General Terms & Conditions (DGLD)
General Terms & Conditions
Of the relationship between holders of DGLD and GTSA as well as the relationships among holders of DGLD
of August 2022
Gold Token SA, (“GTSA”)
c/o MKS (Switzerland) SA, Promenade de Saint-Antoine 10, 1204 Genève, Switzerland
“Asset ID” is the serial number and weight of bar of LBMA Gold embossed in the LBMA Gold.
“Authorized Participant” shall mean a legal entity accredited with GTSA by an Authorized Participant framework agreement providing LBMA Gold and requesting GTSA to tokenize such LBMA gold.
“Blockchain Address” is an address to which DGLD can be allocated.
“CC” shall mean the Swiss Civil Code (ZGB, SR 210).
“CO” shall mean the Swiss Code of Obligations (OR, SR 220).
“Custodian” shall mean PAMP SA or another vaulting service provider engaged by GTSA to vault Token Gold.
“Force Majeure” shall mean any cause beyond the reasonable control of the Party which delays, hinders or prevents (whether partially or wholly) the Party from complying with its obligations towards each other including, but not limited to, any act of God or the elements, war, hostilities, mobilisation, confiscation, terrorism, riots, acts of the public enemy, civil commotion, fires, strikes, labour disputes, accidents, radioactive contamination as well as chemical, biological, bio-chemical and electromagnetic weapons, cyber-attacks, any act in consequence of compliance with any order of any government or governmental or executive authority or any event affecting the supply of energy and raw materials that adversely affects the Party’s ability to make deliveries on time or in full.
“DGLD” shall mean tokens registered and allocated to Blockchain Addresses on the underlying blockchain which are linked to the Asset ID of a physical gold bar and which can be accessed and controlled with a Private Key.
“GT&Cs” shall mean the General Terms and Conditions defined in this document, as amended from time to time.
“LBMA Gold” shall mean LBMA Good Delivery bars of approximately 400 troy ounces (http://www.lbma.org.uk/good-delivery-list-about).
“Platform” shall mean a DLT-based platform operated by GTSA enabling the issuance, holding, transfer and Redemption of DGLD.
“Private Key” shall mean a string of data that allows a Tokenholders to access the DGLD allocated to a particular Public Key.
“Public Key” is a cryptographic code from which Blockchain Addresses can be deducted.
“Receipt of Deposit” shall mean the receipt issued by a Custodian confirming the vaulting of LBMA Gold on behalf of GTSA.
“Redemption Fee” shall have the meaning as defined in Section 12.2 hereafter.
“Re-Issuance Fee” shall have the meaning as defined in Section 12.3 hereafter.
“Services” shall mean the Services provided by GTSA as part of these GT&Cs.
“Software” shall mean any and all Software relating to the Platform, including the underlying source code.
“Token Gold” shall mean a specific bar of LBMA Gold unambiguously linked to DGLD.
“Tokenholder” shall mean the legal entity or individual who can access and dispose of DGLD via his Private Key.
1. In these GT&Cs,
- words denoting the singular shall include the plural and vice versa, and words denoting any gender shall include all genders, in each case, unless the context requires otherwise. the words “include” and “including” shall be deemed to be qualified by reference to “without limitation”.
- any reference in these GT&Cs to a “Section”, “Exhibit” or “Preamble” shall, subject to any contrary indication, be construed as a reference to a section, exhibit or the preamble of these GT&Cs.
3. Scope and applicability of the GT&Cs
2. GTSA is Swiss corporation limited by shares with its registered seat in Geneva, Switzerland. GTSA is a financial intermediary subject to Swiss Anti-Money Laundering Regulations and a member of the Financial Services Standards Association (Verein zur Qualitätssicherung von Finanzdienstleistungen, VQF). GTSA offers custody and tokenization Services for LBMA gold. As such GTSA issues DGLD to selected Authorized Participants.
3. These GT&Cs govern the general rights and obligations of GTSA and Tokenholders in connection with the holding and transfer of DGLD, the Redemption of DGLD against physical LBMA Gold, the co-ownership in the physical gold by Tokenholders as well as the administration of that co-ownership by GTSA.
4. Not regulated by these GT&Cs is the process of the creation of DGLD. The primary issuance of DGLD is done exclusively to Authorized Participants and the respective process is exclusively governed by separate Authorized Participant Agreements.
5. Tokenholders agree to these GT&Cs by holding DGLD and/or by accessing the Platform.
4. Connecting LBMA Gold to DGLD
6. As part of the issuance process, GTSA issues DGLD and unambiguously links each DGLD to LBMA Gold which is vaulted with a Custodian.
7. Newly issued DGLD will exclusively be allocated to a Blockchain Address of the Authorized Participant who provided the respective LBMA Gold. The first Tokenholder of newly issued DGLD is always an Authorized Participant.
8. The amount of LBMA Gold linked to a DGLD is fixed at 1 DGLD = 1 fine troy ounce of LBMA certified gold.
9. DGLD will be divisible into fractions of 8 decimal points (0.00000001 - 100 millionth of a token).
5. Vaulting of Token Gold
10. Token Gold is vaulted with a Custodian in the name of GTSA on behalf of the Tokenholder. The receipt of deposit is not a document of title to goods. It contains, among other information, the place and date of issuance, the name, address and signature of the Custodian, the Asset ID of the LBMA Gold and the exact weight of the LBMA gold in fine ounces.
11. GTSA undertakes to pay any agreed deposit fees and charges to the Custodian in time.
12. Should a Custodian terminate a deposit agreement for Token Gold, GTSA undertakes to have the respective Token Gold transferred to another Custodian.
13. It remains within the full discretion of GTSA to at any time for any reason transfer Token Gold from one Custodian to another. The costs of such transfer are to be borne by GTSA (freight, security, insurance, customs, etc.).
6. Transfer of DGLD
14. DGLD can be transferred by Tokenholders using their Private Key.
15. The transfer of DGLD leads to a transfer of ownership in Token Gold as further set forth in Section 7.3.
7. Co-ownership of Tokenholders in Token Gold
16. All Tokenholders of DGLD, which are linked to Token Gold having the same Asset
17. ID, are co-owners of the gold bar with the respective Asset ID embossed (art. 646 al. 1 CC). The share of ownership of one Tokenholder in such specific bar of Token Gold depends on the amount of DGLD the respective Tokenholder holds linked to the respective Asset ID and the weight of the respective gold bar.
18. These GT&Cs constitute the agreed rules on the use and administration of the co-ownership in the sense of Art. 647 al. 1 CC. In case of inconsistencies between these GT&Cs and the legal framework of art. 646 to art. 654 CC, the GT&Cs shall prevail unless a legal provision shall be mandatorily applicable.
19. The Tokenholders agree and confirm that they neither have the intention to establish, nor to issue, certificated, uncertificated or ledger-based securities on Token Gold. Neither a Receipt of Deposit, nor a DGLD, nor any registration of identity information on Tokenholders by GTSA, nor these GT&Cs shall be qualified as a certificated, uncertificated or ledger-based security in Token Gold.
7.2 Rules and Regulations of Co-ownership
20. GTSA is the administrator of the co-ownership. Tokenholders agree and confirm by accepting these GT&Cs that GTSA is entitled to implement and execute any and all administrative measures, be it of ordinary, major, necessary or of useful nature, which GTSA deems adequate to maintain, improve or extend the vaulting of Token Gold by Custodians, the tokenization of Token Gold and/or the administration of co-ownership and of Tokenholders. The rights of GTSA as administrator include, but are not limited to:
- Enter into Agreements with Custodians within the preconditions defined in Section 11.2;
- Move Token Gold from one vault of a Custodian to another or from one Custodian to another;
- Enter into any sort of agreement necessary to maintain the safe storage and vaulting of Token Gold;
- Re-link DGLD or a fraction thereof to a different Asset ID as GTSA deems fit and necessary. DGLD will at any time be unambiguously linked to a specific Asset ID of Token Gold;
- Establish and manage a digital register on the identities of Tokenholders, DGLD held by them and Token Gold owned by them;
- Collect and provide information on Tokenholder’s identity ownership in gold bars to the Custodian for KYC/AML prerequisites where necessary;
- Conduct PEP checks, screenings against sanction lists and/or conduct negative news checks and/or request any additional or updated information from a Tokenholder.
- Communicate with self-regulation authorities (AML) and other authorities such as FINMA as and to the extent necessary.
21. Tokenholders hereby waive any rights to personally attend to any sort of administration of the Token Gold, the tokenization of Token Gold and the administration of co-ownership and of Tokenholders.
22. Tokenholders waive their rights to dispose of, alienate or encumber or other wise use their right of co-ownership in Token Gold. This waiver does not include any right to dispose of or alienate a DGLD and/or to encumber, pledge or use a DGLD as security or collateral as far as this is legally possible according to the applicable laws.
23. Costs and expenses of the administration of the co-ownership, of the Token Gold and of the Tokenholders are borne by GTSA.
24. Tokenholders agree to waive their right to request dissolution of co-ownership with respect to a specific piece of Token Gold. The right to redeem DGLD against physical gold according to Section 10 hereafter is reserved.
7.3 Transfer of (Co-)Ownership in Token Gold
25. Tokenholders agree that ownership or co-ownership in Token Gold can exclusively be transferred by transmission of DGLD from one Blockchain Address to another. For that purpose, Tokenholders agree that any transfer of a DGLD from the Blockchain Address of one Tokenholder to the Blockchain Address of another Tokenholder is a possessive statement in the sense of art. 924 al. 1 CC. Subject to the transfer of ownership by way of legal succession, Tokenholders waive their potential right to transfer ownership in Token Gold by any other possible mean or legal instrument including the factual transfer of control over a Blockchain Address by a Tokenholder to a third party.
8. Freeze of Blockchain Addresses
25. GTSA may freeze Blockchain Adresses in order to comply with regulatory requirements (e.g. sanctions, AML regulations etc.) or with legally binding decisions or orders of state authorities (“Freeze”). If a Blockchain Address is frozen, any transactions to and from a such Blockchain Address will fail.
27. Tokenholders understand and accept that they have no right to claim any damages resulting out of or in connection with such a Freeze.
9. Loss of DGLD
28. If a Tokenholder loses its Private Key and thereby loses control over his DGLD he will not be able to transfer or redeem his DGLD.
29. GTSA may at its own and sole discretion implement a process in which DGLDs are burned, re-issued to a new address and re-linked to the respective gold bars (or fractions thereof).
30. Should GTSA implement such a process, the burning of existing DGLD and issuance and allocation of new DGLD as well as the re-linking of gold bars (or fractions thereof) will be subject inte alia to the following conditions:
- The person requesting the re-linking can identify himself as the former owner of the DGLD or the rightful legal successor;
- The person requesting the re-linking has created a new Blockchain Address to which the new DGLD can be allocated.
- The Re-Issuance Fee as described in Section 12.3 has been paid to an account indicated by GTSA.
31. For the avoidance of any doubt, it is in GTSA’s sole discretion to burn, issue and re-link new DGLD based on a free assessment of the evidence provided by such person and GTSA shall not become liable for any wrongful acceptance of such person.
10. Redemption of DGLD
32. Tokenholders agree that only a Tokenholder which holds DGLD representing one full specific entity of Token Gold has the right to request the delivery of the Token Gold linked to these DGLDs (“Redemption”).
33. The Redemption process is defined by GTSA and may be amended by GTSA unilaterally. The Redemption process may be summarised as follows:
- A Tokenholder emails [email protected] requesting to redeem its DGLD for gold.
- GTSA sends to the Tokenholder the latest list with the gold bars available for delivery which the Tokenholder can redeem from, informs the Tokenholder on the Redemption Fee and provides the Tokenholder a redemption application form.
- Tokenholder sends GTSA the completed Redemption application form including supporting documents and information, including in particular any information required by GTSA to perform an AML/KYC check as well as information regarding the place of delivery.
- GTSA sends an acknowledgement via email to the Tokenholder, stating that the Redemption application is pending.
- GTSA performs an AML/KYC Check. If the AML/KYC check is successfully completed, GTSA sends an acknowledgement via email to the Tokenholder of a valid Redemption application request.
- Tokenholder transfers the DGLD needed for Redemption (including the Redemption Fee) to a designated address (“Redemption Address”). If sufficient DGLD have been transferred to the Redemption address and the Blockchain Address(es) from which the DGLD have been sent have been screened successfully, GTSA burns the DGLD in accordance with the redemption request.
- GTSA confirms via email the (former) Tokenholder of the destruction of DGLD and provides the (former) Tokenholder information on the dispatch of the (former) Token Gold.
34. Upon completion of the Redemption process the (former) Token Gold is delivered to the (former) Tokenholder to the place of delivery indicated by him. Thereby, delivery will only be made to the (former) Tokenholder or to a vault in the name of the (former) Tokenholder in a non-sanctioned country. Any delivery to a third party other than the (former) Tokenholder is excluded.
35. Tokenholders understand and agree that the Redemption of DGLD against delivery of Token Gold is subject to a Tokenholder successfully completing a full AML/KYC check according to the GTSA AML Guidelines (including, in particular, PEP and sanction checks as well as chain analysis). For the avoidance of any doubt, the passing of the AML/KYC check remains in the full discretion of GTSA. GTSA is entitled to use respective services of specialized third-party service providers. In case an AML/KYC check may not be successfully completed, GTSA informs the Tokenholder via email accordingly. The Redemption process is immediately stopped.
36. The Incoterms 2010 EXW are applicable and the (former) Tokenholder bears the freight of the transport from the vault of the Custodian to the (former) Tokenholder, customs and the insurance.
11. Representations and Warranties
37. Tokenholders represent and warrant
- that the laws applicable to them due to their country of residency and/or citizenship do not prohibit them from using the Services in accordance with these GT&Cs and they acknowledge that GTSA is not liable for their compliance and failure to comply with such laws;
- that they will not be using any Services for any illegal activity, including, without limitation, money laundering, fraud, blackmail, extortion, ransoming data, financing of terrorism or any other violent activities or prohibited market practices and that they are not listed on any sanction list in any jurisdiction;
- that they are of the legal age of majority in their jurisdiction or have obtained the necessary approval of the respective person or authority as is required to access the Platform and use the Services and enter into corresponding arrangements, if any;
- to use and access the Services only in their own name and if they are acting on behalf of a legal entity that they are authorized to use the Services on behalf of this legal entity; and
- that they are fully able and competent to agree to these GT&Cs and the conditions, obligations, affirmations, representations and warranties set forth herein and to abide by and comply with these GT&Cs.
38. GTSA represents and warrants that
- Token Gold consists exclusively of LBMA Gold;
- DGLD are only issued and linked to LBMA Gold once GTSA has received a Receipt of Deposit for the respective LBMA Gold from the Custodian;
- it will only enter into deposit agreements with Custodians which contain the following parameters:
- Token Gold is held in a deposit vault of the Custodian allocated to GTSA and shall remain segregated from any other deposits from third parties and the Custodians own inventories;
- GTSA shall at all times have the right to audit and inspect the storage of any Token Gold; and that
- Title to and ownership in Token Gold shall at all times remain with the Tokenholder.
12. Remuneration of GTSA
39. GTSA is entitled to a Creation Fee, a Redemption Fee and a Re-Issuance Fee (in case a re-issuance process is implemented). Any fees to which GTSA is entitled are understood to include Swiss VAT where applicable.
12.1 Creation Fee
40. The Creation Fee is a percentage fee, depending on the amount of DGLD created, as published by GTSA on its website. The Redemption Fee will be deducted from the newly created DGLD and allocated to GTSA before transferring the remaining newly created DGLD to the Authorized Participant.
12.2 Redemption Fee
41. The Redemption Fee is a percentage, depending on the amount of DGLD redeemed, as published by GTSA on its website. The Redemption Fee will be added to the amount of DGLD required to redeem DGLD against Token Gold.
12.3 Re-Issuance Fee
42. Should GTSA implement a re-issuance process a Re-Issuance Fee as published by GTSA on its Website will be charged to Tokenholder for every re-issuance.
43. Transfers of DGLD will require gas. The gas must be transferred by the Tokenholder and the Tokenholder is not entitled to any reimbursement from GTSA.
13 Wallet and Private Key
44. DGLD can only be accessed with a Tokenholder’s Private Key.
45. Tokenholder understands and accepts, that only certain wallet(s) are technically compatible to hold DGLD. The failure to ensure this may result in the Tokenholder failing to gain access to his/her DGLD.
46. Tokenholders are required to maintain the security of their wallet by protecting their Private Key from unauthorized access or use and undertake to promptly notify GTSA if they discover or suspect any unauthorized access or use of their wallet or any security breaches related thereto. Tokenholders are responsible for all activities that occur under their wallet and accept all risks of any authorized or unauthorized access.
47. The Tokenholder understands and accepts the risks connected to DGLD. In particular, but not exhaustively, the TOKENHOLDER UNDERSTANDS THE INHERENT RISKS LISTED HEREINAFTER AND EXPRESSLY ACKNOWLEDGES AND ASSUMES THESE RISKS.
14.1 Risk of Software Weaknesses
48. The Tokenholder understands and acknowledges that there is no warranty that the process for receiving, using, and holding DGLD will be uninterrupted or error-free and that there is an inherent risk that the underlying blockchain, the smart contracts thereon, as well as any related technologies or concepts contain weaknesses, vulnerabilities or bugs causing, inter alia, the complete loss of DGLD.
14.2 Regulatory Risk
49. GTSA has obtained a ruling from the Swiss Financial Supervisory Authority FINMA dated February 22, 2019 (“Ruling”). In the Ruling, FINMA confirmed that DGLDs qualify as Payment Tokens in the sense of the FINMA Guidelines on initial coin offerings published February 16, 2018. FINMA further confirmed that DGLDs do not qualify as securities under Swiss law. The Tokenholder understands and accepts 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, in a way which may be contrary to the current setup and which may, inter alia, result in substantial modifications of the Software, including the termination of the Project and the loss of the DGLD.
50. The Tokenholder understands and accepts that even if DGLD do not create or confer any contractual or other obligations against any party (including GTSA, the project team members or other developers, auditors, contractors or founders associated with GTSA and/or the Software), certain regulators may nevertheless qualify DGLD as securities or other financial instruments under their applicable law. It remains in the Tokenholder’s responsibility to comply with any laws and regulations applicable to the Tokenholder when holding or transferring the DGLD.
51. The Tokenholder understands and agrees that:
- DGLD are not, and there is no anticipation that DGLD will ever be registered with the U.S. Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), or with any U.S. state agency or law of similar import, and that this offering is being made with the intention of relying upon, and remaining in compliance with, the requirements of Regulation S as promulgated under the Securities Act;
- neither GTSA nor its affiliates is registered or licensed with any U.S. federal or state regulator as an investment adviser, commodity trading adviser, commodity pool operator, broker-dealer, money services business (an “MSB”), money transmitter (an “MT”), New York Department of Financial Services-licensed virtual currency business, designated contract merchant, or any other form of U.S. regulated financial institution whatsoever;
- the offering of DGLD is being made only in those jurisdictions and to those persons where and to whom they may lawfully be offered for sale, and these GT&Cs is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of DGLD in the United States;
- no securities or other regulatory authority has expressed an opinion about the status of DGLD and it is a criminal offense under the laws of some jurisdictions to claim otherwise;
- these GT&Cs have not been reviewed by, passed on or submitted to any regulatory agency or self-regulatory organization. As a result, the Tokenholder will not be afforded the full set of protections provided to the clients and customers of such entities under any applicable laws; and
- if the DGLD are deemed to be securities, in one or more jurisdictions, or these GT&Cs or the issuance of the DGLD constitutes a non-exempt forward contract, or GTSA or its affiliates are required to register with a regulatory agency, the DGLD and GTSA could be subject to significant additional regulation, including restrictions on transferability and resale or operational activity. This could lead to significant changes with respect to DGLD, how DGLD are structured, how they are purchased and sold, and other issues, and would greatly increase GTSA’s costs in creating and facilitating transactions in DGLD. Such regulation could lead to the DGLD depreciating partially or fully in value, subject GTSA and its affiliates, directors, and officers to potential penalties, including federal civil and criminal penalties, or make the DGLD illegal or impossible to use, buy, or sell in the United States and other jurisdictions. Further, a regulator could take action against GTSA or its affiliates if it views DGLD as an unregistered offering of securities or GTSA’s operations otherwise as a violation of existing law. Any of these outcomes would negatively affect the value of the DGLD and/or could cause GTSA to cease operations.
14.3 Risk of Private Key Loss
52. DGLD allocated to a particular Blockchain Address can only be accessed with the private key that corresponds to that address. The Tokenholder understands and accepts that if its private key file or wallet password were lost or stolen, the allocated
DGLD associated with the Tokenholder's Blockchain Address would be unrecoverable and would be permanently lost. GTSA has no control over the DGLD.
14.4 Risk of Theft
53. The Tokenholder understands and accepts that, while best efforts are made to reduce potential attacks on the Software, the Software may be exposed to attacks by hackers or other individuals that could result in theft or loss of the DGLD.
14.5 Risk of Protocol Attacks and Forks
54. The Tokenholder understands and accepts that, as with other blockchains, the blockchain used for the Software could be susceptible to consensus-related attacks, including but not limited to double-spend attacks, majority validation power attacks, censorship attacks, and byzantine behaviour in the consensus algorithm or be subject to forks. Any successful attack or fork presents a risk to the Software, the expected proper execution and sequencing of transactions and the expected proper execution and sequencing of contract computations as well as the DGLD balances of the Tokenholder.
55. GTSA will use third parties as service providers for certain aspects of its tasks (Custodians, backoffice, compliance, etc.). GTSA has limited possibility to control the Software or operations of such third parties and cannot verify or guarantee the proper functionality of the third-party Software or operations.
56. Any and all liability of GTSA for direct or indirect damages suffered by a Tokenholder or any other individual is excluded to the furthest extent permitted by law.
57 Neither the Custodian nor GTSA shall be liable for any loss, damage or deterioration caused by any failure or delay in the fulfilment of their obligations under the deposit agreement if such failure or delay arises out of or is caused by Force Majeure.
58. GTSA is not liable or responsible for permanent or temporary inability to access the Platform or use any Services for any reason whatsoever.
59. Tokenholder understand that with regards to DGLD, no market liquidity may be guaranteed and that the value (if any) of the DGLD may therefore temporarily deviate from the market value of the underlying Token Gold. Any respective loss will be borne exclusively by the Tokenholder and any respective liability of GTSA is excluded.
60. GTSA‘s liability for loss or damage to Token Gold or deterioration of Token Gold not caused by Force Majeure is limited to the market value of the Token Gold at the time such loss, damage or deterioration is ascertained.
17. Data Protection
61. The personal data provided by the Tokenholder in connection with these GT&Cs (“Tokenholder Information”) shall not be transferred by GTSA or any other person or entity engaged or controlled by GTSA that may have access to such Tokenholder Information unless such transfer is required to be made to i) legal and tax advisers of GTSA or ii) governmental entities or service providers (e.g. banks or KYC providers) that are subject to respective secrecy provisions regarding the Tokenholder Information received.
62. By voluntarily providing personal data to GTSA or any other person or entity assigned by GTSA to collect such data, the Tokenholder is consenting to the use of it in accordance with this Section and the applicable data protection laws. The Tokenholder in providing personal data to GTSA or any other person or entity assigned by GTSA to collect such data, acknowledges and agrees that such personal data may be transferred from their current location to the offices and servers of GTSA and the authorized third parties, some of whom may be located outside of the Tokenholder’s country. As far as necessary for the fulfilment of regulatory and compliance obligations, the Tokenholder’s personal data may be transmitted to third parties, e.g. to banks and/or service providers. GTSA will only transfer personal data to countries for which the EU Commission or the Swiss Federal Data Protection and Information Commissioner (FDPIC) has decided that they have an appropriate level of data protection, or GTSA will implement measures to ensure that all recipients comply with an appropriate level of data protection.
63. GTSA or any other person or entity assigned by GTSA to collect such data uses reasonable physical, electronic, organizational and procedural safeguards to protect the personal information obtained from the Tokenholder from loss, misuse, and unauthorized access, disclosure, alteration, and destruction. Please note that GTSA or any other person or entity assigned by GTSA to collect such data is not responsible for the security of any data transmitted over the Internet, or any data stored, posted, or provided directly to a third party’s website, which is governed by that party’s policies. Please note that no method of transmission over the Internet or method of electronic storage is 100% secure.
64. The time periods for which GTSA retains personal data depends on the purposes for which it is used. GTSA or any other person or entity assigned by GTSA to collect such data may retain information about the Tokenholder in their databases for as long as needed to provide the described services and in accordance with applicable laws. The retention and use of personal information by GTSA or any other person or entity assigned by GTSA to collect such data will be required to comply with legal obligations, resolve disputes, and enforce agreements. The retention period may extend beyond the end of the relationship between the parties, but it will be only as long as it is necessary for GTSA to have sufficient information to respond to any issues that may arise later. For example, GTSA or any other person or entity assigned by GTSA to collect such data may need or be required to retain certain information to prevent fraudulent activity, protection against liability, permit itself to pursue available remedies or limit any damages that GTSA or any other person or entity assigned by GTSA to collect such data may sustain, or if a law, regulation, rule or guideline requires it.
65. GTSA will respond to a request for access to information collected about the Tokenholder within the time frame required by applicable law. Any such requests shall be made exclusively to:
James Bennett on behalf of GTSA: Promenade de Saint- Antoine 10, c/o MKS (Switzerland) SA, 1204 Geneva, Switzerland or [email protected]
66. Tokenholder are solely responsible for complying with any applicable laws. They acknowledge and agree that GTSA is not responsible for determining whether or which laws may apply to Tokenholder’s transactions, including tax law. GTSA bears no liability for determining whether taxes apply to Tokenholder’s transactions, or for collecting, reporting or remitting any taxes arising from any transaction.
67. All taxes (including VAT, if any) imposed on the receipt or import of DGLD or of Token Gold shall be the responsibility of, and for the account of, the Tokenholder.
19. Severability Clause
68. If any provision of these GT&Cs should be invalid in any jurisdiction under applicable law, the legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. In such an event, the Parties commit themselves to compose a legally valid replacement rule which approaches the invalid provision as closely as possible within the economic intent of these GT&Cs. These GT&Cs will be interpreted as though the invalid clause had been omitted from the outset.
20. Termination of Platform Operation
69. GTSA shall have the right to terminate the operation of the Platform at any time at its own and sole discretion.
70. In case the operation of the Platform is terminated (for whatever reason), GTSA will inform the Tokenholders of such termination via the GTSA website. Thereafter, Tokenholders shall chose between:
- redeeming their DGLD for Token Gold as described in Section 10; or
- instruct GTSA to sell the Token Gold linked to the DGLDs at its own discretion and to distribute the remaining proceeds after deduction of the Redemption Fee to the Tokenholder.
71. If GTSA does not receive an instruction from the Tokenholder within 2 months, GTSA reserves the right to proceed with a sale according to nr. 2 above. The respective monetary claim of the Tokenholder against GTSA becomes time-barred after the ordinary period of 10 years from the sale of the Token Gold (art. 127 CO).
21. Amendment of GT&Cs
72. GTSA may make changes at any time to these GT&Cs, including, but not limited to, amendment of processes, development of technology, due to regulation or for other reasons. In case of amendments, GTSA will give notice of such changes by publishing the updated GT&Cs on the GTSA website. The amended GT&Cs will in any case become effective fourteen (14) days after they are published. Amendments which are necessary due to laws, regulations, orders from competent authorities or court decisions will become immediately effective.
22. Governing Law and Jurisdiction
73. The legal relationship between Tokenholder and GTSA and these GT&Cs and all claims relating to or arising out of this legal relationship or breach of any obligations, whether in contract, tort or otherwise, the acquisition, and loss of title in the Token Gold, the content and exercise of title in the Token Gold, the legal qualification of the DGLD, the transfer of ownership in Token Gold and the use of the Platform as well as the rights and obligations of the co-owners resp. the co-ownership of Tokenholders shall be governed by Swiss Law, excluding Swiss choice-of-law principles.
74. Any dispute, controversy or claim arising out of or in connection with this legal relationship or the breach, termination, existence, legal competence or invalidity thereof, shall be exclusively settled by the courts of Geneva, Switzerland.