. You confirm and accept that such Client Offer - in total or proportionate - may only be possible above a certain minimum amount. It is not possible to sell individual E-Tokens which are displayed and booked in the Index Wallet.
6.8 You acknowledge and accept that the Bitpanda Index can be terminated or discontinued at any time. If the Bitpanda Index is terminated, Bitpanda or the Cooperation Partner will inform you of any such termination within a reasonable period of time. You can then sell the Tokens displayed and booked in the Index Wallet. If you do not take action, Bitpanda or the Cooperation Partner will credit the equivalent value (pursuant to the prices displayed and offered within the Bitpanda Systems) of the displayed Tokens and held in the Index Wallet to you in a currency that is legal tender within a reasonable period of time (and deduct the respective fees incurred for this). This is done at Bitpanda’s or the Cooperation Partner’s sole discretion. This notice period may also be waived for important reasons.
6.9 The E-Tokens recorded and displayed in the Index Wallet can neither be sent to other Bitpanda or Cooperation Partner clients nor to wallet addresses outside of the Bitpanda Systems. Partial removal of individual E-Tokens is also excluded.
7. Prices, Payment Conditions, Exchange and Transfer Conditions
7.1 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").
7.2 Final Rates contain the following parts, which are shown on the webpage of the Final Offer Click:
7.2.1 in case you want to exchange currency that is legal tender for Token offered on Bitpanda System:
i. offered currency that is legal tender
ii. Token received if offer is accepted by Bitpanda or any of its affiliates
iii. Final Rate, being the sum of items i-ii above
7.2.2 in case you want to exchange Token offered on Bitpanda System for currency that is legal tender:
i. offered Token
ii. Currency that is legal tender received if offer is accepted by Bitpanda
iii. Final Rate, being the sum of items i-ii above
7.2.3 In case you want to use Bitpanda Savings:
i. offered amount in a currency that is legal tender
ii. Token received if offer is accepted by Bitpanda 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
7.3 In general, each Bitpanda Client Offer given within the Cooperation Partners interface must at least have a monetary value (based on the figures used by Bitpanda System or the Cooperation Partner), stated by the respective Final Rate of EUR 1.00. You accept and acknowledge that for certain Token the minimal monetary value may be higher than EUR 1.00 (if this is the case, the minimal monetary value will be shown in Bitpanda or Cooperation Partner Systems before marking a Bitpanda Client Offer).
7.4 By using the Cooperation Services via the Cooperation Partner interface, the payment process is automatically linked to your trading activity (i.e. if you execute a Bitpanda Client offer for buying certain Token within the Cooperation Partner interface, a withdrawal from your account held with Cooperation Partner is automatically triggered and vice versa). Payments in a currency which is legal tender from Bitpanda to your Cooperation Partner account are transferred by the respective payment service provider of the Cooperation Partner (including services of Bitpanda Payments GmbH). In case of transfers from Bitpanda to your Cooperation Partner account, you acknowledge and accept that any such transfer shall be deemed successfully executed, settled and completed (i.e. having debt-discharging effect for Bitpanda) once Bitpanda or any of its affiliates (e.g. Bitpanda Payments) successfully executed the transfer in the corresponding amount of currency that is legal tender to Cooperation Partner according to an agreement between Bitpanda and Cooperation Partner. You acknowledge and accept that you do not have a legal claim against Bitpanda nor any of its affiliates once a transfer is deemed successfully executed by Bitpanda Payments.
7.5 Final Rates and/or any other payments or services have to be paid and/or transferred by you immediately after the Final Offer Click.
7.6 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, any Token or proceeds thereof, remain the property of Bitpanda (Reservation of Title; Eigentumsvorbehalt) and Bitpanda has a right of retention (Zurückbehaltungsrecht) regarding the Tokens of the respective Bitpanda or Cooperation Partner Client. This reservation remains in force regardless of any form of processing or blending of goods, which may take place in any location worldwide.
7.7 You are in delay with your payment/transfer if the respective payment/transfer is not booked on Bitpanda's accounts (including wallets and storages of Bitpanda) at the time when the respective CCOFA (as set forth under item 3.1.3) has been completed by Bitpanda. Bitpanda cannot be in delay because Bitpanda either accepts an offer by completing the respective CCOFA or denies an offer in all other cases of not completing the respective CCOFA.
7.8 In the case you are in delay with your transfer, Bitpanda 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 to administer such delay and enforce Bitpanda's 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 a reasonable time, Bitpanda reserves the right to entrust a debt collection agency with the collection of the claimed debt. In such case Bitpanda 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 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. If you do not settle your debts within a reasonable period of time, Bitpanda or Cooperation Partner may set off due claims against counterclaims of any kind against you as a customer.
7.9 Bitpanda allows only a single match between a Bitpanda Client Account and a payment service provider account. Respectively any account with a payment service provider may be used only by one single Bitpanda Client. The name of the payment service user must match the name of the Bitpanda Client attached to the respective Bitpanda Client Account.
7.10 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 neither Bitpanda nor the Cooperation Partner can match the respective payment with your Bitpanda Client Account with the consequence that Bitpanda or Cooperation Partner has to start a manual tracking process, for which Bitpanda shall charge you a processing fee in addition to any damage claims (if any).
7.11 Bitpanda reserves the right to change, amend and/or disallow accepted payment methods at its own discretion.
7.12 Your wallet-addresses within the Bitpanda system are not final and irrevocable. Therefore, you acknowledge and accept that a wallet and/or wallet-address created by you or assigned to you may be deleted or changed by Bitpanda if you have not used this wallet-address within a period of 6 months since the last use. Therefore, it is recommended to check your wallet-address regularly and especially before making deposits.
8. Right of withdrawal
8.1 You must explicitly give up your 14-day right of withdrawal, which consumers benefit from according to section 11 of the "Fern- und Auswärtsgeschäfte-Gesetz" (the "FAGG"), in order to allow Bitpanda in accordance with section 18 (1) item 11 FAGG to transfer E-Token or M-Token before the right of withdrawal expires. Bitpanda Systems transmit a confirmation of the closed contract to the respective Bitpanda Client according to section 5 para 2 of the FAGG immediately after the CCOFA.
8.2 You explicitly acknowledge and hereby agree that you have no right to withdraw from a Bitpanda Client Offer for A-Token as for such an offer the exception of the withdrawal right according to section 10 item 1 and item 2 of the “Fern-Finanzdienstleistungs-Gesetz“ (the “FernFinG”) applies.
9. Data Protection
9.1 In the course of delivering the negotiated services, Bitpanda is compliant with the GDPR („General Data Protection Regulation“ (EU) 2016/679) as set forth in the Data Protection Terms.
10.1 You, as a Bitpanda Client, using Bitpanda Systems via Cooperation Partner’s interface, understand and accept the following risks in connection with Bitpanda Systems. In particular, but without being limited to these examples, you understand the inherent risks set forth above and hereinafter:
i. Risk of software weaknesses: The underlying software application and software platform, the Bitpanda Systems, Cooperation Partner 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 the 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, inter alia, the complete loss of any cryptographic blockchain-based digital information units, in particular but not limited to token, euro or any value of any cryptographic blockchain-based digital information units.
ii. Regulatory risk: Blockchain technologies allow new forms of interaction. It is possible that certain jurisdictions will apply existing regulations, or introduce new regulations addressing blockchain technology-based applications, which may have a negative influence on the current setup of the systems and which may, inter alia, result in substantial modifications of the any cryptographic blockchain-based digital information units/Bitpanda System technology, including its 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. Bitpanda and any of its affiliates intend to design, modify and/or adapt the Bitpanda System technology in such a way that financial market rules are either not applicable to any cryptographic blockchain-based digital information units and/or the Bitpanda System technology or if financial market rules are applicable, Bitpanda will make its best efforts to always adhere to and to be compliant with any form of applicable regulation. Respectively within the regulatory risk category, changes in the Bitpanda System technology - with respect to such adaptations, amendments and re-designs - may cause the termination or loss of any cryptographic blockchain-based digital information units or any value which any cryptographic blockchain-based digital information units might have.
iii. Risk of abandonment/lack of success: The partnership between Bitpanda and Cooperation Partner is not guaranteed and may be terminated, amended or cancelled anytime. You acknowledge and accept that you do not have a legal claim against Bitpanda and/or Cooperation Partner in case of termination or amendment of the partnership and offering of Cooperation Services. The allocation of any cryptographic blockchain-based digital information units and the development of any cryptographic blockchain-based digital information units technologies might be abandoned for a number of reasons, including lack of interest from industry, community and/or the public, lack of funding, lack of commercial success or prospects (e.g. caused by competing projects). Respectively, even if the Bitpanda System technology is partially or fully developed and launched, it could happen that any cryptographic blockchain-based digital information units do not receive any functionality.
iv. 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 Token, or the theft or loss of private data, impacting the ability to develop, launch or use the Bitpanda System technology. You should be aware that SMS/messages and email services are vulnerable to spoofing and phishing attacks and should review messages purporting to be from Bitpanda or Bitpanda Metals GmbH with caution. 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 Bitpanda Metals GmbH accept any responsibility for lost Token or any other funds due to spoofing, phishing or other equivalent attacks.
v. Risk of blockchain mining attacks: As with any other public blockchain-based systems, the Bitpanda System technology may be susceptible to attacks including but not limited to double-spend attacks, majority mining power attacks, “selfish-mining” attacks, race condition attacks or any other mining or non-mining related attacks. Any successful attacks present a risk to the Bitpanda System technology, expected proper execution and sequencing of cryptographic blockchain-based digital information units transactions and the expected proper execution and sequencing of software computations.
vi. Risk of depreciation in value/extreme volatility: As cryptographic blockchain-based digital information units are widely not regulated the value of cryptographic blockchain-based digital information units is assessed differently. The value of cryptographic blockchain-based digital information units in whatever form and any Token might experience extreme volatility and/or the value of cryptographic blockchain-based digital information units might decline to zero. As additional cost with respect to regulatory or other risks might be triggered – and if said costs are added for the purpose of calculation to the value of cryptographic blockchain-based digital information units (whatever value you might give to the cryptographic blockchain-based digital information units) - cryptographic blockchain-based digital information units might also decline in their value to zero.
vii. General risk: There is no guarantee/warranty whatsoever on Token and/or the success of the Bitpanda System technology, expressed or implied, to the extent permitted by law, and that any Token are created and obtained at the sole risk of the Bitpanda Client on an “as is” and “under development” basis and without, to the extent permitted by law, any guarantees/warranties of any kind, including, but not limited to, warranties of title or implied warranties, merchantability or fitness for a particular purpose;
viii. Market and community risk: You are aware of the risks of soft and hard forks and splitting, including the broad possible changes to Bitpanda System technology which might be imposed by the market or community on Bitpanda/Bitpanda System technology. Market and community risk may also be triggered and accelerated via communities that come together, for example in online forums, to discuss certain investment opportunities and products with the intention of placing jointly-organised buy and sell orders which may lead to strong price fluctuations which carry a high risk of loss.
ix. Tax risk: The tax consequences of the allocation or purchase of Token (in any form) as well as the exchange of Token, the holding of Token, the alienation of Token and/or any other action or transaction related to Token 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, using Bitpanda Pro and/or by receiving, using or holding Token, and to the extent permitted by law, you agree not to hold any associated party (including Bitpanda, Bitpanda's auditors, Bitpanda's contractors, Bitpanda's advisors, Bitpanda's employees or Bitpanda's founders) liable for any tax liability associated with or arising from making an Bitpanda Client Offer, the allocation, use or ownership of Token or any other action or transaction related to Token.
11.1 Investing in Token offered via the Cooperation Services is highly speculative and carries the risk of losing the entire capital invested. Said investment is only suitable for users, who can bear a loss of the entire invested capital.
11.2 Investing in Token offered within the Cooperation Services means investing in something totally new and unpredictable. Such investment is only suitable for users, who want to take maximum risk.
11.3 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.
11.4 Bitpanda does not take any responsibility for the prices of any Token and you trade the Tokens at your behalf and risk.
11.5 Bitpanda does not take any responsibility for cryptographic blockchain-based digital information units, that are or tend to be collateralised, backed or pegged by a currency that is legal tender or any other asset of whatever form (e.g. stablecoins) as all actions in connection to such cryptographic blockchain-based digital information units are in the sole responsibility of its issuer and Bitpanda has no discretion over such actions. You agree and confirm that such cryptographic blockchain-based digital information units are collateralised, backed or pegged solely by the issuer and not by Bitpanda itself. Therefore, you cannot redeem or convert such cryptographic blockchain-based digital information units with Bitpanda.
11.6 You use the offered Bitpanda Systems and Cooperation Services at your own risk.
12.1 Bitpanda and its Cooperation Partner manage Cooperation Services with due care. Nevertheless, systems for the exchange of Token combine various new fields of experimental technology and it is very likely that interruptions, failures and other problems occur. Neither Bitpanda, the Cooperation Partner nor any of their affiliates give any guarantee with respect to finding solutions for any such problems as soon as possible. Bitpanda and Cooperation Partner and any of their affiliates assume no responsibility other than to try to find solutions and therefore assumes no liability whatsoever for any damage caused by interruptions of a Bitpanda System or the Cooperation Services because any such interruptions are immanent in an experimental field of technology.
12.2 You are aware that technology-based systems like Bitpanda Systems and offered the Cooperation Services need maintenance work and development work and that for such work interruptions of the systems (planned and unplanned) are necessary and system immanent.
12.3 Bitpanda shall;
12.3.1 via business clients only be liable for any direct and foreseeable damage in the event of intent to cause or in the event of physical damages of persons negligently caused by Bitpanda.
12.3.2 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.
12.3.3 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.
12.3.4 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’s and any of its affiliates’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).
12.3.5 in particular not be liable for any damages caused by the Cooperation Partner or are in the sphere of Cooperation Partners technology (e.g. Cooperation Partner interface).
12.3.6 not be liable for and cannot guarantee that the security certificates displayed on any Bitpanda System are completely secure.
12.3.7 not be liable for any loss of customer data (e.g. due to hacker attacks) which are beyond Bitpanda's or Cooperation Partners sphere. A Bitpanda Client shall be informed immediately about the loss of data.
12.3.8 assume no liability for stored Token in any hot and/or cold wallet for a Bitpanda Client; any user's login data, Bitpanda Client login data, 2FA data, or other user data.
12.4 Bitpanda undertakes to care for the E-Token stored by the Bitpanda Client to the extent to which it is reasonably technically manageable in Bitpanda Systems and endeavours to store the majority of these "cold" - meaning offline.
12.5 Bitpanda and/or the Cooperation Partner have the right to disclose any data to any competent authority if the data is requested to be disclosed by said authority in order to track or investigate any relevant cases under the applicable Criminal Code. Bitpanda and its Cooperation Partner reserve the right to cooperate with such authorities to the maximum extent possible.
12.6 You accept and confirm with each transaction you conduct via the Cooperation Services that you accept and confirm these GTC in the current form.
12.7 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, where 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 regard 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.
12.8 Changes to these GTC, including this clause, may be made by Bitpanda at any time and will apply to you if (i) you expressly agree to the new Terms or (ii) you remain silent for 30 days from the date we publish the changes. In this case, however, we will inform you separately and in advance of the consequences for you that if you remain silent for 30 days, we will consider this as agreement to the changes of this GTC.
12.9 The GTC exclusively govern the relationship between you and Bitpanda by using the Cooperation Services and supersede any prior statements or agreements. Any terms and conditions (GTC) of you are excluded from being applicable on the relationship between you and Bitpanda.
12.10 The failure of Bitpanda 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's 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.
12.11 Bitpanda and you agree on the 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.
12.12 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.
12.13 Any and all disputes or divergences or claims shall be exclusively dealt with the court having pertinent competence for 1010 Vienna.
Bitpanda Fork Policy
- A fork is a situation in which a blockchain splits into two separate chains temporarily or permanently ("Fork"). Forks are a natural occurrence during mining, where two chains following the same consensus rules temporarily have the same accumulated Proof of Fork and are both considered valid. They can also occur as a consequence of the use of two distinct sets of rules trying to govern the same blockchain. Forks have been used in cryptocurrencies in order to add new features to a blockchain or to reverse the effects of hacking or catastrophic bugs on a blockchain as was the case with the fork between Ethereum and Ethereum Classic. Notably, Forks have been widely discussed in the context of the bitcoin scalability problem.
- Bitpanda does not automatically support Forks of any cryptographic blockchain-based digital information units.
- Bitpanda assesses each case, and each Fork on a case-by-case basis and Bitpanda may at its sole discretion decide whether to support a Fork or not and whether to communicate that to you or not.
- If Bitpanda decides not to support a Fork you shall not have a legal claim against Bitpanda whatsoever.
- You must monitor the market by yourself to stay informed about Forks. Bitpanda has no duty to inform you on any Forks.
- Bitpanda may decide in its sole discretion to suspend/temporarily shut down any exchange, trading or any transaction with respect to E-Token which are part of a Fork or influenced by a Fork to a major extent. This applies to Forks which are supported by Bitpanda and also to Forks which are not supported by Bitpanda.
- If Bitpanda decides - at Bitpanda's sole discretion - to try to support a Fork, Bitpanda shall decide which chain is the original blockchain in the fork scenario. Consequently, Bitpanda shall inform you of such decisions and will endeavour to integrate the new cryptographic blockchain-based digital information units resulting from the Fork into Bitpanda Systems. However, Bitpanda gives no guarantee that such integration takes place and shall inform you at its sole discretion on when and how and at which distribution rate such new cryptographic blockchain-based digital information units resulting from the Fork can be used in Bitpanda Systems. Respectively, Bitpanda holds any resulting new cryptographic blockchain-based digital information units balances for and on behalf of you from the time of the split till the time of distribution to you in cold storage (meaning offline). You are aware and accept that there might be situations where Bitpanda may decide in a commercially-reasonable way not to integrate such new cryptographic blockchain-based digital information units in Bitpanda Systems and that in such case you have no right to claim damages or compensation of any kind from Bitpanda. You are aware that Bitpanda will always only try to integrate new cryptographic blockchain-based digital information units but in no case gives any guarantee that such integration can be done or is fixed for a certain point in time.