Before using the services User shall carefully read these Terms and Conditions of Use ("Terms") of Upvest GmbH / Upvest LLC, Vaduz, www.Upvest.co ("Website"), any applications associated therewith, including Upvest Wallet ("Service", “Wallet”), which are operated and maintained by Upvest GmbH and its affiliates ("Upvest Wallet", "we", "us" or "our").These Terms apply to all visitors, users and others ("You", "User") who access or use the Service on the following terms and conditions.
1. GENERAL CONDITIONS
1.1. In order to be able to use our Services You warrant and represent that you:
a) are at least 18 years old or of other legal age, according to your relevant jurisdiction;b) have sufficient experience, knowledge and understanding of the working principles of our Wallet, fully understand the associated risks access and use the Wallet at your own risk use our Wallet with your own e-mail and for your own benefit and do not act on behalf and/or to the interest of any other person;
b) have sufficient experience, knowledge and understanding of the working principles of our Wallet, fully understand the associated risks access and use the Wallet at your own risk use our Wallet with your own e-mail and for your own benefit and do not act on behalf and/or to the interest of any other person;
c) have full power and authority to enter into this legal relationship and by doing so will not violate any other legal relationships;
d) guarantee that your crypto assets, which you transfer to the Wallet are not encumbered, not in contention, or under seizure, and that neither exist any rights of third parties to your crypto assets. For the purposes hereof “Crypto assets” shall mean such type of assets which can only and exclusively be transmitted by means of blockchain technology, including but not limited to digital coins and digital tokens and any other type of digital mediums of exchange, such as BTC, ETH, etc., to the full and absolute exempt of the securities of any kind;e) will not use our Services or will immediately cease using those if any applicable law in your country prohibits or will prohibit you at any time from doing so;
f) will not use our Services or will immediately cease using those if you are a resident or become a resident at any time of the state or region (in accordance with such state or region definition of residency), where the crypto assets Transactions you are going to execute are prohibited or require special approval, permit and/or authorization of any kind, which Upvest and/or You have not obtained in this state or region; ANDg) have not previously been suspended or removed from our Services.
1.2. You further represent, agree and warrant, that you will not violate any law, contract, third-party right or commit a tort by accessing or using the Wallet, and that you are solely responsible for your actions and/or inactions while using our Wallet. Without prejudice to the foregoing, you represent, agree and warrant, that YOU WILL NOT:
a) Use the Wallet to pay for, support or otherwise engage in any illegal gambling activities; money-laundering; fraud; or terrorist activities; or any other illegal activities;
b) Use or attempt to use another User account without authorization, given knowingly and voluntarily;c) Provide false, inaccurate, or misleading information;
d) Use the Wallet in any manner that could interfere with, disrupt, negatively affect or inhibit other users from using our Wallet with full functionality, or that could damage, disable, overburden or impair the functioning of the Wallet in any manner;
e) Use any robot, spider, crawler, scraper or other automated means or interface not provided by Us to access the Wallet or to extract data;
f) Attempt to circumvent any content filtering techniques We employ, or attempt to access any service or area of our Wallet that you are not authorized to access;
g) Develop any third-party applications that interact with our Wallet without our prior written consent; AND
h) Encourage or induce any third party to engage in any
1.3. YOU INDEMNIFY AND HOLD UPVEST GMBH HARMLESS AGAINST ANY CLAIMS, DEMANDS AND DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA OR LOSS OF ASSETS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ORIGINATED FROM OR IN ANY WAY CONNECTED WITH INVALIDITY OR BREACH OF ANY OF THE WARRANTIES, REPRESENTATIONS AND COVENANTS OF THIS SECTION AND THE ENTIRE TERMS.
YOU UNDERSTAND THAT UPVEST DOES NOT HAVE ACCESS TO YOUR FUNDS, IN THE ABSENCE OF YOUR PASSWORD. WHEN A WALLET IS INITIALLY GENERATED, IT IS IMMEDIATELY ENCRYPTED WITH THE USER’S PASSWORD, AND PLACED ON KMS (KEY MANAGEMENT SYSTEM). AT NO POINT DOES UPVEST STORE THE USER’S PASSWORD, SO EVEN IF WE WANTED TO, WE CANNOT GAIN ACCESS TO THE UNENCRYPTED PRIVATE KEY.
1.4. It is your responsibility to keep your email address on file with Upvest up to date so that Upvest can communicate with you electronically. You understand and agree that you forfeit the right to plead ignorance if you do not receive an electronic Communication sent to you by Upvest, because your email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications.
2. LIMITATIONS OF SUPPORTED CRYPTO ASSETS
2.1. Our Wallet allows Users to remit crypto assets to Upvest Account from external third- party service and vice versa except to certain limitations, which may be updated from time to time.
YOU INDEMNIFY AND HOLD UPVEST GMBH HARMLESS AGAINST ANY CLAIMS, DEMANDS AND DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ORIGINATED FROM OR IN ANY WAY CONNECTED WITH YOUR DEPOSIT/WITHDRAWAL TRANSACTIONS REQUESTS IN VIOLATON OF SETTLED LIMITATIONS.
For the purposes thereof the "Third-party service" shall mean any platform or network in which crypto assets belong to you or where you are the beneficial owner of crypto assets; and this platform is maintained by a third party outside of the Services; including, but not limited to third-party accounts.
2.2. Upvest Wallet ETH addresses are ERC20 compliant, however, not all ERC20 tokens are supported in the app. Transactions of currently unlisted tokens to Upvest Wallet addresses may appear on the blockchain, however, they will not be available on your balance in the Service until they are added to our list.
Upvest wallet represents that it never intended or desired to use tokens and/or coins that can be classified as "security" by the FMA and/or other competent national authorities and endeavors all possible measures to be sure that crypto assets that you can use in our Wallet cannot be classified as "security". For the avoidance of any doubt the provisions of this clause shall not constitute or deemed to be construed to constitute any warranty and/or investment, financial, legal or any other professional advice, that any crypto asset on our Wallet is not a security. The responsibility for the fact that the instrument cannot be treated as “security” lies with the issuer of token and/or coin. If there is any risk or speculations that token and/or coin can be treated as “security”, the Wallet reserves the right to prohibit such tokens and/or coins in our Wallet and discontinue any transactions with those at its sole discretion.
3. CONSENTS AND AUTHORIZATIONS
3.1. In order to protect your crypto assets from unauthorized access, use, or spending we use a variety of physical and technical measures designed to protect our systems and your crypto assets. To be more definite we store encrypted crypto wallets.
3.2. You agree and consent to receive electronically via your verification e-mail all Communications, that Upvest may be willing to communicate to you in connection with your Upvest Wallet Account and/or use of the Upvest Wallet Services. For the purposes hereof “Communications” shall mean all and any communication, agreement, document, receipt, notice and disclosure, which may be from time to time addressed to User by Upvest. You may withdraw your consent to receive electronic Communications by sending a withdrawal notice to support. If this is a case you waive your right to plead ignorance.
4.1. When creating an Upvest Wallet account, the Wallet generates and stores a private and public cryptographic key pair that you can use to make transactions with crypto assets. The public key can be shared to complete transactions. The private key uniquely matches the wallet address and is only used by the Wallet to authorize transactions to and from the Wallet. As Wallet is a hosted wallet, it’s not feasible to provide the private keys to individual wallet addresses.
4.2. The balance of crypto assets displayed by the Wallet in the user interface of your application is accurate and the balance represents the current amount of crypto assets you are able to transfer or exchange.
4.3 We reserve the right to limit the scope of our Services to users. Limitation of our Services may depend on the established security level of the account, for instance and the following criteria may be considered: verification of e-mail, social network authorization etc.Please, note that restrictions, mentioned herein are for illustrative purpose only. We reserve the right to limit the scope of our Services at our sole discretion and without prior notification to you.
4.4. In case of Your breach of the Terms, or any other event as We may deem necessary, including without limitation the Force Majeure Event; maintenance work; inability of the third service provider to provide you services; your request of account cancellation; market disruption; inability to conform our requirements; lack of verification pending litigation, investigation, or government proceeding related to You or your wallet account; and/or in case we perceive a heightened risk of legal or regulatory non-compliance associated with your account activity We may, in our sole discretion and without liability to you, with or without prior notice:
a) suspend your access to all or a portion of our Services; or
b) delete or deactivate your Upvest Account and all related information and files in such account.
5.1. The following Transactions are available to be performed by User via Upvest Wallet with his crypto assets:
a) “Deposit”, a remittance of crypto assets to Upvest Wallet Account from external third- party service.
b) "Transfer", a remittance of the crypto asset, owned by one Upvest Wallet Account User, to another Upvest Wallet Account User. The Transfer is executed solely and exclusively within the Wallet and with crypto assets deposited to respective Users’ Upvest Wallet Accounts.
c) “Exchange”/”Smart Pay Out” / “Smart Pay In”, an exchange of the crypto asset of one type to the crypto asset of another type at the terms and conditions set forth by exchanging parties, which is executed via a Third-party service. The Exchange takes place between users in blockchain network. Upvest cannot and does not confirm, cancel, or reverse crypto assets Exchanges, but can only confirm the blockchain network’s completion of the Exchange. When you initiate an Exchange request via the Wallet, you submit your exchange request to the blockchain network in accordance with the directions you provide via the Wallet. In case of Exchange Upvest uses third-party service provider. When you exchange crypto assets you acknowledge and agree that the Exchange will be processed through the third-party exchange service with additional fees applicable to such Transaction.
d) “Withdrawal”, a remittance of crypto assets from Upvest Wallet Account to external third-party service.
5.2. Upvest does not perform or support any activities associated with (crypto) exchanges.
5.3. Upvest does not perform and support the cross-chain transactions, where one crypto asset is deposited to another coin's address on another network though they may have technological similarities of any kind. While Upvest will endeavor to recover the cross- chain transaction, it gives no warranty on the successful recovery or any terms related thereto.
5.4. Crypto assets are not refundable.
5.5. Transactions failed due to any technical issue, extreme network conditions or any other cause on the third party service’s side will not be automatically rolled back to your originating address by technical and security reasons.YOUR WALLET WILL NOT BE REFUNDED IN SUCH CASES.
6. SPECIAL CONDITIONS
6.1. We will endeavor to assist you in return of your assets in case of missent Transaction. However, we are not able to control or affect the performance of such return. We may not guarantee the recovery of a crypto asset to your Upvest Wallet account.
6.2. You may be charged fees by the third-party service you use to remit your Upvest Wallet Account. Upvest is not responsible for any third-party services' fees. You are solely responsible for your use of the third-party service, and you agree to comply with all terms and conditions applicable to any third-party service.
6.3. It is the user's responsibility to decide whether any taxes apply to the Transactions you perform through the Upvest Services, and to withhold, report and remit the relevant funds to the appropriate tax authorities. You agree that the Upvest wallet is not responsible for determining whether any taxes apply to your transfers or for collecting, reporting, withholding or remitting any taxes arising from any Transactions and does not act as your tax agent.
7.1. YOU AGREE TO INDEMNIFY AND HOLD UPVEST GMBH HARMLESS AGAINST ANY CLAIMS, DEMANDS AND DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF ASSETS, INCLUDING TOTAL ONE, WHETHER IN AN ACTION, IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ORIGINATED FROM OR IN ANY WAY CONNECTED WITH:
a) your use of Upvest Wallet, including, but not limited to those arising from your personal errors and misbehavior such as forgotten passwords, incorrectly constructed transactions, loss of your accesses etc.
b) any risks associated with utilizing any crypto assets blockchain network, including, but not limited to the risk of unknown vulnerabilities in or unanticipated changes to any network protocol;
c) any communication failures, disruptions, errors, distortions or delays you may experience when using the Wallet, howsoever caused;
d) software failures, protocol changes by third party providers, internet outages, Force Majeure event or other disasters including third party DDOS attacks, scheduled or unscheduled maintenance, or other causes either within or outside our control, any malfunction, unintended function, unexpected functioning of or attack on the Blockchain protocol that may cause the Wallet to malfunction or function in an unexpected or unintended manner. For the purposes hereof "Force Majeure Event" shall be understood as any event beyond Upvest’s reasonable control, including but not limited to the flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, suspension of bank accounts of any kind, extraordinary leaps of the course of crypto asset, communications, network or power failure, or equipment or software malfunction or any other cause beyond Upvest’s reasonable control;
e) technical, typographical, or photographic errors in information and materials appearing on the Website or related applications;
7.2. The Service developed by us is provided "as is". Upvest makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Upvest does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials or otherwise relating to such materials or on any websites or apps linked to Upvest.
8. Governing Law
8.1. These Terms and any dispute between the parties arising therefrom will be governed by the laws of Liechtenstein, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
8.2. The place of jurisdiction is Vaduz, Liechtenstein. However, both parties to the agreement reserve the right to file a complaint with any other competent court.
9. SEVERABILITY CLAUSE
Should one or several provisions of these Terms be or become invalid or prove to be unenforceable, this shall not affect the validity of the other provisions.
In this case, the contracting Parties shall replace the invalid or unenforceable provision by another provision that comes closest to the economically intended purpose. The same applies in the case of a regulatory gap
10.1. In the event of any conflict between these Terms and any other agreement you may have with Upvest, the terms of that other agreement will prevail only if these Terms are specifically identified and declared to be overridden by such other agreement.
10.2. We reserve the right to alter, amend or modify these Terms from time to time, in our sole discretion.