Responsibility for the administration of the Cryptographic Keys concerning Virtual Currencies
- 3, paragraph 8, of the directive (UE) 2015/849 as modified in the directive 2018/843 of the European Parliament and the Council of 30 May 30 2018 defines the “virtual currency” (“Virtual Currency” or in its plural form, “Virtual Currencies”) as “ a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency and does not possess a legal status of currency or money, but is accepted by natural or legal persons as a means of exchange and which can be transferred, stored and traded electronically”
- Virtual Currencies are managed through the use of Cryptographic Keys, which the User should know in detail (?) and which must be kept secret and inaccessible to third parties.
- In order to preserve the confidentiality of the Cryptographic Keys, which is necessary to manage Virtual Currencies, specific Software and/or Hardware have been developed. The use of these Software and Hardware still requires specific computer skills and the adoption of adequate security systems.
- Such circumstances hamper the diffusion of Virtual Currencies and constitute a danger to the average User, who may be interested in delegating the administration of cryptographic keys of their Virtual Currencies to a subject having appropriate technical knowledge and adequate means to provide for the security system update, following the new standards accessible and available, over time, on the market.
- By means of the resolution of the Board of Directors of the 21 March 2019, the company Coinbar S.p.A. (C.F. 14939301009), having its registered office in Rome, Via della Marcigliana 532, has established a Destinated Asset (“Patrimonio Destinato”) to handle contractual relationships with the Users (users, or in its singular form User) for the administration of Cryptographic Keys of their Virtual Currencies.
- The User identifies the Destinated Asset as the entity possessing the know-how and having the necessary technical knowledge for a better administration of Cryptographic Keys regarding Virtual Currencies on behalf of the User.
- Virtual Currencies may raise high risks as reported in the warning of 19 March 2018 issued by the Bank of Italy, in which, in particular, the Bank of Italy stressed that Virtual Currencies involve the risk of permanently losing the amount of money that have been used due to malfunctions, cyber-attacks, the absence of legal and contractual protection, of transparency, as well as of other kind of protection and guarantees of the amount of money that has been used.
IN CONSIDERATION OF THE ABOVE
By agreeing to the following terms and conditions, the User gives the Destinated Asset the responsibility to administrate, on behalf of the User, the cryptographic keys of their Virtual Currencies.
- THE MANDATE GIVEN BY THE USER, TERMS OF SERVICE AND POLICY AML.
- The mandate is conferred in accordance with the articles 1703 and 1705 c.c. and upon payment.
- The User acknowledges and recognizes that the activities which fall within the mandate conferred to the Destinated Asset, constitute provision of assistance – which is performed on a professional basis, under Directive (UE) 2015/849 as amended by Directive(UE) 2018/843 of the European Parliament and the Council of 30 May of 2018, and under the Italian transposing legislation – of services aimed at administrating and safeguarding Cryptographic keys (“Services”). Services are provided by the Destinated Asset to its Users via the “Coinbar” platform, on the website coinbar.it.
- The performance of Services by the Destinated Asset may be dependent:
- on the prior User identification, in compliance with the applicable legislation;
- on the performance of specific actions by the User;
- on the positive outcome of the inspections and verifications carried out by Destinated Asset and by the staff in charge of the administration of the Platform.
- By conferring the responsibility to the User, he/she accepts the obligations to comply with the legislation in force, including the one preventing the abuse of the financial system for money laundering and financing terrorism. The User undertakes in particular, among others, to provide his/her identification data and valid identification documents to the Destinated Asset, as well as any further information required by the latter, for the execution of the obligations required by the applicable legislation.
- The User indemnifies the Destinated Asset from any risks, prejudice, damage, cost or burden, without exception, that the Destinated Asset or Coinbar S.p.A. may undergo due to the User ‘s violations of the subparagraph 1.5.
- In any case, the Platform will be able to refuse, at any time, the responsibility and renounce to it, at its reasonable discretion, in case of suspected violation by the User, of the current regulation, including the one including the one preventing the abuse of the financial system for money laundering and financing terrorism.
- Terms of Services Value/T.o.S.
- The access to the Platform is reserved to registered Users Only, and services are performed on the basis of the following clauses (“Terms of Services” or “T.o.s.”)
- The User is requested to read the T.o.S. very carefully.
- Services are provided remotely, through the Internet. Clicking on the “Accept” button and/or using Services, Users agree to comply with the obligations under the T.o.S.
- It is the User’s responsibility to verify that the Service meets his/her expectation and needs, before clicking on the “Accept” button or accessing to the Services themselves.
3.1 Concerning the T.o.S. clauses, the following terms will have the meaning here stated:
Account Refers to the virtual account dedicated to the User
Which becomes operational after the relevant registration.
Coinbar S.p.A. Refers to the Coinbar S.p.A. company, having a legal base in Rome,
in Via della Marcigliana n. 532 – Fiscal Code and VAT number
n. 14939301009, REA: RM – 1556675.
Dati di Login Refers to both (i) Username and (ii) password chosen by Users when
singning in, to access the Platform.
Patrimonio Destinato Has the meaning previously stated
Services Has the meaning previously stated
Terms of Services Has the meaning previously stated
T.o.S. Has the meaning previously stated
Users Has the meaning previously stated
- ACCESS TO SERVICES AND REGISTRATION
- To access the Services the User must sign in on the Platform. The registration requires the User to provide:
- All mandatory data required by the Platform
- Optional information where required by the Platform
- The platform distinguishes between mandatory and optional data, which are required to register. The User declares of being aware that some Services may be reserved, including for technical reasons, only to Users who provides optional data, as it is stated on the Platform.
- Data provided when registering include the Username, which corresponds to the e-mail address and the access key (Password) which, since they are considered as a unit, are the Login Data.
- When completing the registration, the User will be able to access a personal account, by which the User will be able to use the Platform, in respect of the restrictions, when stated. The account operativity may be dependent, inter alia, upon the previous confirmation of the registration, through the link, which the User will receive at the provided e-mail address.
- The Registration to the Platform the Account access are free.
- The User’s account has an indefinite term, unless the right to unilaterally withdraw from the contractual relationship is exercised with the consequential account removal, which will be notified by e-mail.
- To access the Services the User must sign in on the Platform. The registration requires the User to provide:
ACTIVITIES FORBIDDEN TO THE USER
5.1 Users are prohibited from making the following actions, without having previously obtained the Destinated Asset’s consent:
5.1.1 Sharing Login data with any third party or allow any third party to use Logging Data, independently from the fact that such activity may be done or not in connection with a corresponding amount.
5.1.2 Assign or transfer the User’s personal account or any right given to the User based on T.o.S., to a third party, independently from the fact that such activity may be done or not in connection with a corresponding amount.
5.1.3 Using Services to offer or provide a service to any third party or using services with a different purpose from the personal one.
5.1.4 To publish, share or provide a copy of the information available on Platform, to any third party.;
5.1.5 To delete, remove or modify any brand, logo, picture or data owned by the Destinated Asset.
5.2 The User indemnifies the Destinated Asset and the Coinbar S.p.A. from any risk, prejudice, damage, cost or burden, without exceptions, they may face because of the User violation of the paragraph 5.1.
6.1 Services provided through the platform and object of the responsibility give to the User consist of:
6.1.1. The preservation and administration of the cryptographic keys, related to the Virtual Currencies, by the User.
6.1.2 When the User transfers Virtual Currencies associated to his/her own account, to addresses related to cryptographic keys which only the User have knowledge of.
6.2 The User takes note, accepts and agrees, from this moment, that any activity concerning the transfer of virtual currencies to addresses other than those related to cryptographic keys to his knowledge is excluded from the Services. The User guarantees, from this moment, to be the only person who has knowledge of the cryptographic keys related to the addresses for transferring Virtual Currencies.
6.3 The User indemnifies the Destinated Asset and the Coinbar S.p.A. from any risk, prejudice, damage, cost or burden, without exceptions, they may face because of the User violation of the paragraph 6.2.
6.4 The User, in addition, takes note, accepts and agrees that in order to ensure safety, the execution of the orders given from the User itself in accordance with the previous paragraph 6.1.2, may require the previous User’s action to confirm his/her will to make such activity, also through verification instruments or two-factors authentication (2FA).
6.5 The User has exclusive responsibility on his/her data administration, mechanism, verification instrument or two-factors authentication or, anyway, given to permit the remote identification, to prevent any illegal access. The User, in any case, must immediately inform the Destinate Asset about any unlawful access he/she becomes aware of or he/she suspects, as well as about any loss or accidental sharing of Login Data to third party or in the event that for any other reason, third parties may have had access to his/her account or to any data, mechanism, verification instrument or two-factors authentication or useful to permit the remote User identification, useful to prevent any form of illegal access to his/her personal account.
6.6. The User indemnifies the Destinated Asset and the Coinbar S.p.A. from any risk, prejudice, damage, cost or burden, without exceptions, they may face because of an inadequate custody or preservation of Login Data by the User, and/or inappropriate or negligent use of any data mechanism, verification instrument or two-factors authentication or useful to permit the remote User identification, useful to prevent any form of illegal access to his/her personal account.
6.7 The User takes note, accepts and agrees that the timing required for the completion of procedures stipulated by the Platform may vary, depending on the Virtual Currency type and its related value in fiat money, dependent on the market price. The User is not allowed to make claims against the Destinated Asset and with regard to Coinbar S.p.A. for any delay depending on the market, relative to the procedure indicated on the Platform.
6.8 Concerning the activities stated in the paragraph 6.1.1:
6.8.1 The Cryptographic Keys prevention and administration related, to Virtual Currencies, on behalf of the user, may be limited within specific limits depending on the Virtual Currency type and its related value in fiat money, dependent on the market price, and the level of User authentication, in respect of the steps given on the Platform.
6.8.2 The Destinated Asset may immediately end its relationship with the User, which will be followed by the removal of his/her account, in case the Virtual Currency source address appears, directly or indirectly, related to sources used for illegal or suspicious activities, in spite of the User obligation to transfer Virtual Currencies to sources which are only known only by the User, within the limits set by the applicable legislation . The Destinated Asset retains the right to alert the competent authorities about the circumstance.
6.8.3 In a specific section of the account section, the User will be able to access all data concerning the History of Virtual Currency, which Cryptographic Keys the Destinate Asset is in charge to administrate on behalf of the User.
6.9 Concerning the activities of paragraph 6.1.2
6.9.1 The transfer of Virtual currencies to sources which are exclusively known by the User itself, may be restricted within specific limits, concerning specific Virtual Currency type, the related value in fiat money, stock exchange listing and the level of User identification, following the platform procedures.
6.9.2 The User is responsible for providing the Destinated asset with the source, which Cryptographic Keys are known by the User itself and to make sure, under his/her responsibility, that the addresses provided for transfers are correct/accurate.
6.9.3 The User, under his/her sole responsibility, preserves the confidentiality of his/her own data. He/she must avoid to provide the same address in other circumstances and will be directly responsible for any risk, prejudice, damage, cost or burden, without exceptions, caused by the non-observance of such prevention.
6.9.4 Any provision of addresses which Cryptographic Keys are not known solely by the User, or which the User has previously provided is forbidden.
6.9.5 The User is not allowed to advance claims against the Destinated Asset and, with regard to Coinbar S.p.A, in case he/she provided the same address previously provided, which means it is wrong or, anyway, which Cryptographic Keys are not solely known by the User and indemnifies the Destinated Asset and the Coinbar S.p.A. from any risk, prejudice, damage, cost or burden, without exceptions, they may face because of User’s violation of the previous stated procedures.
6.9.6 In a specific account section the User will be allowed to access all data concerning the Virtual Currencies history, which the User asked and obtained for the transfer to sources, which Cryptographic Keys are solely known by the User.
7.1 The User agrees that all the information provided to the Destinated Asset, or with regard to Coinbar S.p.A. or on the Platform won’t be absolutely considered, in any case, as a request or solicitation to buy or sell Virtual Currencies.
7.2 When registering on the Platform, the Users declare that the possession of Virtual Currency, related to the conferring of the administration of its Cryptographic Keys to the Destinated asset, given by the User itself, is at the same time, legally permitted, in accordance with the applicable legislation depending on its own nationality, residency and/or domicile and/or any other criteria. The User indemnifies the Destinated Asset and the Coinbar S.p.A. from any risk, prejudice, damage, cost or burden, without exceptions, they may face because of a wrong or false declaration from the User.
7.3 By accepting the T.o.S. the User also declares:
7.3.2 To have knowledge and experience in the Virtual Currencies sector and the risks concerning them.
7.3.3 To be aware that the responsibility conferred to the User doesn’t involves any guarantee and, in particular, doesn’t determine any commitment, obligation or guarantee from the Destinated Asset and, with regard to Coinbar S.p.A. to maintain Virtual Currencies, under the responsibility of the User, unchanged or stable or superior to any value limit, given in fiat money.
7.3.4 To be aware of the fact that Virtual Currencies, in accordance with the Court of Justice UE in Case C-264/14, concerns the specific case of Bitcoin, they can qualify, depending on the applicable legal framework in a given EU member state, as mere payment instrument, on a contractual or voluntary basis; they, therefore, aren’t financial instruments or products, in accordance with the referential legislation, including (i) the directive of 2014/UE of the European Parliament and of the Council of the 15th of may 2014 ss.mm.ii. and (ii) the Legislative Decree n. 58 of 1998 ss.mm.ii. (Consolidated Financial Act) which, in article 1, subparagraph 2, provides explicitly that the “payment instruments are not financial instruments”. Virtual Currencies, on the other hand, don’t ensure dividend, coupon, interests or any form of output, which not exclusively related to a potential increase of the value in fiat money, and it does not give any right of refund.
7.3.5 To be aware that the Virtual Currency value expressed in fiat money solely depends on the market trend and that there are no authorities which may ensure, in an absolute and official way, such value.;
7.3.6 To be aware of the Virtual Currencies risks and uneasy clearance involves, which may affect, in a relevant way, the Virtual Currencies given value in fiat money.
7.3.7 To be aware of the fact that Virtual Currencies transfer involves, due to the technology itself, the need to pay some fees in Virtual Currencies. The amount to be paid by the User can’t be exactly predetermined.
7.3.8 To be aware of the fact that Virtual Currencies value indicated in fiat money may be impacted by possible issues related to the upgrade of the referential code or software, as well as by the governance and development project transparency, and by the system or connected network.
7.3.9 To be aware of the fact that the Destinated Asset and, with regard to Coinbar S.p.A., has no power and cannot take any responsibility or obligation for taking actions on factors or procedures stated in the previous paragraph 7.3 to defend any User interest.
7.4 The User declares to be aware of the resolution of the Coinbar S.p.A. Administrative Board of the 21st of march 2019, by which the Destinated Asset was established. Such resolution was conditioned by specific conditions within the term stated in the resolution. Having effect as of the date when the precedent condition occurs, the contractual relationship which is the established with the acceptance of these T.o.S will be considered directly established between the User and the Destinated Asset. In case of delay, such Contractual relationship belongs to Coinbar S.p.A., and any Destinated Asset’s responsibility will be replaced by Coinbar S.p.A.
- SERVICES MODALITY AND EXECUTION -REFERENCE STANDARD
8.1 The Destinated Asset undertakes to execute the tasks given by the User using, procedures, software and hardware of a level corresponding to the level adopted by rote, on average in the market, for similar activities.
8.2 The User recognizes and agrees that there are no instruments, procedures, software, and hardware, based on today’s current scientific knowledge and technological development, which ensure the elimination of security risks concerning the administration of Cryptographic Keys related to Virtual Currencies. No responsibility may be imputed to the Destinated Asset and, with regard to Coinbar S.p.A., in case of illegal accesses, computer fraud or other illegal activities, from third parties that may not be avoided by using instruments, procedures, software and hardware at a corresponding level to the one adopted, to general practice, on average, in the market, for similar activities.
- ECONOMIC RELATIONSHIPS IN FIAT MONEY
9.1 The User agrees that, in line with a possible contractual relationship between the User itself and the Destinated Asset, when buying and selling Virtual Currencies using other Virtual Currencies or fiat money, the Destinated Asset may assume a debt towards the User, because of the transfer of Virtual Currencies on his behalf and as he decided, to add funds, in favor of the Destinated Asset, with the scope of purchasing Virtual Currencies.
9.2 Possible debts in fiat money will be paid by the Destinated Asset upon request of the User, which must be carried out in respect of what is stated on the Platform, within 48 hours from the time of the request. The related payments will be done exclusively in Euros and transferred to the User’s bank account provided. Making payments in favor of third parties, different from the User is explicitly and rigorously prohibited .
9.3 The Destinated asset will be able to make the payments mentioned above only if the User gives precise and accurate identification details of his/her own bank account and proves its ownership.
- CHANGES TO T.O.S.
10.1 The Destinated Asset has the right to modify the T.o.S.
10.2 The T.o.S. Changes will become immediately in force to the New Users.
10.3 Users that are already registered will be informed of such changes and will have the right to withdraw within 14 (fourteen) days following the receipt of such information. User who has the intention to withdraw must exercise their right of withdrawal by fulfilling and sending the communication model, which can be downloaded from the following link ___________ or any other communication model having the same content. The communication of Withdrawal must be sent by e-mail to the following e-mail address: [email protected] .
10.4 Users who, after having received the information about changes to the T.o.S, do not withdraw within the given timing or make use of the Services, will be considered agreeing with the modifications.
11 GARANTEES AND RESPONSIBILITIES
11.1 Any link, provided on the platform, is mentioned for its usefulness and neither the Destinated Asset, nor the Coinbar S.p.A. are responsible of its content, accessibility and/or operability of the website related to the link.
11.2 The Destinated Asset will make any effort to constantly guarantee the access to all Services.
11.3 In any case, considering the fact that all Services are remotely provided through the Internet, the User accepts the risk of a temporary malfunctioning that may impede or limit the Destinated Asset’s possibility to constantly provide Services. Neither the Destinated Asset, nor Coinbar S.p.A. may be considered responsible for such malfunctioning, unless there is evidence of their responsibility for such serious negligence.
12 RESPONSIBILITY WITHDRAW/REVOCATIN
12.1 Any parties will have the right of unilaterally withdraw at any time from the contractual relationship. The User who intends to withdraw, revoking the conferred responsibility, will be able to do so by fulfilling and sending a communication model that can be downloaded from the following link _____ or any other communication model having similar content.
Communications or any other communication having similar content, must be sent by e-mail to the following e-mail address: [email protected] .
12.2 The User takes note and agrees that his/her own right to unilaterally withdraw, in accordance with the previous paragraph, is not subject to any terms, or limitations. Therefore, considering that such right can be exercised at more favorable conditions, the right, as it is shaped under the ToS, exceeds the one that can be exercised in accordance with the Directive 93/13/CEE of the Council and the Directive of 1999/44/CE of the European Parliament and the Council and with the Italian legislation that has transposed the Directive (Including the Legislative Decree, n° 206 of 2005 ss.mm.ii.)
13 SUPPORT AND CUSTOMER CARE
13.1 Users must dispute about Services at the following e-mail address: [email protected] .
14 SAFETY AND CONFIDENTIALITY OF USER’S DATA
15 APPLICABLE LAW AND EXCLUSIVE JURISDICION
15.1 T.o.S. will be interpreted and applied in accordance with the law of the Italian Republic and subject to the law itself.
15.2 For any controversy related to the T.o.S. interpretation, effectiveness, validity, execution and resolution, the responsibility, excluded the inescapable legal limits, is exclusively given to the (Court of Rome), excluding any other Court.
16.1 The invalidity or ineffectiveness of any clause under the ToS does not determine the integral invalidity or ineffectiveness of the T.o.S..
16.2 The Clause considered invalid or ineffective will be automatically replaced by another clause which permits to reach the same practical results, especially for what concerns the allocation of responsibility between the User and the Destinated Asset (or Coinbar S.p.A.)
- VEXATIOUS CLAUSES
17.1 The User states that he/she has read, understood and approved specifically the clauses under paragraphs 1.6, and 1.7 (Concerning the User responsibility and the renunciation of the responsibility of the Destinated Asset), 4.6 (Concerning the Destinated Asset’s right to unilaterally withdraw), 5.2 (concerning the User’s responsibility), 6.3, 6.6, 6.8.2 e 6.9.5 (concerning the User’s responsibility, the Destinated Asset and Coinbar S.p.A. responsibility limitations), 7.2 (concerning the User responsibility), 8.2 (Concerning the Destinated Asset and Coinbar S.p.A. responsibility limitations), 10 (Concerning the hypothesis under which the Destinated Asset can unilaterally unilateral withdraw), 11 (Concerning the Destinated Asset and Coinbar S.p.A. responsibility limitations), 12 (Concerning the hypothesis under which the Destinated Asset can unilaterally withdraw), 15 (Concerning the law governing the contract and the choice of the exclusive Court that shall resolve the disputes upon the T.o.S.).