Managed Xcalibra Website – Terms of Use January 12, 2024
These Terms of Use apply only to Clients of Xcalibra AG, Switzerland and the Managed.Xcalibra.com website.
These Xcalibra Terms of Use (“Terms”) constitute a contract between you as a Client (“Client” or “you”) and Xcalibra AG, a company incorporated in Switzerland (“Xcalibra”).
By using Xcalibra’s website https://managed.xcalibra.com/ (“Website”) you agree that you have read, understood, and accepted all of the terms and conditions detailed below. If you do not agree to all of these terms, do not use this Website or any information, links or content contained therein. Your access to and use of this Website constitutes your acceptance of and agreement to abide by each of the terms set forth below, including the Xcalibra Privacy Policy which is hereby incorporated in these Terms by reference.
These Terms may be updated and amended by Xcalibra unilaterally at its sole discretion. You are advised to visit the Terms on the Xcalibra Website from time to time. Your continued use of the Xcalibra Website or platform (“Platform”) will confirm your acceptance of these Terms as modified, changed, supplemented or updated by Xcalibra. If you do not agree to the amendments, please notify Xcalibra at [email protected] and Xcalibra will arrange the closing of your account.
Xcalibra Account and Access to Xcalibra Services
To be eligible to access and use the Xcalibra Platform and its services (“Services”), you must be 18 years or older, have proficient knowledge and understanding of the risks involved in interacting with a digital assets platform.
You can access the following Services: Access to the Xcalibra Platform and content as well as deposit and exchange cryptocurrencies and tokens (“Digital Assets”) listed on the Platform. Xcalibra from time to time may expand its service offering, and new services may become available to you.
In order to use any of the Services, you must create your account profile. Xcalibra may, in its sole discretion, reject your application for a Xcalibra account. Xcalibra allows to maintain one active account per person.
In order to use certain features of the Services, you may be required to provide Xcalibra or a third party mandated by Xcalibra with certain personal information, including, but not limited to, your full name, address, telephone number, e-mail address, date of birth, taxpayer identification number, government identification number, copy of your passport or ID card, source of income as well as provide documentary evidence proving your identity, address or source of income. You may be required to verify your identity through a live identity verification process where photo of your face is matched in real time with a photo on the original of your identification document.
In submitting the above listed or any other personal information as may be required, you confirm that the information is accurate, authentic and up-to-date, and you agree to notify Xcalibra if any information changes. You hereby authorise Xcalibra to, directly or through third parties, make any inquiries Xcalibra considers necessary to verify your identity and/or protect against fraud, including to query identity information contained in public or private data bases, and to take action Xcalibra reasonably deems necessary based on the results of such inquiries and reports.
Relation to Third-Party Content
Xcalibra may display third-party content on the Website, e.g. advertisements, links, promotions, logos and other materials for your convenience only. Xcalibra makes no representations or warranties of any kind regarding such third-party content, including, without limitation, the accuracy, validity, legality, appropriateness, copyright compliance, or decency of such content.
Your use of or interactions with any third-party content, and any third party that provides the content, are solely between you and such third parties and Xcalibra is not responsible or liable in any manner for such use or interactions. Xcalibra is not responsible for any of the content on third-party websites linked to Xcalibra’s Website nor can it be assumed that Xcalibra has reviewed or approved of such websites or their content, nor does Xcalibra warrant that the links to these websites work or are up to date.
Participation in Digital Assets Sales and Related Risks
You understand and accept that buying Digital Assets carries significant financial, regulatory and/or reputational risks including the complete loss of values of the tokens (if any). You shall have no recourse to any refunds from Xcalibra in any event whatsoever.
You understand and accept the risks in connection with Digital Assets sales. In particular but not exhaustively, you understand the inherent risks listed hereinafter:
Risk of Software Weaknesses
You understand and accept that the underlying software application, any software used for the Digital Asset sale procedure including the relevant web interface, the smart contract system and other involved software and technology and technical concepts and theories are still at an early development stage and unproven. Therefore, there is no
warranty that the process for receiving, use and ownership of tokens and/or any benefits arising from this ownership will be uninterrupted or error-free and which is why 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 the tokens and/or futures profits (if any).
Regulatory Risk
You understand and accept that the blockchain technology allows new forms of interaction. There is a possibility that certain jurisdictions will apply existing regulations, or introduce new regulations addressing blockchain technology-based applications which may be contrary to the current setup of the Xcalibra project which may result e.g. in substantial modifications of the Xcalibra project or any profits (if any) for you.
Third Party Risk
Xcalibra may use third parties or third parties’ software. Xcalibra has no visibility into or possibility to control the software or mechanism used by such third parties and cannot verify or guarantee the proper functionality of the third-party software or operations.
Risk of Loss and Theft
You understand and accept that the Xcalibra Platform, the underlying software application and software platform, other involved software, other technology components and/or platforms may be exposed to attacks by hackers or other individuals that could result in theft or loss of Digital Assets.
Risk of Protocol Attacks
You understand and accept that as with other Digital Assets the blockchain used for the smart contract system is susceptible to mining attacks, including but not limited to double-spend attacks, majority mining power attacks, “selfish-mining” attacks, and race condition attacks. Any successful attack presents a risk to the smart contract system, the expected proper execution and sequencing of token transactions and the expected proper execution of the sequencing of contract computations.
Risk of Depreciation / Lack of Liquidity
You understand that with regard to the Digital Assets no market liquidity may be guaranteed and that the value (if any) of the Digital Assets over time may experience extreme volatility or depreciate resulting in loss that will be borne exclusively by you.
You acknowledge and agree that you shall access and use Xcalibra Services at your own risk. The risk of loss in acquiring and trading Digital Assets can be substantial, Xcalibra cannot be held responsible for these losses. You should, therefore, carefully consider whether such acquisition or trading is suitable for you in light of your individual circumstances and financial resources.
You acknowledge that cryptocurrency, including Bitcoin, is an unregulated digital asset which is not issued or guaranteed by any central bank or government. Cryptocurrency holdings are not covered by any deposit guarantee scheme. You are responsible for the protection and security of your Xcalibra account, as Digital Assets payments are not reversible.
By participating in a Digital Asset sale with your Xcalibra account you confirm that you have read and understood the terms and conditions of the Digital Asset sale, including any document presented by Xcalibra, and that you expressly accept all terms, conditions, obligations, representations and warranties described in these terms and agree to be bound by them.
You also declare and certify carrying out the research or taking the relevant advice from specialised lawyers or other professionals to ensure that no legislation or regulation applicable to your situation and your place of residence, or no position or recommendation from a competent national authority prohibits you or limits you in the purchase and the possession of tokens, and more widely in the possession of cryptocurrencies.
It is your sole responsibility to determine whether, and to what extent, any taxes apply to any Digital Asset purchase transactions that you access through the Xcalibra Platform, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. Your transaction history will be made available through your Xcalibra account.
Restrictions Applicable to the Use of Xcalibra Services
By using your Xcalibra account you agree and represent that you will use the account for yourself, and not on behalf of any third party. You may not sell, lease, furnish or otherwise permit or provide access to your Xcalibra account to any other person.
Xcalibra does not represent that the Xcalibra Platform and/or Website and related Services, will be available without interruption. Although Xcalibra will strive to provide you with continuous operations, Xcalibra does not guarantee continuous access or that there will be no delays, failures, errors, omissions or loss of transmitted information. In the event of a significant system outage, Xcalibra reserves the right to suspend Xcalibra activity for an indefinite period.
In connection with your use of the Xcalibra Services you agree and represent that you will not engage in any prohibited use activities listed below. Xcalibra reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request. Xcalibra reserves the right to cancel and/or suspend your
Xcalibra account and/or block transactions immediately and without notice if Xcalibra determines, in its sole discretion, that your account is associated with a prohibited use.
Following activities shall be understood as prohibited use, and accordingly you are not allowed to:
use the Platform or any Services in order to disguise the proceeds of, or to further, any breach of applicable laws or regulations, or to deal in any illegally obtained cryptocurrency or fiat currency funds, or proceeds;
use any Xcalibra Services, with anything other than cryptocurrency and fiat currency funds that have been legally obtained by you and that belong to you;
use the Platform or any Services to interfere with or subvert the rights or obligations of Xcalibra or the rights or obligations of any other Xcalibra Client or any other third party;
take advantage of any technical glitch, malfunction, failure, delay, default, or security breach;
use the Platform or any Services to engage in conduct that is detrimental to Xcalibra or to any other Client or any other third party;
falsify any account registration details provided to Xcalibra;
falsify or materially omit any information or provide misleading information, including information about your actual location or residence, requested by Xcalibra at registration;
access any content, area or functionality of this Website that you are prohibited or restricted from accessing or attempt to bypass or circumvent measures employed to prevent or limit your access to any content, area or functionality of this Website;
reverse-engineer, decompile, or disassemble Platform or any software run by Xcalibra;
attempt to harm Xcalibra or third parties through your access to the Platform or any Services, or,
attempt to use the Xcalibra Platform and its financial integrations to launder money
violate these Terms.
Xcalibra reserves the right to refuse registration to, or to bar transactions from or to, or terminate any relationship with any Client for any reason (or for no reason) at any time. Without limiting the generality of the foregoing, this includes, but is not limited to, anyone from or in jurisdictions that do not meet international AML/CTF standards as set out by the FATF; anyone that is a politically exposed person within the meaning of the applicable law; or, anyone that fails to meet any customer due diligence standards, requests, or requirements of Xcalibra. In lieu of refusing registration, Xcalibra may perform enhanced customer due diligence procedures. At all times, you may be subject to enhanced customer due diligence procedures in your use of the Platform and any Xcalibra Service.
Xcalibra may: (1) suspend, restrict, or terminate your access to any or all of the Xcalibra Services and/or (2) deactivate or terminate your Xcalibra account if:
Xcalibra is so required by court or competent government authority or regulator;
Xcalibra reasonably suspects you of using your Xcalibra account in breach of clause 4.3 (prohibited use clause);
Use of your Xcalibra account is subject to any pending litigation, investigation, or government proceeding and/or Xcalibra perceives a heightened risk of legal or regulatory non-compliance associated with your account activity;
Xcalibras’ service partners (e.g. payment service provider) are unable to support your use of Services;
You take any action that Xcalibra deems as circumventing controls of Xcalibra, including, but not limited to, opening multiple Xcalibra accounts.
You are responsible for maintaining adequate security and control of all passwords, authentication and access codes, any keys, certificates, user IDs that have been provided to you or that are generated in connection with your use of the Services that you use to access the Xcalibra Services. Any loss or compromise of the foregoing information and/or your personal information may result in unauthorised access to your Xcalibra account by third parties. You are responsible for keeping your email address and telephone number up-to-date in your account information in order to receive any notices or alerts that we may send you. Xcalibra assumes no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of Xcalibra and/ or failure to follow or act on any notices or alerts that we may send to you. In the event you believe your Xcalibra account information has been compromised, contact Xcalibra support immediately at [email protected].
Customer Contact and Dispute Resolution
If you have any feedback, questions, or complaints, contact Xcalibra by e-mail at [email protected]. When you contact Xcalibra please provide your full name, address, and any other information needed to identify you, and the specific issue on which you have feedback, questions, or complaints.
In the event of a complaint, in addition, please set out the cause of your complaint, how you would like Xcalibra to resolve the complaint and any other information you believe to be relevant.
In case the submitted complaint lacks information needed for the investigation, Xcalibra will ask you to eliminate the shortcomings of the complaint by specifying the substance of the complaint or providing additional documents or data needed for the complaint’s investigation. In such case Xcalibra sets a reasonable time limit, which cannot be shorter than 7 days to eliminate the shortcomings of the complaint.
Any offer made during complaint review will only become binding on Xcalibra if you accept the offer by following the instructions provided by Xcalibra within the stated timeframe. Any offer under this clause will not constitute any admission by Xcalibra of any wrongdoing or liability regarding the subject matter of the complaint. Any acceptance of an offer by you will constitute an acceptance that the complaint is resolved and an undertaking that you will not file a claim in any competent court against Xcalibra regarding the subject matter of the complaint.
You agree to use the complaints procedure detailed in this chapter before filing any claim in a competent court. Failure to comply with this provision may be used as evidence of your unwillingness to settle the issue.
Final Provisions
Xcalibra shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses, spyware, Trojan horses, worms or other malware that may affect your computer or other equipment, or any phishing, spoofing or other attack. Xcalibra advises the regular use of a reputable and readily available virus scanning and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Xcalibra. Always log into your Xcalibra account through the Xcalibra Website to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
You agree to indemnify and hold Xcalibra, its affiliates and service providers, and each of its or their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys’ fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of this contract or your violation of any law, rule or regulation, or the rights of any third party.
In no event shall Xcalibra, its affiliates and service providers, or any of their respective representatives, be liable for any lost profits or any direct damages, whether based in contract, tort, negligence, strict liability, or otherwise, arising out of or in connection with authorised or unauthorised use of the Xcalibra Platform or the Xcalibra Services, or these Terms. In particular, any liability for indirect and consequential damages, for loss of profit, for consequential damages or for auxiliary persons is excluded.
The Xcalibra Services are provided on an “as is” and “as available” basis without any representation or warranty, whether express, implied or statutory. To the maximum extent permitted by applicable law, Xcalibra specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and/or non-
infringement. Xcalibra does not make any representations or warranties that access to the Platform, any part of the Xcalibra Services, or any of the materials contained therein, will be continuous, uninterrupted, timely, or error-free.
These Terms comprise the entire understanding and agreement between you and Xcalibra as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of the Terms), and every nature between and among you and Xcalibra.
Xcalibra may amend or modify these Terms by posting on the Xcalibra Website or emailing to you the revised Terms, and the revised Terms shall be effective at such time. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your account. You agree that Xcalibra shall not be liable to you or any third party for any modification or termination of the Xcalibra Services, or suspension or termination of your access to the Xcalibra Services, except to the extent otherwise expressly set forth herein. If the revised Terms include a material change, we will endeavour to provide you advanced notice via our Website and/or email before the material change becomes effective.
You may not assign any rights and/or licenses granted under these Terms. We reserve the right to assign our rights without restriction, including without limitation to any Xcalibra affiliates or subsidiaries, or to any successor in interest of any business associated with the Xcalibra Services. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
If any provision of these Terms shall be determined to be invalid or unenforceable under any rule, law or regulation or any governmental agency, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of these Terms shall not be affected.
In the event that Xcalibra, or part of the business, is acquired by or merged with a third party entity, Xcalibra reserves the right, in any of these circumstances, to transfer or assign the information Xcalibra has collected from you as part of such merger, acquisition, sale, or other change of control.
These Terms and any questions relating thereto shall be governed by the laws of Switzerland, to the exclusion of any rules of conflict resulting from private international law. Any dispute relating to this policy must exclusively be brought before the courts of Zug.