Version 2.3, 20 November 2024
These issuer terms and conditions ("Terms") apply to all services provided by Aktionariat AG, Weinbergstrasse 18, 8703 Erlenbach, Switzerland ("Company" or "Aktionariat") to corporate customers purchasing the share tokenization solutions from Company (the "Customer"), unless explicitly agreed otherwise in an offer or otherwise in text form.
Any offer provided to the Customer is binding until the date designated in the offer. The Company reserves the right to revoke or amend any offer at any time. With the acceptance of the offer, the Company enters into a binding contract for the agreed services, subject to these Terms (the "Agreement"). In case of conflict between an offer and these Terms, the offer prevails.
The scope of the services is outlined in the offer and may be amended from time to time between the parties (the "Services").
The Company:
The Company constantly develops and improves its Services and may modify or either temporarily or permanently stop providing the offered Services or any part of it at its sole discretion. In case of material changes to the Services, i.e., changes significantly altering the nature and scope of the Services provided to the Customer according to the Agreement, the Company will notify the Customers that are directly affected by such changes with reasonable prior notice (and at least six months before discontinuing important services).
The Company may amend the Terms from time to time at its sole discretion by publishing an updated version of the Terms on the Company's websites. Where possible, the Company will electronically notify the Customer of any material changes to the Terms. The Customer should check the Terms regularly and only use the Services upon acceptance of the changes to the Terms. The Customer's continued use of the Services following any amendments indicates acceptance of the changes to the Terms.
If the Customer disagrees with the material change to the Services or the Terms (including changes of the respective fees), the Customer may terminate the Agreement within one (1) month from the Company's notice where applicable, otherwise from the publication of the respective change. Such termination is effective from the date the changes take effect or the delivery date of the termination notice if occurred after the changes took effect.
The Services may include the following products and technical services (the "Technical Services" – further details on the services are in the service descriptions in Annex 1 hereto).
Aktionariat provides the Company with general technical and business advice as reasonably required in Aktionariat's discretion to implement the Services. Special requests or circumstances may be subject to additional advisory fees.
Aktionariat does not provide and is not specialized in providing any tax, regulatory or legal advice. The Customer is solely responsible to ensure the proper tax, regulatory and legal setup together with specialized third party service providers.
Aktionariat may, subject to the approval of the Customer, reference the Customer on its website or in other promotional material. Aktionariat may remove any such references at any time if, in its reasonable discretion, there are any indications that the Customer has not provided fully accurate, complete and up-to-date information, is in non-compliance with any applicable laws or is otherwise a reputational risk for Aktionariat.
The offer may reference services from third-party service providers such as legal services, valuation services and on-off ramping and identity verification services. The Customer acknowledges and agrees that these services are directly provided by these third parties under separate agreements with the Customer and that Aktionariat is not responsible for any services provided by such third parties. Aktionariat reserves the right to make the delivery of its Services subject to the confirmation of these third party providers that the Customer has properly executed and procured their services and that no red flag was raised by such services providers.
The Customer hereby waives any statutory and/or contractual confidentiality obligations of such service providers with which Customer enters into a direct agreement relating to any information that such third party service provider may deem relevant to share with Aktionariat for the delivery of the Services to and the assessment of the good standing of the Customer.
The Customer must register or create an account to access and use the Service.
The Customer must provide accurate, current, and complete information during registration and keep their information up-to-date.
The Customer is responsible for maintaining the confidentiality and security of their account credentials (including any multisignature or other private keys for access) and may not disclose their credentials and backup phrases to any third party. The Customer is responsible and liable for activities conducted through their account and must immediately notify the Company if there is any suspicion that their credentials have been lost, stolen, or their account is otherwise compromised. The Customer acknowledges and agrees that the Company does not retain any copies or backup access keys to the Smart Contracts and any loss of such access keys may lead to the irreversible loss of access to the Smart Contracts.
If and as permitted by applicable law, the Company may, but has no obligation to (i) ask the Customer to provide identification or other information, (ii) undertake checks designed to help verify Customer’s identity or background and (iii) screen the Customer against third-party databases or other sources and request reports from service providers.
The Customer represents and warrants that all information provided to Aktionariat and/or any potential buyer of its shares is accurate and up-to-date, in particular any information relating to the Company, its valuation and any other information that may impact the valuation of the share tokens. As long as the Company uses the Brokerbot for the public sale of its shares, the Company is required to keep all information up-to-date and inform the public about any material changes.
The Customer acknowledges and agrees that Aktionariat provides the Services only if and as long as the Customer is in good standing. This includes, but is not limited to, a proper legal setup and successful valuation check as confirmed by third party service providers where applicable. In case Aktionariat has any doubts about the good standing, Aktionariat will contact the Company and, unless the Company can convince Aktionariat of the continued good standing, Aktionariat may suspend or terminate its Services with immediate effect. In such case, only the fees incurred up to the suspension or termination are due and payable.
The Customer agrees to use the Services in compliance with the Agreement and all legal and moral obligations applicable in the territory where they are located. The Customer is solely responsible to ensure that all offers, public communications, secondary transactions, and other use of the Technical Services adhere to applicable regulations. Aktionariat does not assume liability for the legal compliance of any of its Technical Services.
The Customer is obliged to cooperate in the performance of this Agreement to the necessary extent free of charge. The Customer is obliged to provide the Company with all necessary information, documents, materials, access, software, data, as well as competent staff, and anything else reasonably required for the provision of Services. Furthermore, the Customer is obliged to inform the Company immediately if errors or faults occur and to support the Company in the analysis and, if necessary, in the elimination of errors and faults to the extent required.
If the provision of Services under this Agreement is delayed due to the Customer's failure to comply with his duty to cooperate or due to other circumstances for which the Customer is responsible, the Customer shall bear the disadvantages and additional costs incurred.
The Customer must immediately inform the Company of all circumstances within its sphere that might endanger or may be relevant to the providing the Services and all misuses or suspicions of misuse of the Services.
The Customer may not:
The Customer agrees it will not, unless with the Company's prior written permission:
The Customer may not sell, sublicense, allow access or make the Services or any part of it otherwise available to third parties.
The Customer must designate a responsible contact person and provide the Company with all contact details, and ensure the availability of the contact person.
The Customer is obliged to check their data and information for viruses or other harmful components before entering it and to use state-of-the-art virus protection programs for this purpose.
Setup fees are payable up front in full. Annual subscriptions fees are payable in advance. Fees for other services are payable within 14 days of the invoice date. Late payments result in an interest rate of 8% p.a. Costs relating to the debt enforcement are borne by the Customer. If not explicitly stated otherwise, all fees are in CHF and excluding VAT and other applicable taxes. Fees for third party services indicated in an offer are payable directly to such third party. All fees are non-refundable.
Any fees that are embedded in the Smart Contract are due to Aktionariat regardless of whether this Agreement remains in effect. Such fees are paid automatically and directly to a wallet address designated by Aktionariat. Aktionariat provides the Customer (or the third party that is the payor) with a respective invoice on request.
Where fees are based on a percentage of funds raised, the mechanism and payment terms agreed in the offer applies.
The Company may change its fees from time to time. Any price changes will apply no earlier than 30 days following notice to the Customer.
In case the Customer does not pay the applicable fees as agreed between the parties and after notice of non-payment, the Company reserves the right to limit or suspend access to the Services. In case of a suspension, the Customer remains liable for all charges and fees incurred during the suspension period.
Any right to set off, retain, deduct, counterclaim and/or withhold any payments due under the Agreement vis-à-vis Aktionariat is hereby expressly waived and excluded.
The Agreement between the parties remains in full force and effect until its termination by either party.
Either party may terminate the Agreement towards the end of any annual subscription period with no less than three (3) months notice in text form.
Termination does not affect any rights, obligations, or liabilities of either party that have accrued before or are intended to stay effective beyond termination.
The Agreement between the parties remains in full force and effect for the duration of the initial 12-months period. The Agreement will automatically renew for subsequent periods of 12 months unless the Agreement is terminated with no less than three (3) months notice towards the end of a subscription period in text form.
Termination does not affect the continued operation of the Smart Contracts or any rights, obligations, or liabilities of either party that have accrued before or are intended to stay effective beyond termination. Aktionariat provides termination and migration assistance on request and subject to payment of reasonable fees.
Either party may terminate the Agreement at any time with immediate effect if the other party is in material breach of the Agreement and fails to remedy this violation within 10 days after a notice. This includes in particular Customer’s failure to pay on time or the start of insolvency procedures against the Customer.
Upon termination, the Customer has a right to delivery of all data relating to the Customer. In case the Company completely discontinues the Services described herein, Company shall provide the Customer with all program code required to continue the discontinued Services independently.
The Company grants the Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to use the Services as required to use the Services in accordance with the Agreement. The Services may contain open-source components. Such components are subject to the respective license (in particular the Smart Contracts which are subject to the " MIT License with Automated License Fee Payments").
Each party retains all rights, titles, and interests to its own intellectual property, including all copyrights, inventions, trademarks, designs, domain names, know-how, trade secrets, data and other intangible property rights ("Intellectual Property Rights"). All Intellectual Property Rights in the Services or any part of it remain vested in the Company.
TThe parties may disclose to each other confidential information ("Confidential Information"). Confidential Information includes, without limitation, any information which is marked as confidential such as organization information, customer databases, functionalities and features of the Services, or information which has otherwise been indicated as being confidential or could reasonably be deemed confidential and attributable to the Customer or the Company.
Publicly available or accessible information, information lawfully and unrestrictedly received or independently developed by the receiving party, is not considered confidential.
Each party undertakes to protect all confidential information that becomes accessible or known based on the Terms. This confidentiality obligation remains in force even after the termination of the Agreement. The Company and the Customer may further define their duties regarding confidentiality in a non-disclosure agreement, in which case the provisions of the non-disclosure agreement prevail.
The Company collects and processes personal data as described in its Privacy Policy available at [Privacy Policy]. The Company protects the collected personal data by means of appropriate technical and organizational measures and in accordance with the data protection legislation applicable in Switzerland and the European Union.
The Customer authorizes the Company to use, process, and store relevant data for the performance of the Agreement and to use anonymized data to improve its services or for analysis purposes.
The parties may further define their duties regarding data protection in a data processing agreement, in which case the provisions of the data processing agreement prevail.
The Company is solely liable to the Customer for damages resulting from the Company’s gross negligence or wilful misconduct.
In all other cases, the Company’s liability under the Agreement is limited to 100% of the amount of the fees paid for the provision of the Services in the 12 months prior to the occurrence of the damaging event.
Neither Party may recover from the other Party, regardless of the legal reason, any amount with respect to loss of profit, data, or goodwill, or any consequential, incidental, indirect, punitive, or special damages in connection with claims arising out of this Agreement or otherwise relating to the Services, whether or not the likelihood of such loss or damage was contemplated.
The Company will not be liable for inaccuracy or incompleteness of the Services, or the incompatibility of the Services with any specific objectives that the Customer is hoping to achieve.
The Customer agrees to indemnify, and hold the Company harmless from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (i) breach of this Agreement or any legal regulation by the Customer, its employees or other persons acting on behalf of the Customer; (ii) any breach of Customer's representations and warranties set forth in the Agreement; or (iii) Customer's violation of the rights of a third party.
The Customer entitles the Company to use the Customer's name, logo, and a brief description of the services provided for advertising purposes on the Company’s website and other marketing or investment materials. Any other use requires the prior consent of the other party.
The Customer acknowledges that the Services are provided "as is" and "as available", and the Company makes no warranties or representations of any kind related to the Services or the information and materials contained thereon. The Company makes the Services available to the Customer and uses reasonable care and skill in the performance of the Services.
The Company does not guarantee that the Services are error-free and will function without any interruption or disruption. The Company may at its own discretion carry out maintenance or improvements to the Services and its infrastructure, and the Customer acknowledges that this may result in temporary delays and interruptions from time to time. Where reasonably possible, the Company will inform the Customer about potential interruptions in advance. Any further warranty is excluded.
Entire Agreement: The Agreement constitutes the entire agreement between the Company and the Customer, and supersedes all prior agreements, between the parties relating to the subject matter of the Agreement.
Notices: Notices must be given in writing, including e-mail, and need to be communicated:
No Assignment: The Customer may not assign any of its rights, obligations, or claims under the Agreement without the previous consent of the Company.
Severability: If any provision of the Agreement (in whole or part) is held to be illegal, invalid or otherwise unenforceable, the other provisions will remain in full force and effect.
Governing Law & Jurisdiction: These Terms, and all claims or causes of action that may be based upon, arise out of or relate to these Terms shall be governed by and construed in accordance with the substantive laws of Switzerland, excluding its conflict of law provisions and, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The ordinary court at the seat of the Company has exclusive jurisdiction for all disputes arising from or in connection with the Terms.
Aktionariat or the Customer opens a corporate account which gives the Customer access to the Corporate Dashboard. Furthermore, Aktionariat offers a portfolio app for android and iOS, which allows shareholders to view their shares, transfer tokenized shares, and maintain their personal information. The Corporate Dashboard allows the customer to keep track of the shareholder registry, record corporate actions, and manage the deployed smart contracts. Note that while Aktionariat offers tools to maintain the shareholder registry and investor information, we do not verify the correctness of data provided by the users.
Aktionariat sets up a multisignature contract for the customer. The purpose of the multisignature contract is to reflect the actual signature authorizations (e.g. of board members or the management) and to protect against loss or theft of an individual board member’s private key.
Technically, the multisignature contract works in such a way that first all the necessary signatures must be obtained and then the signed transaction can be sent by any person to the smart contract for verification and execution.
Aktionariat takes care of the collection of the signatures and the transmission of the transactions. The transaction fees charged by the underlying blockchain are offered by Aktionarist for the time being.
It is the customer’s responsibility to ensure that neither too many keys are lost at once, nor any unauthorized persons gain access to the keys. It is recommended not to allow single signatures (or at most from a securely stored backup wallet) and to choose the setup in a way that the loss of at least one key does not lead to an irreversible loss of control.
For example, there could be one securely stored backup key and three additional authorized signers, each with a dual signature. The customer ensures that the authorized signatories create a backup of their keys and keep it safe. Furthermore, whenever a key is lost or stolen, it should be replaced immediately with a new one.
The base token contract is an ERC-20 token in the Ethereum system or another blockchain of choice supported by Aktionariat. The contract supports "infinite allowances" and ERC-677 style "transferAndCall", as well as other token management functions, such as functionality to change the name of the token. The contract is static and does not allow updates. Additional functions must be added via additional smart contracts built on top of the base contract.
The token contract includes a decentralized recovery function. This allows token holders to transfer their tokens to a new address without the Customer's intervention in case of a lost private key. To prevent abuse of this feature, Aktionariat monitors the blockchain and notifies registered token holders if someone tries to take control of their tokens using the recovery feature.
The SHA token contract is an optional extension of the base token contract and allows the automatic enforcement of the drag-along clause of a typical shareholder agreement. Also, the SHA contract can be used to transfer the deposited base tokens into a new smart contract by majority vote. The SHA contract includes an "automated license fee payment" of 3 Ether charged to the buying part, payable to Aktionariat. This must be paid by the person who wants to make a blockchain-based takeover offer.
Aktionariat provides the Customer with a Brokerbot widget that enables the buying and selling of its own shares on the Customer's website. This Brokerbot is based on a smart contract in the Ethereum network or another blockchain supported by Aktionariat. This smart contract can be used to trade tokens (base token or draggable contract) against Ether (ETH) or Frankencoin (ZCHF). At the same time, the Customer can also accept bank payments and manually initiate the delivery of the corresponding number of tokens to the Blockchain address of the sender of the bank payment. The delivery of tokens acquired via bank payment is supported by corresponding functions in the Corporate Dashboard. Additionally, payment options such as credit card and Twint may apply in the future. The Customer can control the share market, such as setting the share price, the price increment or activating/deactivating individual functions, via the Corporate Dashboard. Numerous functions are available for this purpose in the "Brokerbot" area.
In order to trade shares, the Customer must first allocate the desired number of tokens to the smart contract. Trading in the opposite direction, i.e. the sale of tokens from investors to the Customer, requires the presence of ZCHF in the smart contract. Tokens, as well as ZCHF, can be removed from or added to the Brokerbot by the Customer at any time, using corresponding functions in the Corporate Dashboard. The Brokerbot can be customized by the Customer at any time in terms of its colors to match the corporate design of the Customer's website. The Brokerbot (UI) as well as the underlying smart contract are provided "as is". There is no guarantee that the service will be available at all times and that it will function without errors.
Aktionariat provides the Customer with a Secondaries widget, facilitating and automating some aspects of the trading of existing tokenized shares directly on the Customer’s website. This widget is built on a smart contract deployed on the Ethereum network or another blockchain supported by Aktionariat. The Secondaries feature allows existing shareholders to offer their tokenized shares to other investors, whereas all transactions are executed with the Customer as counterparty and are subject to the Customer’s approval, which can be managed through the Corporate Dashboard.
Payments for secondary transactions can be made via bank transfers or supported cryptocurrencies, with bank transfer payments entirely handled by a third-party provider. The bank transfer payments may also require additional identity verification processes. Additionally, payment options such as credit card and Twint may apply in the future. Processing fees may apply and are deducted directly from the payout amount the seller receives. Although these fees are technically charged by the Customer, they are automatically transferred to Aktionariat’s blockchain address. Invoices for these fees can be provided upon written request. All processing fees are subject to change at Aktionariat’s discretion, with prior notice given to the Customer.
The Secondaries can be customized by the Customer at any time in terms of its colors to match the corporate design of the Customer's website. The Secondaries (UI) as well as the underlying smart contract are provided "as is". There is no guarantee that the service will be available at all times and that it will function without errors.
Aktionariat offers different levels of identification for shareholders and counterparties that trade through the Brokerbot and the Secondaries. In the leanest setup, tokens are freely transferable and the self-declaration of the shareholders is trusted.
If more certainty regarding the identification of shareholders and trading counterparties is desired, we offer a module that conditions interactions with the Brokerbot and the Secondaries on the investor having passed an identification verification procedure. If identity verification is required, investors must enter personal details once before purchasing share tokens, at the time of the first purchase in the Brokerbot. In the scope of Secondaries, if identity verification is required, investors must enter personal details once before purchasing or selling share tokens.
To verify this information, an investor will go through an identification process incl. an ID/passport/driving license check. This procedure is subject to additional costs and Aktionariat is free to outsource this process to a third party. The procedure is typically referred to as “KYC” (“know your customer”), even though it might not formally qualify as “KYC” as defined under applicable AML laws. It is the sole responsibility of the Customer to find out what regulatory requirements they are subject to and how they are to be fulfilled.
Identity verification is done at the web-layer and only for direct shares sales from the company. Transfers between third parties are not subject to id verification. Someone directly interacting with the smart contracts might be able to bypass id verification unless it is strictly enforced through an on-chain allowlisting, which we also optionally offer.
Aktionariat offers an optional allowlisting. An allowlisting requires the Customer to approve every single address before it can receive tokens. It comes with considerable administrative overhead and additional transaction costs.
Aktionariat provides the Customer with a standardized investor relations page with a number of widgets that are embedded on the Customer's website. These include mandatory widgets for displaying current information about the tokens in circulation or a widget for registering shareholders who wish to use a different portfolio app than the one provided by Aktionariat or a KPI chart widget.
