Terms and conditions for Taurus-TOKENIZE
These Terms and Conditions between Taurus SA (“Taurus”) and the Client (hereafter the “Agreement") govern the execution and receipt of the Taurus-TOKENIZE service (the “Service”) provided by Taurus to the Client.
Terms used in this Agreement with their initial letters capitalised have the meanings ascribed to them in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:
“Agreement” means these Terms and Conditions and all attachments, including any Order Forms signed by the Parties.
“Client” means the Party using the Service provided by Taurus.
“CMTA” means the Capital Markets and Technology Association.
“CMTAT” means the CMTA Token Smart Contract Template developed by the CMTA.
“Confidential Information” means all non-public information disclosed by one Party to the other in connection with this Agreement that the disclosing Party marks as confidential or which the receiving Party should reasonably know to be the confidential information of the other Party.
“Digital Assets (DA)” means any type of financial assets, whether natively digital or digitised, issued through the use of DLT such as payment tokens (incl. cryptocurrencies, stable coins), utility tokens and asset/investment tokens (incl. tokenized shares, tokenized debt).
“Distributed Ledger (DL)” means a database that is consensually shared and synchronized according to a protocol by nodes participating to a peer-to-peer decentralized network. It allows transactions to have public “witnesses” who can access the recordings shared across that network and can each store an identical copy of it. Any changes or additions made to the ledger are reflected and copied to all nodes. One form of distributed ledger design is the blockchain, which can be either public, permissioned or private.
“Distributed Ledger Technology (DLT)” means technology recording and sharing data across multiple data stores (or ledgers). This technology allows for transactions and data to be recorded, shared, and synchronized across a distributed network of different network participants.
“FINMA” means the Swiss Financial Market Supervisory Authority.
“Order Form” means the service order form signed by the Parties.
“Party” means the Client or Taurus, as applicable, and “Parties” means the Client and Taurus collectively.
“Service” means Taurus’ provision of tokenization technology services.
“Smart Contract” means a software code representing a digital token executed on a distributed peer-to-peer network.
“Token” or “Digital Token” means Digital Asset which may have various features, depending on the DLT on which it was issued and the terms of the issuance. The primary types of Tokens, as per the Swiss Financial Markets Supervisory Authority FINMA’s classification: (a) Payment Tokens are generally synonymous with Cryptocurrencies, the sole or primary purpose and function of which is to serve as means of payment, so that Payment Tokens have no other material functions or links to development projects, (b) Utility Tokens are Digital Assets that are intended to provide digital access to an application or service, (c) Asset Tokens represent assets such as participations in real physical underlyings, companies, or earnings streams, or an entitlement to dividends or interest payments. In terms of their economic function, Asset Tokens are analogous to equities, bonds, derivatives or other investment instrument. In many instances, Tokens will be a hybrid combination of the above primary types, depending on their features.
“Ledger-based securities” means securities tokenized pursuant to art. 973d of the Swiss Code of Obligations.
“Tokenization” means the parametrization and deployment of a Smart Contract representing Tokens on a Distributed Ledger.
3. Description of the service
The Service is a technology service where Taurus deploys a Smart Contract representing Tokens on a Distributed Ledger on behalf of the Client. The Client has selected a Smart Contract to deploy, further to its own due diligence, and hereby appoints Taurus as tokenization technology service provider to perform the services set forth on Exhibit A, and Taurus hereby accepts such appointment.
In order to provide the Service, Taurus will use its own proprietary information technology solutions (e.g., Taurus-CAPITAL and Taurus-PROTECT). The Client will not have any direct access to those solutions. The technical issuance of the Smart Contract will be performed by Taurus, then the power to administer the Smart Contract will be transfered to the Client or an agent of the Client, provided that this is applicable in the case at hand and that the selected Smart Contract supports this feature.
Taurus shall perform only those duties and obligations that are specifically set forth in this Agreement, and no implied duties and obligations shall be read into this Agreement against Taurus. Taurus does not act as legal advisor. In the case of tokenized securities/ledger-based securities, the Client understands that the deployed Smart Contract and its associated Tokens are not valid from a legal standpoint, as long as all the necessary legal and corporate works and documents have duly been executed by the Client with the support of its legal and tax advisor (for example in accordance with the Tokenization Standard prepared by the CMTA).
For the avoidance of doubt, the Client understands and acknowledges that this Service is a non-custodial technology service. Moreover, with this Service, Taurus does not offer “issuance” services within the meaning of the Swiss Financial Services Act or any equivalent jurisdictions. However, if the Client is a professional or institutional investor, it can elect to put the access key administering the Smart Contract in safe custody with Taurus. In such a case, the Client will need to open an account with Taurus as securities firm according to the Taurus General terms and conditions (GTC), and in particular the Taurus custody regulations. Taurus has implemented appropriate security measures to safeguard the relevant access key and it will monitor the functioning of the selected distributed ledger according to the Taurus-EXPLORER terms and conditions. It does not preclude that, in any cases, the Client shall keep itself informed of the development of the distributed ledger chosen for the Token and that it shall periodically monitor the transactions involving the Tokens and investigate any anomalies that may be detected.
Taurus will prepare and deliver to the Client the Deliverables specified in Exhibit A.
5. Term; Termination
a. Term; Termination upon written notice
The Service starts on the start date indicated on the Order Form and ends after the successfuly delivery of the Deliverables specified in Exihibit A or at the latest six (6) months after the start date.
Either Party may terminate this Agreement at any time by giving the other Party at least 30 calendar days prior written notice.
b. Immediate termination or suspension
Taurus may, at any time and without delivery of prior written notice to the Client, terminate or suspend this Agreement, in whole or in part, immediately if Taurus learns, or believes in its sole judgment, that (i) the Service has been or may be used by the Client for any illegal or unlawful purpose or in a manner that breaches any applicable law or regulation; (ii) the Client is acting or has acted in a manner that threatens or may threaten the fair and orderly use of the Service.
6. Fees; Payment
The Client agrees to pay Taurus for use of the Service all fees set forth on the Order Form. All fees are due and payable in Swiss Francs within thirty (30) calendar days after the invoice date. All prices are adjusted with an annual inflation rate equivalent to the largest between 2.5% p.a. and the Swiss consumer price index.
The Client will pay on top any Value Added Taxes (VAT), any tax in the nature of a withholding tax and any duties payable in respect of the fees due hereunder or otherwise arising in respect of this Agreement.
7. Confidentiality; Use of data
All information provided under this Agreement by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) regarding the Disclosing Party’s business and operations, including without limitation the terms of this Agreement, shall be treated as confidential (“Confidential Information”). All confidential information provided under this Agreement by Disclosing Party shall be used, including disclosure to third parties, by the Receiving Party or its agents or service providers, solely for the purpose of performing or receiving the Service and discharging the Receiving Party’s other obligations under this Agreement or managing the business of the Receiving Party and its affiliates, including financial and operational management and reporting, risk management, legal and regulatory compliance and client service management. However, information is not confidential to the extent (i) it is or becomes publicly available other than through a breach of this Agreement, (ii) it is independently derived by the Receiving Party without the use of any information provided by the Disclosing Party in connection with this Agreement, (iii) it is disclosed to comply with any legal or regulatory proceeding, investigation, audit, examination, subpoena, civil investigative demand or other similar process, (iv) it is disclosed as required by operation of law or regulation, or (v) where the Party seeking to disclose has received the prior written consent of the Party providing the information, which consent shall not be unreasonably withheld.
The Client understands and agrees that all the data configured in a Smart Contract will be public, in the case where the Smart Contract is deployed on a public distributed ledger.
The Client authorizes Taurus to disclose to the public that it is a Taurus’ client.
b. Use of data
Taurus may collect and store information regarding the Client and share it with its affiliates, agents, auditors, regulators and service providers in order to: (i) provide the Service; and (ii) manage Taurus’ business, including, but not limited to client on-boarding, financial and operational management and reporting, risk management, audit, legal and regulatory compliance and client service management. Taurus shall require any affiliate, agent or service provider to which it has disclosed Data pursuant to this section to comply with the Agreement’s confidentiality and Swiss data-protection obligations.
8. Mutual representation and warranties
Each Party represents and warrants to the other Party: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it was formed or incorporated; (b) it has full power and authority to enter into and perform its obligations hereunder; and (c) this Agreement has been duly authorized, executed and delivered on its behalf by persons empowered to do so.
Taurus represents and warrants to the Client that: (a) it is a technology service provider recognized by the CMTA, (b) it will deploy the Tokens on the selected distributed ledger according to good practices.
The Client represents and warrants to Taurus that: (a) the Tokens are/will be duly and validly issued according to applicable laws, corporate status and regulations, (b) it will not do business with, nor accept any shareholders, token holders nor investors in a sanctioned target list or coming from any sanctioned countries, (c) in case of tokenized securities, it understands the legal and tax implications (both for the issuer itself and for its shareholders/bondholders/token holders) of having its shares/securities tokenized, (d) in case of tokenized securities, it understands and accepts all the Risks involved in tokenized securities.
9. Compliance with laws
The Client declares to comply with applicable statutory law and any other applicable legal provisions and regulations (including tax law, securities law, anti-money laundering law and data protection law) when using the Service. The Client declares that he/she is authorized to use the Services offered by Taurus in his/her country of domicile.
The Client shall bear any loss or damage, and shall indemnify and hold harmless Taurus for any loss or damage incurred by it, as a result of or in connection with any non-compliance by the Client with any obligations pursuant to applicable laws or regulations, including any non-compliance of beneficial owner(s) different from the Client or by its authorised representatives or any other third parties acting on its behalf.
10. Limited warranty of Taurus
TAURUS REPRESENTS AND WARRANTS TO THE CLIENT THAT IT SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE WITHOUT INTRODUCING ERRORS OR OTHERWISE CORRUPTING ANY DATA SUBMITTED BY THE CLIENT. THE CLIENT ACKNOWLEDGES AND AGREES THAT EXCEPT AS SET FORTH IN THE PREVIOUS SENTENCE, THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE BLOCKCHAIN DATA AND THE INFORMATION CONTAINED THEREIN, ARE PROVIDED ON AN “AS IS" AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TAURUS MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICE WILL COMPLY WITH ANY OBLIGATIONS THAT CLIENT MAY HAVE UNDER ANY APPLICABLE LAWS, RULES, REGULATIONS, OR SIMILAR OBLIGATIONS AND TAURUS SHALL NOT HAVE ANY LIABILITY OR BE RESPONSIBLE FOR ANY DAMAGES, LIABILITIES, LOSSES, COSTS, OUT-OF-POCKET COSTS OR EXPENSES (INCLUDING ATTORNEYS’ FEES), WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE CLIENT’S COMPLIANCE WITH ANY OBLIGATIONS UNDER ANY APPLICABLE LAWS, RULES, REGULATIONS, OR SIMILAR OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, TAURUS DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICE WILL BE ERROR FREE, UNINTERRUPTED OR AVAILABLE AT ALL TIMES; (II) THAT THE SERVICE WILL REMAIN COMPATIBLE WITH, OR OPERATE WITHOUT INTERRUPTION ON, ANY EQUIPMENT PROVIDED BY CLIENT. (III) CLIENT ACKNOWLEDGES AND AGREES THAT TECHNICAL PROBLEMS MAY PREVENT TAURUS FROM PROVIDING ALL OR ANY PART OF THE SERVICE AND (IV) EXCEPT AS SET FORTH IN THE FIRST SENTENCE OF THIS SECTION, TAURUS MAKES NO WARRANTIES AND THE CLIENT RECEIVES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SERVICE AND TAURUS HEREBY SPECIFICALLY DISCLAIMS, OVERRIDES AND EXCLUDES. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, CONDITIONS, OTHER CONTRACTUAL TERMS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY TAURUS OR ANY OF ITS AGENTS OR AFFILIATES OR OTHERWISE (INCLUDING BUT NOT LIMITED TO, AS TO TITLE, SATISFACTORY QUALITY, ACCURACY, COMPLETENESS, UNINTERRUPTED USE, NONINFRINGEMENT, TIMELINESS, TRUTHFULNESS, SEQUENCE AND ANY IMPLIED WARRANTIES, CONDITIONS AND OTHER CONTRACTUAL TERMS ARISING FROM TRANSACTION USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE).
11. Limitations of liability
The Client acknowledges and agrees that Taurus shall not have any liability in or be responsible for any damages, liabilities, losses, costs, out of pocket costs or expenses (including attorneys’ fees), whether direct, indirect, special, incidental, consequential, punitive or otherwise of any kind (including, without limitation, any loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation or loss of, damage to or corruption of data), in each case arising under or related to claims of breach of contract, tort, including negligence, strict liability, negligent misrepresentation, restitution, breach of statutory duty or any other cause of action whatsoever with respect to this Agreement, the Service, or any other matters or services contemplated hereby. Notwithstanding anything to the contrary herein and without limiting the foregoing, the Client acknowledges and agrees, that Taurus shall not be liable in any manner to the Client for the failure of a Smart Contract through the Service to perform its obligations. As a consequence, Taurus shall not be held liable for: any loss or theft of digital assets including, but not limited to private keys; transaction errors done by the Client; late execution or settlement of any transaction whatsoever, in particular if the distributed ledger/blockchain is down or congested; the incorrect booking of transactions or the presence of an error in ordering the booking of transactions in a distributed ledger/blockchain; any security breach or weakness, bug, of any kind for a digital asset; any security breach or weakness, bug, of any kind in the technology stacks used including but not limited to programming languages and open-source libraries; any configuration or installation errors by the Client.
12. Limitation of liability and indemnification for smart contracts
Taurus shall not be held liable for any and all damages caused by blockchains/distributed ledger protocols, smart contracts and for any cause including, but not limited to hacks, forks, network congestions, bugs, actions whatsoever of any kinds in any jurisdictions, actions for breach of contract or tort, provided that Taurus did not act with intent or gross negligence. In particular, Taurus shall not be liable for any indirect, incidental, special, exemplary or consequential damages, including for loss of profits, goodwill or data loss, arising out of all blockchain protocols underlying the Service. In particular, Taurus shall not be held liable for any bugs or security issues in relation to the Smart Contract selected by the Client.
The Client will indemnify, defend and hold harmless Taurus from and against any and all damages, liabilities, losses, costs and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) to the extent arising out of any claim, action or allegation by any third party that the Smart Contract selected, used and/or developed by the Client violates the copyright, patent or other intellectual property rights of such third party.
13. Limitation of liability and indemnification for ledger-based securities
The rules that govern ledger-based securities in Switzerland were adopted in 2020 and became effective in 2021. As of the date hereof, there are no court precedents or other official guidance as to how these rules are to be applied or interpreted. There is no guarantee that the validity or due issuance of shares for which an authorization has been obtained as ledger-based securities will be upheld by courts. Likewise, there is no guarantee that the CMTAT, or any variation of the relevant computer code approved by the CMTA, is free from coding errors or vulnerabilities or that it is fit for the purpose of creating ledger-based securities in accordance with the Share Tokenization Standard or otherwise. In particular, the CMTAT is released under Mozilla Public License 2.0. The computer code that underlies the CMTAT is provided under that license onan “as is” basis, without warranty of any kind that the computer code is free of defects, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the quality and performance of the CMTAT, or any variation of the relevant computer code approved by the CMTA, is with its user.
Under no circumstances and under no legal theory, whether tort, contract, or otherwise, will Taurus, members of governing bodies, employees, contractors or affiliates be liable to the Client or any third parties in relation to the matters set out or contemplated. The Client will, irrespective of any fault, indemnify and hold Taurus, its members, members of governing bodies, employees, contractors and affiliates harmless from and against any and all losses, claims, demands, damages (whether direct, indirect, special, incidental, or consequential), actions, liabilities, costs and expenses, including court costs and reasonable attorney’s fees, that any of these persons may incur or suffer in connection with the deployment of the Smart Contract or another Smart Contract by the Client or by any third party, whether or not such use is in compliance with these terms and conditions.
Any notice required or permitted to be given in connection with this Agreement will be deemed to be delivered if it is personally delivered or sent by electronic mail (email), certified or registered mail or overnight courier, postage prepaid with return receipt requested, and addressed to the relevant Party thereto at the address specified on the signature pages hereto or at such other address as such Party may specify to the other Party in writing from time to time.
Except as otherwise provided below, neither Party may assign, transfer or otherwise dispose of this Agreement or any rights or obligations hereunder without the prior written consent of the other Party. Notwithstanding the foregoing, (a) Taurus may assign or transfer this Agreement or any rights or obligations hereunder to any affiliate of Taurus without the prior written consent of the Client and (b) either Party shall have the right to assign or transfer this Agreement in connection with the merger or acquisition of such Party or the sale of all or substantially all of its assets, without such consent. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.
16. Governing law; Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of Switzerland. The parties agree to submit to the exclusive jurisdiction of the state and federal courts located in Geneva, Switzerland, for the adjudication of any case or controversy arising under this Agreement and the parties hereby waive their right to a trial by jury in any such litigation.
Taurus is entitled to amend and modify this Agreement at any time. The Client will be notified of any amendments by appropriate means (i.e. via e-mails or via publication on the Taurus legal website). The amendments shall be deemed to have been accepted by the Client unless an objection is raised in writing within 30 days of notification, but in any event when the Service is used. In the event of an objection, the Client shall be free to terminate this Agreement with 30 days notice.
The version of this Agreement currently in force, as amended from time to time, can be accessed on the Taurus legal website at legal.taurushq.com.
18. Force majeure
Any delay in or failure of performance by either Party under this Agreement will not be considered a breach and will be excused to the extent such delay in or failure is caused by any event beyond the reasonable control of such Party, including, but not limited to, acts of God, acts of civil or military authorities, strikes or other labor disputes, fires, interruptions in telecommunications or Internet or network service providers, acts or omissions of a third party hardware or software supplier or a third party communications provider, power outages and governmental restrictions.
If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule of law or otherwise, the remainder of this Agreement will not be affected and to that extent the provisions of this Agreement will be deemed to be severable.
20. Entire agreement
This Agreement, together with all related Order Forms, exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and supersedes all prior agreements, understandings, representations, and warranties, both written and oral, with respect to such subject matter.
21. No waiver
No failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further or future exercise thereof or the exercise of any other right or remedy.
Exhibit A – Service description and Deliverables
The Client has selected a Smart Contract that it wishes to deploy on a selected Distributed Ledger. Taurus will provide the following tokenization technology services to the Client:
- Configure and deploy a Smart Contract on the selected Distributed Ledger on behalf of the Client and in accordance with the instructions defined in the Order Form
- Mint/issue the correct number of Digital Tokens
- Allocate or cause to be allocated on the ledger address(es) that were provided by the Client the number of Digital Tokens instructed by the Client (if applicable)
- Transfer the access key administering the Smart Contract under the control of the Client or an agent of the Client (provided that the Smart Contract supports this feature and if applicable).
As part of the Service, Taurus will provide the following deliverables (the “Deliverables”) to the Client:
- Deployed Smart Contract in accordance with the Client’s instructions (incl. the Smart Contract distributed ledger address)
- In case of CMTA certification mark, a deployment confirmation issued by Taurus SA, in its capacity as CMTA-approved technology service provider.