Brokerage Account

1. The parties and the contract

1.1 Who we are

These General Terms and Conditions (the “Terms”) govern the relationship between Gemara SA, a company limited by shares incorporated under Swiss law, with registered office in Geneva, registered in the Commercial Register of the Canton of Geneva under number CHE-207.980.614 (“Gemara”, “we”, “us”), and the person who opens and holds a Brokerage Account with Gemara (the “Client”, “you”).

Gemara is a financial intermediary within the meaning of Art. 2 para. 3 of the Federal Act on Combating Money Laundering and Terrorist Financing (AMLA, SR 955.0). It is affiliated to VQF (Verein zur Qualitätssicherung von Finanzdienstleistungen), a self-regulatory organisation recognised by the Swiss Financial Market Supervisory Authority FINMA. That affiliation concerns compliance with anti-money-laundering obligations only. It is not a licence, an authorisation or a prudential supervision of Gemara, and it confers no protection on client assets.

1.2 Documents forming the contract

The contract between you and Gemara consists of the following documents, which apply in the following order of precedence in the event of conflict:

1. the Account Opening Form and any specific written agreement signed between you and Gemara;
2. these Terms;
3. the Fee Schedule (Annex C);
4. the Risk Disclosure Statement (Annex A);
5. the Limits and Operating Parameters Schedule (Annex B);
6. the Privacy Notice; and
7. any product-specific terms notified to you, including the Prepaid Wallet Terms where you also hold a Gemara Prepaid Wallet.

Notwithstanding the order of precedence above, no Account Opening Form, specific agreement or other document may derogate from Section 2 or Section 7, which reflect requirements of law and which Gemara cannot waive. Any provision purporting to do so is of no effect.

These documents form a single agreement (the “Agreement”). Annexes may be amended in accordance with Section 18.

1.3 Formation

The Agreement is formed when Gemara notifies you that your Brokerage Account has been opened, following successful completion of the identification, verification and due diligence process described in Section 3. Gemara is under no obligation to open an Account and is not required to give reasons for a refusal.

1.4 Defined terms

2. Regulatory status and absence of protection

This Section is fundamental. By opening an Account you confirm that you have read it and that you understand and accept its consequences.

2.1 Gemara is not a bank

Gemara does not hold a banking licence, a securities firm licence, a fintech licence under Art. 1b of the Banking Act or any other authorisation from FINMA. It does not carry on banking business and does not accept deposits from the public.

2.2 The Account relies on a specific exemption

Sums standing to your Account are not deposits from the public within the meaning of the Banking Act because they fall within the exemption in Art. 5 para. 3 let. c no. 2 BankO: they are client monies which serve exclusively to settle client transactions, they bear no interest, and they are transferred out within 60 days. That exemption is available only if those conditions are respected at all times. Accordingly:

• no interest, yield, reward, staking return or other remuneration of any kind is or will be paid on any Fiat Balance or Crypto-Asset held on the Account;
• the Account may be used only to settle transactions which you have instructed, and not as a means of holding or accumulating value; and
• no Position may remain on the Account for more than 60 calendar days, and Gemara will settle it out automatically as described in Section 7.

These constraints are regulatory requirements, not commercial preferences. Gemara cannot waive them and will not accept instructions inconsistent with them.

2.3 No deposit protection and no compensation scheme

You expressly acknowledge and accept that:

• Fiat Balances are not deposits and are not protected by the Swiss depositor protection scheme operated by esisuisse;
• they do not qualify as privileged deposits under Art. 37a of the Banking Act and enjoy no bankruptcy privilege on that basis;
• no Swiss or foreign investor compensation, guarantee or protection scheme applies to any Fiat Balance or Crypto-Asset held with Gemara;
• Gemara’s affiliation to a FINMA-recognised self-regulatory organisation relates to anti-money-laundering supervision only and does not protect your assets, does not guarantee Gemara’s solvency and does not create any claim against VQF or FINMA;
• in the event of the insolvency of Gemara, or of any bank, payment institution, custodian, exchange or liquidity provider used by Gemara, you may lose all or part of your Fiat Balance and you may rank as an unsecured creditor; and
• Gemara gives no guarantee as to the redemption, peg, convertibility or continued existence of any Supported Stablecoin, and is not the issuer of any of them.

2.4 Crypto-assets held for you

Crypto-Assets credited to your Account are held by Gemara for your account. Gemara keeps them available for you at all times and records them individually so that they may be attributed to you, with the intention that they qualify for segregation from the bankruptcy estate under Art. 242a of the Federal Act on Debt Enforcement and Bankruptcy (DEBA). Gemara does not lend, pledge, rehypothecate, stake or otherwise use Crypto-Assets held for clients for its own account or for the account of any third party.

You nevertheless acknowledge that segregation under Art. 242a DEBA has not been extensively tested before the Swiss courts, that it may not be recognised by a foreign court or a foreign insolvency officeholder, and that it does not protect you against loss caused by a failure of the underlying blockchain, a defect in a stablecoin, or the insolvency or default of a third-party custodian, exchange or liquidity provider.

2.5 No advice

Gemara executes Instructions. It does not provide investment advice, portfolio management, tax advice or legal advice, and it makes no recommendation as to whether any transaction is suitable or appropriate for you. Any market data, indicative pricing, educational material or commentary made available on the Platform is provided for information only. You act on your own initiative, on your own analysis and at your own risk.

Gemara does not deal in financial instruments within the meaning of Art. 3 let. a FinSA and considers that the services described in these Terms are not financial services within the meaning of that Act. Where, exceptionally, a Supported Stablecoin qualifies or comes to qualify as a financial instrument, Gemara will either cease to support that Supported Stablecoin in accordance with Section 4.2 and Section 7.9, or comply with the applicable requirements of FinSA in respect of it and inform you accordingly.

3. Eligibility, identification and due diligence

3.1 Who may hold an Account

An Account may be opened by:

• a natural person who is at least 18 years old, has full legal capacity, and acts exclusively in their own name and for their own account; or
• a legal entity duly incorporated and in good standing, acting through duly authorised representatives.

Accounts are strictly personal. Joint accounts are not offered. You may hold only one Account. You may not open or operate an Account for, on behalf of, or for the benefit of any other person, nor allow any other person to access or use your Account.

3.2 Excluded persons and jurisdictions

Gemara does not accept as Clients persons who are resident, domiciled, established or located in a jurisdiction which Gemara excludes from time to time, as notified on the Platform. The jurisdictions from which Gemara does not accept Clients are listed in Annex B. Gemara may amend that list at any time in accordance with Section 18, with immediate effect where required for legal, regulatory or sanctions reasons.

Gemara also refuses any relationship with persons who are, or who are controlled by or acting for, a person subject to sanctions administered by Switzerland (SECO), the United Nations, the European Union, the United Kingdom or the United States (OFAC). You must inform us immediately if your circumstances change in a way that affects this Section.

3.3 Identification and verification

Before opening the Account and throughout the relationship, Gemara is required by law and according to the VQF Regulation to identify and verify:

• your identity as contracting party (Art. 3 AMLA), by means of a valid official identification document, using in-person, video or online identification procedures in accordance with FINMA Circular 2016/7 and Arts. 44 ff. AMLO-FINMA as amended from time to time;
• for legal entities, the existence and identity of the entity, its authorised representatives and its controlling persons (Arts. 4 and 5 AMLA);
• the beneficial owner of the assets, who must be you; and
• your status as a politically exposed person, and that of persons closely associated with you.

Gemara may in addition request information and documentary evidence relating to the origin of your funds and wealth, your economic background, the purpose and intended nature of the relationship, your professional activity, your tax residence and any other matter necessary to comply with its legal obligations. You undertake to provide such information promptly, completely and truthfully, and to keep it up to date.

3.4 Consequences of non-compliance

Gemara may refuse to open an Account, or may block, restrict, suspend or terminate an existing Account and refuse to execute any Instruction, where:

• the required information or documents are not provided, or appear to be incomplete, inaccurate, outdated, falsified or implausible;
• Gemara is unable to identify the beneficial owner or has doubts about the information given;
• Gemara has knowledge or a reasonable suspicion of money laundering, predicate offences, terrorist financing, sanctions evasion, fraud or other unlawful conduct; or
• a report has been or may be made to the Money Laundering Reporting Office Switzerland (MROS).

Where Gemara makes a report to MROS, it is prohibited by Art. 10a AMLA from informing you of that report or of the resulting asset blocking. Gemara accepts no liability for any loss arising from a blocking or a delay imposed under statutory anti-money-laundering obligations, and no interest or compensation is payable in respect of any such period.

3.5 Sanctions measures

Where you, a beneficial owner, a controlling person or a counterparty becomes subject to sanctions administered by Switzerland, the United Nations, the European Union, the United Kingdom or the United States, or where a transaction would breach such sanctions, Gemara will freeze the affected assets and refuse the affected Instruction, and will report to the competent authority where required. A frozen Position is dealt with under Section 7.8. Gemara will inform you of a freeze only to the extent permitted by the applicable sanctions legislation and by Art. 10a AMLA. No interest or compensation is payable in respect of a period of freezing.

3.6 Cross-border

Gemara provides the services described in these Terms from Switzerland. The Platform is not directed at persons in any jurisdiction where the provision of such services would require an authorisation Gemara does not hold. You confirm that you approached Gemara on your own exclusive initiative and that Gemara did not solicit you in your jurisdiction of residence.

4. Nature and function of the Brokerage Account

The Account is a settlement account. It records the Fiat Balances and Crypto-Assets which Gemara holds for you for the sole purpose of executing and settling the transactions you instruct.

The Account is not, and must not be used as:

• a bank account, a savings account or a payment account;
• a means of receiving funds or crypto-assets from third parties;
• a means of transferring value to third parties, other than to a Merchant under Section 8.3;
• a custody, investment or long-term storage service; or
• a means of holding value for any period longer than the Holding Period.

No cheque book, no overdraft, no credit facility and no interest of any kind is associated with the Account. The Account may never carry a negative balance; if a negative balance arises for any reason, including a chargeback, a reversal or an operational error, you must repay it immediately on demand.

4.1 Funding the Account

You may fund your Account only from a source held in your own name, and only through the channels which Gemara makes available, currently:

• Payment card. A debit or credit card issued in your own name, subject to strong customer authentication. Prepaid, anonymous, virtual single-use and third-party cards are not accepted.
• Bank transfer. A credit transfer from a payment account in your own name held with a bank or other supervised financial institution in a jurisdiction accepted by Gemara.

Cash, cash-equivalent instruments, money remittance transfers, inbound transfers of crypto-assets from External Wallets and payments received from any third party are not accepted. Funds received in breach of this Section will be returned to source, where lawful and technically possible, at your cost, and may trigger enhanced due diligence or a report to MROS.

4.2 Supported currencies and stablecoins

The fiat currencies and Supported Stablecoins available on the Account, together with the applicable networks, are set out in Annex B and may be changed by Gemara at any time. Gemara may cease to support a currency, a stablecoin or a network with immediate effect where required for legal, regulatory, security or market-integrity reasons, in which case Section 7.5 applies to any affected Position.

4.3 Reversals and chargebacks

Where a payment used to fund your Account is charged back, recalled, reversed or otherwise not finally settled, you must repay Gemara the corresponding amount immediately on demand, together with any scheme fee, bank charge and reasonable cost of recovery, whether or not the corresponding value has left the Account and whether or not the Agreement has been terminated. Gemara may recover that amount by set-off under Section 13, from any Fiat Balance or Crypto-Asset held for you, or from any other account or product you hold with Gemara. This Section survives termination of the Agreement.

4.4 Funding hold

Value funded by payment card may not be transferred to an External Wallet, applied in payment to a Merchant or transferred to a Prepaid Wallet until the hold period set out in Annex B has expired. The Holding Period continues to run during the hold period.

5. The brokerage services

5.1 On-ramp – purchase of Supported Stablecoins

You may instruct Gemara to purchase Supported Stablecoins against a Fiat Balance. Gemara acts as principal: it sells to you from its own inventory or acquires the relevant Crypto-Asset from a liquidity provider and on-sells it to you. Gemara does not act as your agent and owes you no duty of best execution beyond the obligations set out in these Terms.

5.2 Off-ramp – sale of Supported Stablecoins

You may instruct Gemara to sell Supported Stablecoins credited to your Account against fiat currency. The resulting Fiat Balance is credited to your Account and remains subject to the Holding Period, calculated from the date on which the original Position was created in accordance with Section 7.2.

5.3 Quotes and execution

Gemara displays an indicative all-in price which includes its spread and, where applicable, network costs. A quote is valid only for the short period stated on the Platform. If you do not confirm within that period, the quote lapses and must be refreshed.

An Instruction becomes binding and irrevocable when you confirm it. You have no right to cancel, revoke or reverse a confirmed and executed Instruction, and no right of withdrawal or cooling-off period applies. Gemara may nevertheless cancel or reverse a transaction where it was executed on the basis of a manifestly erroneous price, a system malfunction, a duplicate instruction or a market disruption, in which case the parties shall be restored as nearly as possible to their position before execution.

Gemara may refuse to execute or may delay any Instruction, in whole or in part, where execution would breach these Terms, applicable law, a limit set out in Annex B or a sanctions or anti-money-laundering requirement, where the Platform is unavailable, or where market conditions do not allow reliable pricing. Gemara will notify you of a refusal unless prohibited from doing so.

5.4 Settlement and records

Gemara credits and debits the Account as soon as reasonably practicable after execution. Card funding may be provisionally credited before final settlement; Gemara may reverse a provisional credit if the underlying payment is not settled, is charged back or is reversed.

Statements and transaction confirmations are made available electronically on the Platform. You must check every confirmation and statement promptly and notify Gemara of any error, discrepancy or unauthorised transaction without delay and in any event within 30 calendar days of the entry being made available. Failing timely notification, the entry is deemed approved, save in the case of an obviously erroneous entry.

6. Fees, costs and taxes

Gemara’s remuneration consists principally of the spread applied to the price of Supported Stablecoins and of the fees set out in the Fee Schedule (Annex C). Fees are deducted from the relevant Fiat Balance or from the transaction amount.

You also bear, in all cases:

• blockchain network and validation costs (gas), which fluctuate and are not controlled by Gemara;
• currency conversion costs where a transaction involves a currency other than the currency of the relevant Position;
• correspondent, intermediary and beneficiary bank charges on outgoing transfers;
• the conversion and transfer costs of an automatic settlement under Section 7 (see Section 7.6);
• any costs reasonably incurred by Gemara in responding to a legal or regulatory order, an enforcement measure or a third-party claim concerning your Account, other than where these result from Gemara’s own fault; and
• any charges arising from a returned, rejected or recalled payment where the cause is attributable to you.

All amounts payable by you are exclusive of any tax which may be due. You are solely responsible for determining, declaring and paying any tax (including value added tax, income tax, wealth tax and capital gains tax) arising from your transactions, and for complying with the tax and reporting obligations of your jurisdiction of residence. Gemara does not withhold tax, does not provide tax reporting other than as required by law, and gives no tax advice.

7. The 60-day Holding Period and automatic settlement

7.1 The rule

No Fiat Balance and no Crypto-Asset may remain credited to the Account for more than 60 calendar days from the date on which the corresponding Position was created. The Holding Period runs continuously and is not suspended by weekends, public holidays, Platform unavailability or your absence.

7.2 When a Position is created

A Position is created on the value date on which:

• funds you have transferred, or the proceeds of a card payment you have made, are credited to the Account; or
• Crypto-Assets purchased on your Instruction are credited to the Account.

A sale, purchase, conversion or partial use of a Position does not restart the Holding Period. The Holding Period attaches to the economic value from the moment it first enters the Account, and follows it through any conversion between fiat and Crypto-Assets. This means that fiat proceeds of an off-ramp inherit the age of the Crypto-Asset sold, and Crypto-Assets acquired in an on-ramp inherit the age of the fiat used.

7.3 FIFO allocation

Where the Account holds more than one Position, every debit — whether a purchase, a sale, a transfer out, a payment to a Merchant, a transfer to a Prepaid Wallet or a fee — is allocated on a first-in, first-out basis: the oldest Position is used first, then the next oldest, and so on. Positions are aged by value date; where two Positions share a value date, they are used in the order in which they were credited.

Illustration:

7.4 Your obligation to designate a bank account

You must designate, and keep valid at all times, at least one Designated Bank Account: a payment account held in your own name (and not in the name of any third party) with a bank or other financial institution supervised in a jurisdiction accepted by Gemara. Gemara verifies that the account is held in your name before using it and may require documentary evidence such as a bank statement or an account certificate.

If you have funded the Account by bank transfer, Gemara may treat the originating account as the Designated Bank Account. If you have funded only by card, you must designate a Designated Bank Account before or promptly after your first transaction.

7.5 Automatic settlement at the end of the Holding Period

You irrevocably instruct and authorise Gemara, and Gemara undertakes, to take the following steps in respect of any Position which reaches the end of its Holding Period:

1. Conversion. If the Position consists of Crypto-Assets, Gemara sells them against fiat currency at the price obtainable at the time of execution, without prior notice to you and without any further instruction from you. Gemara is not obliged to await a particular price level or market condition and gives no undertaking as to the price achieved. Gemara executes the sale at a price derived from the reference price defined in Annex C at the time of execution, less the conversion spread set out in the Fee Schedule, which is applied on the same basis as for a sale you instruct yourself. Gemara is not obliged to await a particular price level or market condition.
2. Deduction. Gemara deducts the conversion costs, the transfer costs and any fees, charges or amounts you owe it, in accordance with Section 7.6.
3. Transfer out. Gemara transfers the net proceeds to your Designated Bank Account.

Gemara will endeavour to notify you in advance, by email or in-app message, at approximately 15 days, 5 days and 1 day before the end of a Holding Period, so that you have the opportunity to act yourself. Those notices are a courtesy. Failure to send, or your failure to receive or read, a notice does not suspend the Holding Period and does not prevent automatic settlement.

You may at any time before the end of the Holding Period avoid automatic settlement by using the Position yourself under Section 8.

7.6 Costs of automatic settlement

All costs of an automatic settlement are borne by you and are deducted from the proceeds. They comprise the conversion spread and any exchange or execution cost, blockchain network costs, currency conversion costs where the Designated Bank Account is denominated in another currency, the outgoing transfer fee, and correspondent and beneficiary bank charges. Where the residual value of a Position is less than the cost of converting and transferring it, Gemara may apply the residual value towards those costs and close the Position; nothing will then be transferred to you.

7.7 If there is no valid Designated Bank Account

If, at the end of a Holding Period, you have not designated a valid Designated Bank Account, or the transfer is returned, rejected or impossible, Gemara will:

1. convert any Crypto-Asset into fiat currency in accordance with Section 7.5 let. (a), so that the position ceases to be exposed to crypto-asset price movements;
2. hold the net proceeds, without interest and in a segregated account, for a maximum of 30 calendar days from the end of the Holding Period, solely for the purpose of completing the settlement out of the Account;
3. attempt during that period to return the net proceeds to the account or payment instrument from which the corresponding funds originally reached the Account, where that account or instrument is held in the Client’s own name and the return is lawful and technically possible;
4. block all further activity on the Account and refuse any new Instruction other than an instruction to settle out; and
5. on expiry of that period, deposit the net proceeds with a court or a depositary designated by the competent court, at the Client’s cost, in accordance with Arts. 92 and 96 of the Swiss Code of Obligations, which discharges Gemara of its obligation.

Gemara may deduct from the proceeds a reasonable administration fee as set out in the Fee Schedule and the costs of consignation.

7.8 Suspension of the Holding Period

Where a Position is subject to a blocking order, a criminal or administrative seizure, an attachment, an MROS report or any other legal impediment, the automatic settlement under Section 7.5 cannot be carried out. The Position will be frozen for as long as the impediment lasts, and no interest or compensation of any kind is payable in respect of that period. Gemara will notify FINMA or the SRO where required and will settle the Position out as soon as the impediment is lifted.

7.9 Early settlement on de-support

Where Gemara ceases to support a fiat currency, a Supported Stablecoin or a network, you irrevocably instruct and authorise Gemara to sell any affected Crypto-Asset against fiat currency and to credit the net proceeds to your Account, applying Sections 7.5 let. (b) and 7.6 as to costs. The fiat proceeds retain the age of the Position from which they derive and remain subject to the balance of the original Holding Period.

Gemara will give you at least 10 calendar days’ notice before exercising this right, and will allow you to use the affected Position under Section 8 during that period, except where a legal, regulatory or security reason requires Gemara to act with immediate effect.

8. Permitted uses of the Account

At any time before the end of the Holding Period, you may use a Position only in one of the following four ways. No other use is permitted.

8.1 Transfer of fiat to your Designated Bank Account

You may instruct Gemara to transfer a Fiat Balance to your Designated Bank Account, subject to the limits in Annex B and to the fees in Annex C. Transfers to any account not held in your own name are refused.

8.2 Transfer of Crypto-Assets to an External Wallet under your control

You may instruct Gemara to transfer Supported Stablecoins to an External Wallet, provided that the wallet is held and controlled by you personally. Transfers to a wallet controlled by a third party are prohibited and will be refused.

Before a first transfer to any External Wallet, and periodically thereafter, Gemara verifies your control over the address in accordance with Art. 10 AMLO-FINMA and FINMA Guidance 02/2019, by one or more of the following means:

• a cryptographic signature of a message provided by Gemara, produced with the private key associated with the address;
• a micro-transfer test transaction from the address in question;
• where the address is hosted by another regulated financial intermediary, confirmation from that intermediary that the address is attributed to you, together with the exchange of the originator and beneficiary information required by the Travel Rule; or
• any other technically suitable means which Gemara accepts.

Verified addresses are whitelisted. Gemara may impose a cooling-off period before a newly whitelisted address may be used, may re-verify an address at any time, and may remove an address from the whitelist. Gemara screens destination addresses against blockchain analytics and refuses transfers to addresses associated with sanctioned parties, darknet markets, ransomware, fraud, mixers, tumblers, coin-join services, non-compliant exchanges or other illicit activity.

Transfers on a distributed ledger are irreversible. You are solely responsible for the accuracy of the address and the network you specify. Gemara cannot recall, reverse or recover a transfer sent to an incorrect address, to an address on the wrong network, or to a contract which cannot receive the asset, and accepts no liability for any resulting loss.

8.3 Payment to a Merchant

You may instruct Gemara to apply a Position, in fiat or in Supported Stablecoins, in payment of an amount you owe to a Merchant which has a contract in force with Gemara. Gemara acts solely as the executor of your payment Instruction.

Gemara is not a party to the contract between you and the Merchant. It gives no warranty as to the Merchant, the goods or services supplied, their quality, legality, delivery or conformity, and it is not responsible for the performance or non-performance of the Merchant. Any dispute concerning an underlying supply must be raised with the Merchant directly. A payment Instruction executed by Gemara cannot be reversed by Gemara; any refund is a matter for the Merchant and, if made, will be credited to your Account and will constitute a new Position with a new Holding Period.

It is your responsibility to ensure that your dealings with a Merchant, and in particular any purchase of goods or services which are regulated or restricted in your jurisdiction, are lawful for you. Where a Merchant operates a regulated activity such as online gambling, you must satisfy yourself that your participation is lawful in your jurisdiction of residence and at your location.

8.4 Transfer to your Gemara Prepaid Wallet

If you also hold a Gemara Prepaid Wallet in your own name, you may instruct Gemara to transfer a Fiat Balance to that Prepaid Wallet, or to sell Supported Stablecoins and transfer the fiat proceeds to it.

Any such transfer is subject to the Prepaid Wallet terms, and in particular to the maximum balance of CHF 3,000 which may stand to the Prepaid Wallet at any time. Gemara will refuse or reduce any transfer which would cause that limit to be exceeded. Transfers may be made only to a Prepaid Wallet held in your own name; transfers to a Prepaid Wallet held by any other person are prohibited.

Once transferred, the amount ceases to be held on the Brokerage Account and the Holding Period ceases to apply to it. It becomes subject to the separate legal regime of the Prepaid Wallet, namely the exemption in Art. 5 para. 3 let. e BankO, under which the funds may be used solely for the future acquisition of goods and services and may not be transferred back to the Brokerage Account.

8.5 Prohibited uses

You may not use the Account, and Gemara will refuse any Instruction which seeks:

• to transfer value to any third party, other than a payment to a Merchant under Section 8.3;
• to receive value from any third party;
• to acquire, transfer or hold any anonymity-enhanced crypto-asset, privacy coin or asset processed through a mixer, tumbler or comparable anonymising service;
• to conduct transactions in a manner designed to circumvent a limit, a threshold or an identification requirement, including by splitting amounts (structuring or smurfing);
• to conduct trading which is abusive, manipulative, or which exploits a pricing error, a latency, an arbitrage against Gemara’s quoted price or a system malfunction;
• to carry on, whether directly or indirectly, a money transmission, exchange, remittance or payment service for third parties;
• to fund or facilitate any unlawful activity, or any activity which breaches applicable sanctions; or
• to make use of the Account otherwise than as a settlement account, and in particular to hold or accumulate value.

8.6 Forks, airdrops and issuer measures

Gemara is under no obligation to support a fork of a distributed ledger, a new asset resulting from a fork, an airdrop or any other distribution, and may decide not to claim, credit or support any of them. Where Gemara does credit such an asset to your Account, the credit constitutes a new Position and a new Holding Period runs from the date of the credit.

Where the issuer of a Supported Stablecoin freezes, blacklists or otherwise renders unusable an address or a holding, or suspends redemption, Gemara has no control over that measure, gives no warranty that the assets will be recovered, and deals with the affected Position under Section 7.8.

9. Your obligations, representations and undertakings

You represent and warrant on the date of the Agreement, and on each occasion on which you give an Instruction, that:

• you have full capacity and, where applicable, all corporate authority to enter into and perform the Agreement;
• you act in your own name and for your own account, and you are the beneficial owner of all funds and Crypto-Assets credited to the Account;
• all funds and assets you transfer to Gemara are of lawful origin and are not, directly or indirectly, the proceeds of any crime;
• all information and documents you provide are true, complete, accurate and up to date;
• you are not, and are not owned or controlled by or acting on behalf of, a person subject to sanctions, and you are not located in an excluded jurisdiction;
• your use of the services is lawful in your jurisdiction of residence and at your location; and
• you understand the nature and risks of crypto-assets and have the knowledge and experience to assess them.

You undertake to notify Gemara without delay of any change affecting the above, of any change to your name, address, contact details, tax residence, beneficial ownership, controlling persons or authorised signatories, and of any actual or suspected unauthorised access to your Account.

9.1 Security of access

You must keep your credentials, passwords, authentication devices and one-time codes secret and secure, must not share or reuse them, must use up-to-date and protected equipment and must not permit any other person to access your Account. You bear the loss arising from any transaction executed by a person who obtained access through your fault, your gross negligence or a breach of this Section. Gemara may block access at any time for security reasons.

9.2 Death, incapacity and dissolution

You, or any person acting for you, must notify Gemara without delay of your death, of any measure of adult protection or other loss of legal capacity affecting you, or, in the case of a legal entity, of its dissolution, liquidation or insolvency.

On receiving credible notice, Gemara blocks the Account, refuses any Instruction other than an instruction to settle out, and continues to apply the Holding Period and the automatic settlement in Section 7.5, which protects the estate against further price movements.

Gemara releases the net proceeds only to a person who establishes their authority to Gemara’s satisfaction, by means of a certificate of inheritance, a certificate of executorship, an official deed of appointment or equivalent documentation, and after completing the due diligence required by Section 3 in respect of that person. By way of exception to Section 8.1, Gemara may in that case transfer the net proceeds to an account held in the name of the estate or of the legally appointed representative.

Gemara may suspend any transfer where the identity of the entitled person is disputed or unclear and may, in that case, proceed under Section 7.7 let. (e).

10. Limits, blocking and monitoring

Gemara applies transaction, cumulative and velocity limits, which are set out in Annex B and which it may adjust at any time, including individually and on a risk basis, to comply with its legal obligations or to manage risk.

Gemara monitors transactions on an ongoing basis in accordance with Arts. 20 and 21 AMLO-FINMA and clarifies the economic background of any transaction or relationship which appears unusual or in respect of which there is an indication of unlawful origin (Art. 6 AMLA). Gemara may at any time, without prior notice and without being liable for any resulting loss:

• request further information or documents and suspend the Account pending a satisfactory response;
• block the Account, an individual Position or an individual Instruction;
• reduce or withdraw limits; or
• terminate the Agreement in accordance with Section 19.

For the avoidance of doubt, the blocking of an Account or a Position does not suspend the Holding Period except in the circumstances described in Section 7.8.

11. Risks

Your attention is drawn to the Risk Disclosure Statement in Annex A, which forms part of these Terms. In summary, and without limitation, you accept the risks of price volatility, of the failure of a stablecoin to maintain its peg or to be redeemable, of the loss of the entire value of your holding, of blockchain, protocol, smart-contract and network failure, of irreversible transfers, of forks and network changes, of liquidity and market disruption, of counterparty and custodian default, of cyber-attack and fraud, of regulatory change including the possible prohibition or restriction of crypto-asset services, and of the absence of any deposit protection or compensation scheme.

12. Liability

Gemara performs its obligations with the diligence customary in its business. It is liable only for damage caused by its own intent or gross negligence, and for slight negligence only where mandatory Swiss law does not permit its exclusion.

To the fullest extent permitted by law, Gemara is not liable for:

• any loss of profit, loss of opportunity, loss of value, indirect, consequential or incidental loss;
• any loss arising from price movements, market conditions, the timing of an execution or the price obtained on an automatic settlement under Section 7;
• any loss arising from an event of force majeure, including natural events, epidemics, war, terrorism, civil unrest, strikes, failure or interruption of electricity, telecommunications, internet or blockchain networks, cyber-attack, or an act or omission of a public authority;
• any loss arising from the act, default or insolvency of a third party, including a bank, card scheme, acquirer, custodian, exchange, liquidity provider, blockchain validator, stablecoin issuer or Merchant, provided Gemara has exercised due care in its selection and monitoring;
• any loss arising from your own breach of these Terms, from inaccurate Instructions, from an incorrect wallet address or network, or from a failure to keep your credentials secure;
• any loss arising from measures taken in compliance with a legal, regulatory, sanctions or anti-money-laundering obligation, including blocking, refusal, delay, reporting and account closure; and
• unavailability, interruption, maintenance or malfunction of the Platform, which is provided on an “as available” basis.

Where Gemara is liable, its liability is limited to the direct damage suffered and, in aggregate per event, to the amount of the fees and spread you paid to Gemara in respect of the transaction concerned, or CHF 10,000 if higher.

13. Set-off, retention and pledge

Gemara may at any time set off any claim it has against you, whether due or not and in whatever currency, against any Fiat Balance or Crypto-Asset held for you, and may convert Crypto-Assets into fiat currency for that purpose. Gemara holds a right of retention and a first-ranking pledge over all assets credited to the Account as security for all claims arising from the Agreement. You may not set off any claim against Gemara without Gemara’s written consent.

14. Data protection

Gemara processes personal data in accordance with the Swiss Federal Act on Data Protection (FADP) and, where applicable, the EU General Data Protection Regulation. Processing is described in the Privacy Notice, which is available on the Platform.

You acknowledge that Gemara is required to collect and retain identification data, transaction records and supporting documents and to keep them for at least ten years after the end of the relationship or the execution of a transaction (Art. 7 AMLA). You further acknowledge that Gemara is required by the Travel Rule to transmit your name and other identifying information to the financial intermediary or service provider on the other side of a crypto-asset transfer, including where that party is located outside Switzerland, and that Gemara may disclose data to authorities, correspondent institutions, card schemes, service providers and group companies where necessary to perform the Agreement or to comply with its legal obligations. Where data is transferred to a country without adequate protection, Gemara applies appropriate safeguards or relies on a statutory exception.

Gemara uses automated systems to monitor transactions, to screen names and distributed-ledger addresses and to apply limits. A decision to refuse, delay or block an Instruction may be taken on an exclusively automated basis. Where such a decision produces a legal effect or significantly affects you, you may request that it be reviewed by a natural person, may state your point of view and may request that the decision be reconsidered. This right does not apply, and Gemara will not enter into correspondence, to the extent that Art. 10a AMLA, sanctions legislation or another statutory restriction prevents Gemara from informing you.

15. Communications

Communications are made electronically, through the Platform, by in-app message or by email to the address you have registered. You consent to receiving all contractual documents, statements, confirmations, notices and amendments in electronic form, and you undertake to maintain a valid email address and to consult your Account and your messages regularly. A communication is deemed received on the day it is sent or made available. Gemara may record telephone calls and retain electronic correspondence as evidence.

You bear the risk of loss, delay, interception or misdirection of a communication resulting from the transmission channel, save where this results from Gemara’s gross negligence.

16. Complaints

Any complaint should be addressed to Gemara’s Compliance function at the address published on the Platform. Gemara acknowledges complaints promptly and endeavours to provide a substantive response within 30 calendar days. As the services described in these Terms are not financial services within the meaning of FinSA, no ombudsman procedure under Arts. 74 ff. FinSA is available in respect of them. This does not affect your right to bring proceedings before the competent courts.

17. Outsourcing and assignment

Gemara may entrust the performance of parts of its services to third-party service providers, in Switzerland or abroad, in accordance with applicable regulatory requirements, and remains responsible for the diligent selection, instruction and monitoring of such providers. Gemara may assign or transfer the Agreement, in whole or in part, to a group company or in the context of a transfer of business, and you consent in advance to such transfer. You may not assign or transfer your rights or obligations under the Agreement.

18. Amendments

Gemara may amend these Terms and their Annexes at any time. It will notify you of any material amendment at least 30 calendar days before it takes effect, by electronic communication. If you do not accept the amendment, you may terminate the Agreement without charge before the effective date; if you do not terminate, the amendment is deemed accepted. Changes to the Fee Schedule, to Annex B and to the list of Supported Stablecoins, and changes required by law, by a regulator or for security reasons, may take effect with immediate effect and without prior notice.

19. Duration, termination and closure

The Agreement is concluded for an indefinite period. You may terminate it at any time, with immediate effect, by giving notice through the Platform, subject to the settlement of any pending transaction and the payment of any amount you owe.

Gemara may terminate the Agreement at any time by giving 30 calendar days’ notice, without giving reasons. Gemara may terminate with immediate effect where you are in material breach of the Agreement, where you have provided false or misleading information, where continuation of the relationship would expose Gemara to a legal, regulatory, reputational or sanctions risk, where Gemara is unable to complete or refresh its due diligence, or where required by law or by an authority.

On termination, no new Instruction may be given other than an Instruction to settle out. Gemara converts any remaining Crypto-Assets into fiat currency, deducts all amounts due to it, and transfers the net proceeds to your Designated Bank Account, at your cost. Sections 7.6 and 7.7 apply. The provisions of Sections 2, 6, 7, 12, 13, 14, 20 and 21 survive termination.

20. Miscellaneous

If any provision of the Agreement is or becomes invalid, illegal or unenforceable, the remaining provisions remain in full force, and the invalid provision is replaced by a valid provision which comes closest to the economic intention of the parties. Gemara’s failure or delay in exercising a right does not constitute a waiver of that right. Headings are for convenience only. The Agreement constitutes the entire agreement between the parties in respect of its subject matter and supersedes any prior understanding.

These Terms are drawn up in English. Where a translation is provided, it is for convenience only and the English version prevails in the event of any discrepancy, save where mandatory law provides otherwise.

21. Governing law and jurisdiction

The Agreement and all non-contractual obligations arising out of or in connection with it are governed exclusively by Swiss substantive law, to the exclusion of its conflict-of-law rules and of the United Nations Convention on Contracts for the International Sale of Goods.

The exclusive place of jurisdiction for any dispute is Geneva, Switzerland. This is also the place of performance and the place of debt enforcement for Clients domiciled abroad. Mandatory places of jurisdiction, including those available to consumers under Art. 32 of the Swiss Civil Procedure Code and under any applicable international convention, are reserved. Gemara additionally reserves the right to bring proceedings before the courts of your domicile or before any other competent court.

22. Force majeure

22.1 Definition

A “Force Majeure Event” means any event beyond the reasonable control of the party affected which prevents or materially impedes the performance of an obligation under the Agreement, including natural events, fire, flood, epidemic or pandemic, war, terrorism, civil unrest, strikes or other industrial action, the failure or interruption of electricity, telecommunications, internet or distributed-ledger networks, cyber-attack, the failure or insolvency of a bank, custodian, exchange or liquidity provider, the freezing, blacklisting or discontinuation of a Supported Stablecoin by its issuer, the absence of any market permitting execution, and any act, omission, measure or order of a public authority.

22.2 Liability

Neither party is liable for, or in breach of the Agreement by reason of, any failure or delay in performing an obligation which is caused by a Force Majeure Event. The affected obligation is suspended for the duration of the event and for such reasonable period afterwards as is required to resume performance.

22.3 Notification

The affected party will notify the other without undue delay of the Force Majeure Event and of its expected duration, will use reasonable endeavours to mitigate its effects and to resume performance, and will notify the other when it ceases. Where Gemara is the affected party it will inform Clients by electronic communication or through the Platform.

22.4 Surviving obligations

A Force Majeure Event does not excuse an obligation to pay a sum of money which fell due before the event began, and does not excuse your obligation under Section 4 to repay a negative balance.

22.5 Settlements

Where a Force Majeure Event prevents the settlement out of a Position, Section 7.8 applies and the Holding Period is suspended for the duration of the impediment.

22.6 Termination following a Force Majeure Event

Where a Force Majeure Event continues for more than 30 consecutive calendar days, either party may terminate the Agreement on written notice with immediate effect, without liability, subject to the settlement out of the Account under Section 19 as soon as the event permits.

Annex A – Risk Disclosure Statement

This Annex forms an integral part of the Terms. It is not exhaustive and does not describe every risk associated with crypto-assets.

A.1 Market and valuation risk

Crypto-asset prices are highly volatile and may move sharply, including outside normal business hours and without warning. The value of your holding may fall substantially and may fall to zero. Past performance is no indication of future performance. Prices quoted by Gemara may differ from those available elsewhere.

A.2 Stablecoin-specific risk

A stablecoin is not a bank deposit, is not legal tender and carries no state guarantee. Its value depends on the issuer’s reserves, its redemption arrangements and market confidence. A stablecoin may lose its peg temporarily or permanently, may become illiquid, may be frozen or blacklisted at the address level by its issuer, may cease to be redeemable, and may be discontinued. Gemara is not the issuer, has no control over the issuer, and assumes no obligation in respect of the peg or of redemption.

A.3 Technology and network risk

Distributed ledgers may be subject to congestion, delay, high or unpredictable transaction costs, forks, protocol changes, consensus failures, majority attacks, smart-contract defects and other technical failures. Transfers are irreversible and cannot be recalled. A transfer sent to an incorrect address or on an incorrect network is permanently lost.

A.4 Counterparty and insolvency risk

Gemara relies on banks, payment institutions, custodians, exchanges and liquidity providers. The failure of any of them may result in the loss or unavailability of your funds or assets. You have no deposit protection and no compensation scheme. See Section 2.3.

A.5 Operational, cyber and fraud risk

Systems may fail or be unavailable. Crypto-assets are a frequent target of theft, hacking, phishing, social engineering and investment fraud. Gemara will never ask you for your password, your seed phrase or a one-time code, and will never ask you to transfer assets to an address for “verification”, “recovery” or “unlocking”. Treat any such request as fraudulent.

A.6 Legal and regulatory risk

The legal treatment of crypto-assets is developing rapidly in Switzerland and internationally. Future legislation, including the revision of the Financial Institutions Act contemplating new licensing categories for payment and crypto institutions, and the ongoing revision of the FINMA Anti-Money Laundering Ordinance and the VQF Regulation, may change or restrict the services described in these Terms, may impose additional obligations on you or on Gemara, and may require Gemara to modify, suspend or discontinue a service. It is your responsibility to comply with the law of your own jurisdiction.

A.7 Tax risk

Transactions in crypto-assets may give rise to tax consequences which depend on your personal circumstances and jurisdiction. You should take independent tax advice.

Annex B – Limits and operating parameters

The parameters below apply from the effective date and may be amended by Gemara in accordance with Section 18. Individual limits may be set lower on a risk basis.

Annex C – Fee Schedule

All fees are exclusive of blockchain network costs and of third-party bank charges, which are passed through at cost.