Responsability for the execution of the purchase orders or sale of virtual currencies
- The art. 3, point 18 of the Directive (EU) 2015/849, as amended by the Directive (EU) 2018/843 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 may 2018 defines the “virtual currency” (afterwards “Virtual Currency”, or in its plural form, “Virtual Currencies”) as “ a representation of digital value which is not issued or granted by a central bank or by a public entity, it is not necessary associated with a legally instituted currency, it doesn’t have the legla status as a currency or as money, buti it is accepted by physical or legal people as a medium of exchange and it can be elettronically transferred, stored and exchanged.
- The art.2 paragraph 1, point 3), lett. g) defines the services providers, whose business consists of providing exchange services between Virtual Currencies and currencies that have a legal rate.
- To the mentioned category belong all the entities, which perform services aimed at allowing users (aterwords “Users” or in its singular form, “User”) to buy or sell Virtual Currencies, corrisponding to fiat currencies.
- Exchange services can allow Users to buy and sell virtual currencies, also corresponding to other and different virtual currencies.
- By deliberation of the Board of Directors of the 21st of march 2019 the company Coinbar p.A. (C.F. 14939301009), having a registered office in Rome, Via della Marcigliana 532, has set up an intended estate (afterwards “Intended Estate”, to manage the exchange activity.
- The purchase of virtual includes high risks as noted in the Bank of Italy’s warning of the 19th of March 2018, under which, in particular, it involves risks of permanent losses of the used amount of money, caused by malfunctions, cyber attacks, absence of legal and contractual guardianship, information requirements, protection transparency, forms of protection or garantee of the used amount of money.
Given the above, premised and considered as integral and substantial part of this act, with full pact’s strength between the parties.
With the acceptance of these terms and conditions, the User confer the responsability to the destined asset to, on behalf of the User, enforce the pruchase and sale orders of virtual currencies, through the exchange services provided from the destined asset itself.
- Responasbility of the User, conditions for the Services and Policy AML completion.
- The responsabilty is meant conferred in the meaning of Articles 1703 and 1705 c.c. and for valuable consideration.
- The User takes note and recognises from now that the activities under the conferred responsability given to the destinated asset constitue professional services, in the meaning of the directive (UE) 2015/849,as modified by the directive (UE) 2018/843 of the European Parliament and of the Council of the 30th of may 2018, as well as regarding the italian transposing legislation, of functional facilities concerning the exchange of virtual currencies including purely fiat money or other virtual currencies (hereinafter jointly also “Services”). All Services are offered by the Destinated Asset to its Users through the “Coinbar” platform, accesible from the website www.coinbar.it (hereinafter the “Platform”).
- The performance of the services, under the resposnability conferred, the User will be subject:
- to the prior identification of the User in the manner prescribed by, the legislation in force from time to time;
- to the fulfilment of specific actions of the User itsel;
- to the succesful outcome of controls and checks made by the …. And by the the staff authorized to manage the Platform.
- The activities of the previous point 1.3 will be performed under the terms and considions and following the modalities setted out in the “Policy AML” section of the Platform, which forecasts must clearly be regarded, reminded and transcribed, forming an integral and substantial part of the T.o.S.
- With the bestowal of the responsability, the User accepts to oblige himself/herself to carefully observe the legislation in force from time to time, including the one concerning the prevention of the financial system usage, with the scope of money laundering concerning the proceeds of criminal activities and finaning terrorism. The User agrees in specific, and among the other things, to provide to the Destinated Asset, his/her own identification data and valid identification documents and further information required by the latter, to meet the obligations required and envisaged by the legislation in force from time to time.
- The User assumes the obligation to take any responsability concerning risk, injury, damage, cost or burden, none of them excluded, that the Destinated Asset and, as necessary, Coinbar S.p.A., would face due to the violation of point 1.5 from the User itself.
- In any case, the platfrom will be able to refuse the responsability or to give up to it, at any time, without the User having pretentions, in case there even being the suspicion of violation, from the User, about the legislation in force, including the one concerning the financial system usage prevention with the purpose of money laundering concerning the proceeds of criminal activities and finaning terrorism.
2 Value of the TERMS OF SERVICES/T.O.S.
2.1 The access to the platform is reserved to the registerd Users and the services are provided based on the following clauses:
2.2 The user is invited to read the T.o.S. very carefully.
2.3 The Services are services provided distantly through the internet. Clicking on on the “Accept” button and/or using the Users services accepting the oblige to respect the T.o.S.
2.4 It is responsability of the User to very that the services satisfy his/her expectations and needs before clicking the “Accept” button and to access to this Services.
3.1 In the T.o.S. clauses, the following terms will have meaning to the attributed sections:
Account It concern the virtual bank account dedicated to the User who has
Verified the respensability to the Destinated asser, for the manage of
Cryptographic keys relative to the virtual currencies and that starts to
Be operative after the registration.
Coinbar S.p.A. It’s the Coinbar company, which has a legal base in
Via della Marcigliana n. 532 – fiscal code and VAT number
n. 14939301009, REA: RM – 1556675.
Login Data They concern both the (i) username and (ii) password chosen by the
Users when registering, to access the Platform after conferring the
responsability to the Destinated Asset, allowing to manage the
Cryptographic keys relative to the virtual currencies;
Destinated Asset It has the meaning stated above
Services It has the meaning stated above
Terms of Services It has the meaning stated above
T.o.S. It has the meaning stated above
Users It has the meaning stated above
- Access to Services- CONTRACTUAL RELATIONSHIP AUTONOMY
4.1 The access to the Services is reserved to Users who have managed, in advance, to register on the platform, conferring to the Dedicated asset, the responsibility of the Cryptographic keys relative to the virtual currencies management.
4.2 1 The access to the Services, also, require the previous specific acceptance from the user, of the relative T.o.S.; that must be considered as different from the one concerning the responsibility conferred to Users, to manage the Cryptographic keys relative to the virtual currencies.
4.3 The User takes note and acknowledges that the contractual relationship afferent the services which are subject of the T.o.S. constitute an autonomous and diverse contractual relationship from the one related to the conferral of the responsibility conferred to manage the Cryptographic keys relative to the virtual currencies.
4.4 The responsibility conferred including the the T.o.G agreement, has an indefinite duration, within the right of both parties, to unilaterally terminate their participation to the contractual relationship, with consequent cancellation of the account, including a prior simple notification to the other party, through e-mail.
4.5 Considering what is stated in point 4.4, which precedes, the dissolution, for any reason, without exception, of the contractual relationship related to the responsibility of the cryptographic keys, determines also the immediate resolution of the contractual relationship afferent Services.
4.6 The acceptance of the T.o.S. doesn’t involves burdens to the User, which, instead, are related to the implementation of act of buying and selling.
5 Activities unauthorized to the user
5.1 Users must not perform the following activities, without the prior written consent of the Destinated asset.
5.1.1 Give orders about buying and selling virtual Currencies, on behalf or for the benefit of parties which differ from the User, independently from the fact that such activities are whether or not performed to receive a compensation;
5.1.2 Using the Services to offer or give any service to any third party or using services with scopes different from the strictly personal one.
5.1.3 Publishing, spreading and providing a copy of the information available on the Platform, to any third party.
5.1.4 Deleting, removing, or altering any brand, logo, picture or data about the responsibility given to the Destinated Asset.
5.2 The User assumes the obligation to take the responsibility of any risk, prejudice, damage, cost or burden, without exceptions, that both the Destinated Asset and, as necessary, Coinbar S.p.A. may undergo as a result of the User violation of the point 5.1.
6.1 The Services provided through the Platform and object of the responsibility given to the User, consists of the execution of purchase or sale orders given by the User following the modalities set out in detail on the Platform.
6.2 Purchase and ale orders are given by the user through the Platform, following the required procedures.
6.3 It is responsibility of the user, to verify, most diligently, the accuracy of the information provided to make a purchase or sale orders concerning: the virtual currency type to buy or sell, relevant quantities, the payment and any other required data, even if eventual and not required, using the features and following the modality required by the platform.
6.4 The User takes note, accepts and agrees that, for a security purpose, the execution of the the given command, under what stated in the previous point 6.1, could be also mandatory dependent from the prior fulfilment, by the User, of certain actions, concerning the his/her will to accomplish them, also through verification instruments or the two-factors authentication (2FA).
6.5 It is agreed, in any case, that the user has the sole responsibility to manage any data, mechanism or verification instruments, or two-factors authentication or, anyway, useful to allow a remote identification, with the scope of preventing any unlawful access to the account. In any case, the user must immediately inform the Destinated Asset of any unlawful access to his/her own account, he/she is aware of or that he/she suspect, as for the loss or the involuntary diffusion of login data to third parties or, as well as the fact that, for any reason, third parties could have had or have access to the account or to any other data, mechanism, verification instrument, two-factors authentication or, anyway, useful to identify the User remotely, to prevent any unlawful access to the User’s account.
6.6 The User takes the duty to hire the responsibility of any risk, prejudice, damage, cost or burden, with no exclusion, that the Destinated Asset and Coinbar S.p.A. may undergo as a result of a bad custody or preservation of the login data by the User and/or because of the improper or negligent use of any data, mechanism or verification instrument, two-factors authentication or, anyway, useful to identify the User remotely, to prevent any unlawful access to the User’s account.
6.7 The user takes note, accepts and agrees that the timing needed to execute the purchase or sale orders, given by the User itself, set out on the Platform, may vary depending on the virtual currency type and the related value in fiat money, following the market price and the identification of the User, following the procedures indicated on the Platform. In any case, the User, won’t be allowed to have specific pretentions from the Destinated Asset and from Coinbar S.p.A. for any delay depending by the market and not by the Platform procedures.
6.8 For the activities of the point 6.1 in a dedicated section of the account, the User, will be allowed to access all the data concerning the virtual currencies purchase and sale orders history actually executed following the related conditions.
6.9 The economic conditions related to execution of the purchase and sale orders given by the User are indicated on the Platform and it will be possible to determine them both at a fixed rate and on a percentage in respect of the single order amount executed.
7.1 The User takes note that all the information provided to the Destinated asset or, because of it, to Coinbar S.p.A. or, moreover, on the Platform must not be considered as an invitation or request to buy or sell virtual currencies.
7.2 When registering on the User Platform, declares that the purchase and or the sale of virtual currencies, which undergo under the Destinated Asset responsibility, given by the User itself, to manage also the related Cryptographic keys, are legally conferred to the User considering the Nationality, and/or it’s residence and/or domicile and/or any other criteria related to the User. The User takes the duty to hire the responsibility of any risk, prejudice, damage, cost or burden, without exceptions, that the destinated Asset and Coin bar S.p.A. may undergo because of a wrong or false declaration given by the User.
7.3 Agreeing with the following T.o.S. The User also declares:
7.3.2 To have knowledge and experience in the Virtual Currencies sector and about the risks related.
7.3.3. To be aware that the responsibility conferred to the User does not entail any guarantee of any kind and, in particular, doesn’t determine any commitment, obligation or guarantee, dependent from the Destinated asset and from Coinbar S.p.A., to keep unchanged or stable or superior to any kind of value, in fiat money, the virtual currencies eventually purchased by the User.
7.3.4. To be aware that virtual currencies , taking into account the judgment of the Court UE in case C‑264/14 related to the specific case of Bitcoin, that embodies the first historical example and by diffusion, can be classified, in the field of rights enforceable in the European Union, as way or means of payment, on a contractual or voluntary basis, they do not constitute instruments or financial products in the sense stated by the relevant regulation, including (i) the Directive 2014/65/UE of the European Parliament and the Council of the 15th of May 2014 ss.mm.ii. and (ii) the Legislative Decree n°58 of 1998 ss.mm.ii. (“Consolidated Law on Finance”) that, art. 1, subparagraph 2, expressly stipulates that “payment instruments are not financial instruments”: Virtual Currencies, on the other hand, doesn’t guarantee dividend, coupon, interests or any kind of output, which is not exclusively and strictly related to the eventual or hypothetical increase of the respective value expressed in fiat money, neither raise gives any right on the refund of the amount.
7.3.5. To be aware that the Virtual Currencies value expressed in fiat money depends exclusively on the market trend and that there are no authorities which may certify, in an absolute or official way, such value.
7.3.6. To be aware of the risks, having an uneasy clearance of Virtual Currencies, which may affect also ina a meaningfully measure, on the value of Virtual Currencies given in fiat money.
7.3.7 To be aware of the fact that the transfer of Virtual Currencies involves, because of the very nature of the related technology, the need to pay some fees in Virtual Currencies, which entity and relevant measure can be previously determined exactly, for which the User will be responsible and that are added to the equivalent of the Services.
7.3.8 To be aware that the Value Currencies, expressed in fiat money can resent also of eventual problems related to the development of the code or software related, as well as the governance and the transparency of the development projects, and of the system or network connected.
7.3.9 To be aware that the Destinated Asset and, as appropriate, Coinbar S.p.A. do not have any possibility or power, neither take any undertakings or obligations of any kind, to intervene on factors and processes, as at point 7.3, to preserve any kind of interest of the User.
7.4 The User states, ultimately, to be aware of the effects of the Resolution of the Board of Directors of the 21st of March 2019, of Coinbar S.p.A. with which the Destinated Asset was established, have been Anti-settling affected when specific conditions occur. With PSF originating from the date in which the condition precedent will occur, the contractual relationship deriving from the agreement of the T.o.S. will be considered directly established between User and Destinated Asset. Concerning the late payments, such contractual relationship, instead, will be considered established directly between the User and the Destinated Asset.
8 Completion Services Modality- reference standard
8.1 The Destinated Asset hires the responsibility conferred by the User adopting instruments, procedures, software and hardware of a level which corresponds to the one adopted by practice.
8.2 The User recognize and agrees there are no instruments, procedures, software and hardware, based on the current scientific knowledge and the current technological development, which guarantee the complete elimination of any kind of risk about security when buying or selling Virtual Currencies. No responsibility may be imputed to the Destinated Asset or, as appropriate, Coinbar S.p.A. in case of unlawful access, Computer fraud or other illegal activities from third parties, that could not be avoided with the use of instruments, procedures, software and hardware of a level equivalent to those used, to general practice, adopted on average in the market, for similar activities.
- ECONOMIC RELATIONS EXPRESSED IN FIAT MONEY
9.1 The User recognizes sale orders of Virtual Currencies with the equivalent value in fiat money imparted by the latter, The Destinated Asset may, from time to time, taking on debt with the User.
9.2 The eventual debts in fiat money will be payed by the Destinated Asset upon the request of the User, to be made respecting the procedures specified on the Platform, within 48 hours from the request. Related payments will be done exclusively in euros and transferred exclusively on the User’s bank account given. It is expressly and rigorously excluded any possibility of transfer in favor of third parties, different from the User.
9.3 To allow the Destinated Asset to do the payments, previously specified, the User has the burden to give precisely and correctly the bank account details and to prove the corresponding ownership.
- T.o.S. CHANGES
10.1 The Destinated Asset reserves the right to modify the T.o.S. at any time.
10.2 The modifications of the T.o.S. will become immediately effective to the new Users, with effect from the date of their publication on the platform.
10.3 Registered Users will be informed of any modification of the T.o.S. and will have the right to withdraw within 14 days after receiving such informative. Users willing to withdraw must exercise the right to withdraw fulfilling the and sending the disclosure model, which can be downloaded from the following link __________________ or from any other disclosure having equivalent content. Withdraw disclosures, must be sent through e-mail to the following e-mail address: [email protected]
10.4 Users who, after receiving the informative about the modification of the T.o.S., would not exercise the withdraw right within the term previously specified or, anyway, use the Services, will be considered as expressly agreeing with the modifications.
- GARANCIES AND RESPONSABILITIES
11.1 Any link mentioned on the Platform is mentioned for mere usefulness an neither the Destinated Asset nor Coinbar S.p.A. may be considered in any case responsible for their content, the accessibility and/or the operability of the website which the link refers to.
11.2 The Destinated Asset will make any valid effort to ensure the availability of the Services on an ongoing basis.
11.3 In any case, considering that the Services are provided remotely through the Internet, The User accepts the risk of a temporary malfunction that could prevent or limit the possibility to the destinated asset, to provide Services on an ongoing basis. Neither the Destinated Asset, nor Coinbar S.p.A. may be considered responsible for eventual malfunctions, unless if proved that they are responsible of such negligence.
12 WITHDRAWAL/RESPONSIBILITY REVOCATION
12.1 Each party will have the right to withdraw unilaterally at any time, from the contractual relationship. The User who’s intentioned to withdraw, revoking the responsibility given, will be able to do it fulfilling and sending the disclosure model, which can be downloaded at the following link ____________ or any other disclosure having equivalent content.
The disclosure of withdrawal/revocation of the responsibility must be sent through e-mail to following e-mail address: [email protected] .
12.2 The User takes note and recognizes that his/her own unilateral right to withdraw, in accordance with the previous paragraph, is not subject to terms, or limits of any kind and, therefore, it is able to be exercised under more favorable conditions, surpassing the one eventually receivable as well as in accordance with the Directive 2011/83/UE of the European Parliament and the Council of the 25th of October 2011, with the Directive 93/13/CEE of the Council and with the Directive 1999/44/CE of the European Parliament and the Council, as well as with the Italian transposing legislation (including the Legislative Decree n°206 of 2005 ss.mm.ii).
12.3 The User, in accordance with legal standards, including those mentioned in the previous paragraph 12.2, won’t have the right to be refunded, for the related afferents the purchase or sale operations of Virtual Currencies, for which it was already given the execution at the exact moment of the withdrawal.
- USER SUPPORT AND CARE
13.1 Users may dispute the Services at the following e-mail address: [email protected]
- PROTECION OF THE USER’S DATA PRIVACY
- APPLICABLE LAW AND EXCLUSIVE JURISDICTION
15.1 The T.o.S. will be interpreted and applied in accordance with the law of the Italian Republic and subject of the same institution.
15.2 Concerning any controversy related to the T.o.S. interpretation, effectiveness, validity, execution or resolution, the responsibility, except for mandatory limits foreseen by the law, is given exclusively to the Court of Rome (Foro di Roma), with the exclusion of any contender Court.
16.A INVALIDITY/ INEFFECTIVENESS
16.1 Invalidity or ineffectiveness of any clause of the T.o.S. doesn’t determine the integral invalidity or ineffectiveness of the T.o.S.
16.2. The Clause eventually considered invalid or ineffective will be automatically substituted with another clause, which is compliant with the legal standards and that allows to reach the same practical result, especially for what concerns the responsibility distribution between the User and the Destinated Asset (or, for the sake of it, Coinbar S.p.A.)
17 VEXATIOUS CLAUSES
17 The User declares to have read and understood and to approve the clauses of the previous paragraphs 1.6 and 1.7 (In respect of the User’s responsibility and to the Destinated Asset withdrawal of the responsibility laid down therein), 4.4 (in respect of the Destinated Asset unilateral right of withdrawal laid down therein), 4.5 (in respect of the automatic resolution hypothesis of the contractual relationship laid down therein ), 5.2 (in respect of User’s responsibility laid down therein), 6.6 (in respect to the User’s responsibility laid down therein), 8.2 (in respect of the limitation of liability of the Destinated Asset and Coinbar S.p.A. laid down therein), 11 (in respect of the unilateral withdrawal hypothesis of he Destinated Asset and Coinbar S.p.A. laid down therein), 12 (In respect of the unilateral withdrawal hypothesis of the Destinated Asset laid down therein), and 15 ( in respect of the applicable law and to the choice of the exclusive court for the disputes.