General Terms and Conditions of Use
(1) General Terms and Conditions of Use for the RAIZERS platform dated April 1st, 2021
Click here to consult the GTCU last version (April 2021).
(A) The purpose of the RAIZERS platform is to bring together companies wishing to raise funds to finance their professional activity on the one hand and, on the other hand, the individuals or legal entities wishing to make an investment by subscription of capital securities and/or bonds.
(B) The RAIZERS Platform is the exclusive property of RAIZERS SA, with share capital of CHF 208.099 whose registered office is located at at Alice-et-William-Favre 34, 1207 Geneva, Suisse, registered in the Commercial Register of the Canton of Geneva under the number CHE-405.531.212.
(C) Raizers SAS, with a capital of 900,000 euros, whose registered office is located at 130 rue de Courcelles 75017 Paris, registered with the Paris Trade and Companies Register under number 804 419 901 is the sole co-operator, with RAIZERS SA, of the Raizers Platform.
1. DEFINITIONS AND INTERPRETATION
For the purposes of this agreement, capitalized terms shall have the meanings set forth herein, unless the context otherwise requires:
Premature Termination of Collection refers to any termination of a CFO at the initiative of the Funded Company concerned before the end of the Collection that is not imposed by a legal or regulatory standard.
SCO: Swiss Code of Obligations of 30 March 1911.
Collection: operation to raise the funds needed to finance a Funded Company through the Raizers Platform.
Coupon: refers to the interest paid by the Funded Company to the Bondholders.
Documentation: refers, for any Funded Company, to all the communication media and documents transmitted to the User before the Subscription and presenting the CFO. It takes the form, in particular, of the Regulatory Information Document including the interim information form, the issue prospectus or the bond contract, if applicable.
Regulatory Information Document: refers to the information document on the CFO in accordance with the model prescribed in the regulatory information document set out in Appendix 1 of Instruction 2014-10 of the Autorité des marchés financiers or French Financial Markets Authority.
Personal Data: refers to the personal information that the User has recorded when creating the Personal Account, when using the services, as well as the personal information collected automatically as part of the use of services or consultation of the RAIZERS Platform. For Swiss residents and services provided in Switzerland, the concept of Personal Data includes data related to a legal entity.
Personal Account: refers to the account (including the username and password chosen by the User) and the personal space reserved for the User after registration on the RAIZERS Platform containing up-to-date information on the User and allowing access to the presentation of the Financed Companies preselected by the Raizers Platform with a view to a possible Subscription by the User.
Funding: refers to the amount paid by a Subscriber under a CFO.
Force Majeure: refers to all fires, floods, natural elements or other natural disasters, any declarations or progressions of hostilities, wars, riots or public disorder, acts or omissions of the government or competent authorities, breakdowns, blockages, failures or variations in telecommunications facilities or networks or any other causes similar to the aforementioned causes or not beyond the reasonable control of a party to a contract and resulting in any failure or delay in the performance of its obligations under the contract.
Forum: refers to the interactive forum of the RAIZERS Platform dedicated to the exchange of information between the Users and each Funded Company or the "Comments" space.
FSMA : refers to The Financial Services Market Authority sitting at Rue du Congrès 12-14, 1000 Bruxelles
Internet user: refers to any person who consults the public pages of the RAIZERS Platform.
Crowdfunding Offer or CFO: refers to the crowdfunding offer presented by a Funded Company.
Information Note: refers to the information document and the information sheet sent to the FSMA helping to ensure adequate information for retail investors by describing, in a succinct and comparable manner, the main characteristics of the Securities offered, in a manner these Investors are reasonably able to understand the nature of the Securities, as well as the risks associated with them, in accordance with the Belgian Prospectus Law imposing certain information obligations when marketing financial products to retail customers. The Information Note is not reviewed a priori by the FSMA. However, such note may be reviewed a posteriori by the same authority.
Institutional partners: refers to the escrow bank and MangoPay SA, a Luxembourg limited company incorporated under the laws of Luxembourg under the number B173459 (or any other payment service provider or issuer of electronic money in charge of carrying out the subscription payment transactions with which Raizers will have directly entered into an agreement).
Prospectus Law: New Belgian prospectus law which entered into force on July 21, 2018 implementing Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
Party: Refers to RAIZERS, in this sense jointly RAIZERS SAS and RAIZERS SA, when mention of their legal status is not made, if any, and/or any User.
Collection Period: refers to the subscription period, if extended, during which the User may subscribe to a CFO.
RAIZERS Platform: refers to the electronic platform www.raizers.com or any other electronic platform made available to the Subscriber by RAIZERS.
Threshold of Success: refers to the minimum amount of collection required for the finalization of a CFO, in other words a minimum of 75% of the target.
Funded Company: refers to any company presenting a CFO on the Raizers Platform.
Subscriber: refers to any person who realizes a Subscription and pays the corresponding Funding.
Subscription: refers to the commitment made by a Subscriber to participate in a Crowdfunding Offer.
Bonds: refers to bonds as defined by Article L.547-1 of the Monetary and Financial Code, or simple fixed rate bonds.
Use : refers to an Internet user duly registered on the RAIZERS Platform and who has accepted the General Terms and Conditions of Use of the Raizers Platform who is either a legal entity or an individual aged 18 years or over at the date of registration on the RAIZERS Platform, enjoying full legal capacity under the applicable law. The notion of "User" also includes "Wealth Advisors" registered on the RAIZERS Platform and having a portfolio of clients precisely identified in their Wealth Advisor account.
Unless expressly stated otherwise or if the context imposes a different meaning:
(i) references herein to the Introduction and to the Articles shall, unless otherwise specified, be deemed to include references to the Introduction and to the Articles of the GTCU;
(ii) the words including the plural must include the singular and vice versa;
(iii) the reference to a person bears implicit reference to the assignees of his/her goodwill and to his/her successors, heirs or assigns, if any;
(iv) the reference to a legal provision includes, where applicable, any amendment or new promulgation of this provision as well as any legal instrument, regulation or order relating to this provision or to its new promulgation; and
(v) the reference to a document refers to that document as it may be amended, replaced by novation or supplemented.
The purpose of these General Terms and Conditions of Use is to define the terms and conditions of use and access to the services that are proposed on the Raizers Platform and define the role and obligations of each.
3. REGULATORY ASPECTS
3.1 RAIZERS SA
RAIZERS SA offers intermediation services in order to link pre-selected companies with their registered office in Switzerland that are organized in the form of a public limited company on the one hand and investors, individuals and/or legal entities on the other.
The content of the RAIZERS Platform is solely for informational purposes for Users. RAIZERS SA, as an operator of the RAIZERS Platform, does not make any offer, request or recommendation to acquire or sell securities or any other equity or investment securities in companies, entities, investment vehicles or other vehicles of collective investment schemes, or to conclude any contractual transaction with itself. Financed Companies, as well as Users, are solely responsible for their respective transactions and operations and cannot rely on RAIZERS SA, as operator of the RAIZERS Platform, to make their investment decisions.
The Swiss Financial Market Supervisory Authority (FINMA) examined the business model of RAIZERS and concluded that its operations via the RAIZERS Platform were not subject to its supervision, authorization under the Swiss Federal Act on Banks and Savings Banks (LB), the Swiss Federal Stock Exchange and Securities Trading Act (SESTA) or under the Swiss Federal Act on Collective Investment Schemes (CISA).
In no event shall RAIZERS SA make any investments or hold any interests in the Financed Companies for its own account and/or that of third parties. Investors make their own investment choices without RAIZERS SA being involved in any way whatsoever in their internal relations. RAIZERS SA does not engage in any trading of the equity securities issued by the Financed Companies nor take the role of issuing company or market maker.
3.2 RAIZERS SAS
Up to French law, RAIZERS SAS is a Crowdfunding Adviser registered in the French Insurance Brokers' Register ORIAS under number 14007002.
Up to Belgium law, in accordance with December 18th, 2016 Act organizing the recognition and supervision of crowdfunding and carrying various provisions in the area of finance, RAIZERS SAS is an Alternative Financing Platform. It is not authorized to provide the investment advice service and cannot carry out an adequacy test with the Users.
The law of July 11, 2018 relating to offers to the public of investment instruments and the admission of investment instruments to trading on regulated markets, governs the limits of public offers in Belgium and determines to what extent RAIZERS SAS must comply certain information obligations towards the Crowd.
4. ACCESS TO THE RAIZERS PLATFORM
RAIZERS SA has developed and implemented the RAIZERS Platform which provides the interface between the User and the Financed Companies wishing to increase their capital or issue bonds.
The RAIZERS Platform, as well as all documents and information available on it, are addressed to and are exclusively accessible by individuals and/or legal entities domiciled in legal jurisdictions or legal systems in which the distribution, publication or use of which is not prohibited or restricted by the regulations and/or the legal provisions in force, or in which RAIZERS has been granted or issued a special authorization or permission to this effect.
Individuals and/or legal entities who are subject to restrictions related to their nationality, domicile, activities or other reasons are expressly prohibited from accessing and using the RAIZERS Platform.
4.1 Access to public pages
The following can be viewed and downloaded on the public and private pages of the RAIZERS Platform:
o the general terms and conditions of use of the RAIZERS Platform;
o the RAIZERS pre-qualification policy of the Financed Companies;
o a pedagogical explanation on the role of Institutional Partners.
4.2 Access to secure pages
4.2.1 User Registration
To become a User, the Internet user must carry out each of the following steps:
- Fill in the mandatory fields in the registration form available on the RAIZERS Platform: surname, first name, email and phone number;
- Understand the general risks inherent in the proposed investments (capital loss, illiquidity etc.) and accept them expressly.
If the User fails to provide the required information or does not accept the risks, RAIZERS will refrain from providing the services. In any event, RAIZERS will not be able to verify the accuracy of the information communicated by the User on his/her profile and will accordingly be justified in presuming it to be fair, unless if the information communicated by the User have an apparent inconsistency.
4.2.2 Presentation of CFOs to the User
In order to login to the Personal Account, the User will enter his/her email address as a login ("login") and the password he/she has chosen; these two elements will be strictly personal and confidential and will not be communicated or shared with third parties.
After identification, subject to compliance with the public offer legislation in his country of residence, all the Documentation containing information relating to the fund raising (bond contract, issuing prospectus, etc.) and the Financed Companies, their financial and legal situation, their activity and prospects will be accessible to the User.
The following information can be consulted and downloaded, in particular in the Regulatory Information Document:
o a description of the activity and project of the Funded Company, including, in particular, the latest accounts, forecasts of the activity and an organizational chart of the management team and the shareholders;
o information on the existing level of participation of the founding shareholders;
o information on the main rights attached to the financial securities covered by the CFO (including political, financial and information rights);
o information relating to the main rights (including political rights, financial rights and information rights) attached to the financial securities and categories of financial securities issued by the Funded Company before or simultaneously with the CFO, as well as all categories of beneficiaries of these financial securities;
o a description of the provisions contained in the Articles of Association of the Funded Company or an extra-statutory pact and organising the liquidity of the financial securities offered or the explicit mention of the absence of such provisions;
o the conditions under which copies of entries in the individual accounts of investors in the books of the Funded Company, materializing ownership of their investment, will be issued;
o a description of the risks specific to the activity and project of the Funded Company as well as the risks inherent in the subscription of a CFO;
o if any, a copy of the last report of the statutory auditor(s) on the regulated agreements presented to the last general meeting of shareholders of the Funded Company.
This information is published by each Funded Company under its own responsibility. It must ensure that the information given to Raizers is not incorrect, misleading, unlawful or immoral.
In particular, if the Funded Company must publish a prospectus (in the case of a public subscription of a Swiss company with more than 20 persons), it will establish it under its sole responsibility and at its own expense and then hand it over to Raizers to post it online. RAIZERS will not control the content, accuracy or completeness of the information contained in the prospectus published by Funded Company, which will bear the sole and exclusive liability of RAIZERS, the responsibility of the issuer within the meaning of Articles 752 and 1156 of the SCO. In particular, when the prospectus is drawn up, the Funded Company is solely responsible for information, documents, files and other contents relating to its activities, legal status and organization contained in the prospectus (Article 652a CO). The Funded Company is also solely responsible for controlling their content and format, as well as adapting, updating, processing or deleting them if necessary.
In accordance with the regulations, RAIZERS performs only a check of consistency, clarity (non-technical and unequivocal language) and balance.
This information will be supplemented by the RAIZERS Platform, in particular in the interim fact sheet, on the following aspects:
o the procedures for collecting and transmitting subscription forms;
o if known, the timetable of the CFO;
o the rules applied in case of over subscription:
o the details of the fees invoiced to the Subscriber*;
o the procedures for obtaining the description of the services provided to the Funded Company and the related costs.
All the Documentation available on the RAIZERS Platform will be downloadable, in particular the texts in a printable and non-modifiable version. These will be numbered and dated at the bottom of the page and will always correspond to the last version validated by the Funded Company.
* It is specified that the Subscriber must, in case of payment by credit card on the RAIZERS Platform, pay a fee of 0.8% of the amount paid. These fees apply to each payment made by credit card to the Subscriber's electronic wallet. It should also be noted that the bank card fees are exempt from VAT according to article 261 C of the General Tax Code.
4.2.3 Realization of Subscription to a CFO
Subscribing to CFOs is reserved for Users. To make a Subscription, the Subscriber must carry out each of the following actions:
In accordance with
- Article L. 547-9 of the French Monetary and Financial Code, RAIZERS will carry out a suitability test prior to each Subscription carried out by the User, which is not Belgian resident, in order to verify the consistency between the profile provided by the User and the CFO made available on the RAIZERS Platform;
- Article 25 of the Belgian Law of December 18, 2016, prior to the provision of alternative financing services, RAIZERS will ask the Belgian User to provide information on his knowledge and experience in investing to be able to determine if the CFO that RAIZERS markets are appropriate (suitability test).
- In the event of apparent inconsistency, the User will receive a pop-up message from RAIZERS asking him/her to verify the answers he/she has given in the matching questionnaire;
- Depending on User answers and/or his country of residence, RAIZERS will refuse the Subscription or propose to the User to limit the amount of his/her Subscription to a minimum amount, if this amount seems adapted to the situation of the User;
- Communicate by downloading the documents requested as part of the fight against money laundering;
- If necessary, complete the user profile in the "My profile" tab with the necessary information for the subscription (date of birth, address, IBAN, etc.).
RAIZERS considers by default that the investment is made by the User through a simple account. If this is done through a joint account between spouses, a collective account, an indivision or an inheritance, it is User's responsibility to inform RAIZERS so that it can take this information into account.
If the User fails to provide the required information or does not accept the risks, RAIZERS will refrain from providing the services. In any event, RAIZERS will not be able to verify the accuracy of the information communicated by the User on his/her profile and will accordingly be justified in presuming it to be fair.
The subscription request is made by means of the User clicking on the subscription icon "Invest" appearing on the pages of detailed presentation of the CFO.
As soon as the User makes a Subscription, the following processes are implemented:
1) An e-mail containing the Regulatory Information Document, and the prospectus if applicable, is automatically sent to the User by RAIZERS;
2) The intermediary information sheet, which is downloadable, informs the User about the services provided by Raizers to the Funded Company and the costs related to these services;
3) The User confirms having read the Documentation;
4) The User informs the amount of securities to which he/she wishes to subscribe.
Once the above steps have been completed and the RAIZERS Platform has validated them, the User:
1) will have access to the subscription form, explaining the terms of the Financing and, where applicable, the bond contract or the partners' agreement, whose signature of the subscription form is valid for acceptance;
2) will certify that he/she has read and accepted the terms and conditions;
3) will sign an electronic subscription form;
4) will pay the Subscription Financing to the escrow bank in accordance with the instructions appearing on the Raizers Platform screen or those explicit in the confirmation email of the Subscription received at the end of the Subscription;
5) will have access to their Subscription Form and the maturity of the bond loan, if any, in their Personal Account.
4.2.4 Payment of Financing
RAIZERS is duly empowered to discharge the escrow bank from its obligation to hold the Funds at the end of the Collection Period and instruct it to pay the said sums as follows:
o In the event of a premature termination of the Collection or if, at the end of the subscription period, the total amount of Subscriptions and the sums received by the escrow bank, after possible exercise of the options of withdrawal of all the subscribers, is below the threshold of success, the escrow bank will reimburse the amount paid by the Subscriber;
o If, at the end of the Collection Period, the amount of Subscriptions and the sums received by the escrow bank, after possible exercise of the options of withdrawal of all the subscribers, is greater than or equal to the Threshold of Success, the Financing (net of commissions deducted by the Institutional Partners or RAIZERS) will be paid to the Funded Company.
4.2.5 Cases of post-collection bond payments
The payment of the amounts subscribed, the collection of the Coupons and the repayment of the Bonds shall also be made through the escrow bank.
o For subscribers residing in France and subscribing to a CFO presented by a French company, it is recalled that the collection of Coupons constitutes an investment security with regard to the tax administration. As such, it is subject to social levies and to the income tax scale. The management of these tax flows is assumed by RAIZERS SAS in respect of withholding taxes.
o Any non-resident French taxpayer who wishes to take part in this same CFO must first check and ensure the compatibility of such Subscription with the legislation in force in the State in which it resides, in particular as regards the payment of taxes which may be due in that State as a result of the Subscription.
The reimbursement of the Obligations and/or the interests will be done in the five (5) business days following the expiration date. This period is related to the time required for the funds transfer from a bank account to another and to the tax and administrative treatment of the interests.
4.2.6 Post-Collection Monitoring
In the event of the success of a CFO, a limited follow-up of the activity of the Funded Company post-collection will be carried out through one of the following methods:
Within the framework of a company capital Subscription:
- Providing the Company with an IT and technical solution allowing it to self-manage its relations with the Subscriber after the Collection;
- Establishment of a system for representing the interests of the Subscribers and those of RAIZERS aiming to centralize with RAIZERS the relationship with the Funded Company, to allow it to have a privileged representative after the Collection, for the particular purposes of:
o In the context of a bond issue, monitoring of Coupon payments and capital repayment(s) and supervision of the Funded Company's financial position,
o In the context of capital raising, participation in general meetings and transmission, if necessary, of voting intentions.
To this end, in the event that the Funded Company chooses this method of post-collection monitoring, the Subscriber, by accepting these GTCU, gives RAIZERS a common-interest mandate in order to represent its interests in respect of the Funded Company. Consequently, the Subscriber will make its best efforts to submit any questions and complaints to RAIZERS and not directly contact the management of the Funded Company, as far as possible, for RAIZERS to forward any questions to the Funded Company and ensure the relationship with the latter.
Such a mandate does not imply any waiver by the subscriber of his/her right to participate, as the case may be, in shareholders and/or bondholders meetings of the Funded Company.
The Subscriber acknowledges that the present common-interest mandate is concluded in his/her interest, but also in that of RAIZERS, as an intermediary, and that consequently it can only be revoked by mutual consent of RAIZERS and of the Subscriber. RAIZERS and the Subscriber acknowledge, however, that this warrant will be revoked ipso jure in the event of a transfer to a third party of its securities by the Subscriber.
4.2.7 Subscription to a CFO by Belgian Users
According to the applicable legislations and regulations (and notably the “Loi organisant la reconnaissance et l’encadrement du crowdfunding” dated December 18, 2016), RAIZERS provides to the Belgian Users “financing alternative services”, as such term is defined under article 4 of such legislation dated December 18, 2016.
It is indicated to the User that RAIZERS will not provide investment advice to him and in the case of providing financing alternative services, RAIZERS will proceed with an “appropriateness” test related to the investment vehicles it commercializes.
In the event of failure to such test by the User or if the User refuses to communicate the requested information to realize the test, RAIZERS will inform the concerned User by the opening of a pop-up window.
5. REMUNERATION OF RAIZERS AND ABSENCE OF THE RIGHT OF WITHDRAWAL
5.1 Remuneration of RAIZERS
o Registration as a User is free. The User will pay, according to the CFOs, an investment commission (the "Commission") to RAIZERS for each subscription commitment made on the RAIZERS platform, up to a maximum of 3% including the amount of the Financing. The payment of the Commission shall be made at the time of payment of the Financing. The details of this remuneration are described in the interim information sheet relating to the CFO, which can be downloaded at any time in the Personal Account or at the second stage of the Subscription process.
o Also, the User is informed and agrees that RAIZERS may be remunerated by each Funded Company for the services provided by RAIZERS for its benefit. The details of this remuneration are described in the interim information sheet relating to the CFO, which can be downloaded at any time in the Personal Account or at the second stage of the Subscription process.
Notwithstanding the sums received by RAIZERS from the Financed Companies, RAIZERS will behave loyally and act fairly in the best interests of the User.
RAIZERS recalls that this remuneration is intended in particular to enable RAIZERS to carry out checks on the consistency of the information provided to the User, to ensure support for subscription forms and post-collection follow-up, thereby improving the service rendered to the User.
5.2 Absence of the right of withdrawal
Notwithstanding Article 14 of the “Framework Contract for Payment Service using MANGOPAY Electronic Money” and in accordance with current laws, no right of withdrawal is applicable to the provision of financial instruments. It is understood that such provision is not applicable to Belgian Users which have a withdrawal period of fourteen (14) days, in application of article VI of the Economic Law Code of Belgium.
The User acknowledges and expressly agrees that RAIZERS will not be able to make any refund of the amount of the financial instruments subscribed on the Site and of the commissions paid to RAIZERS after validation of the subscription commitment, except cancellation of the operation by the Funded Company.
6. OBLIGATIONS OF THE USER
The User generally has the obligation to (i) comply with the conditions for access to the RAIZERS Platform, (ii) provide accurate and faithful data relating to his or her civil status and profile, (iii) fill in any form and sign any agreements presented as compulsory on the RAIZERS Platform except to immediately close the User Area, (iv) behave in a fair manner with respect to RAIZERS and other users, (v) not use services, (vi) make no commitment to any third party; and (vii) not interfere with or attempt to disrupt the operation of the RAIZERS Platform, and (viii) take all necessary security measures to protect its password.
In the event where the User would not provide the information mentioned above or inadequate information, RAIZERS Platform will inform the User that she cannot determine if the investment vehicles are appropriate for him.
In the event of a violation of the above rules or those set out below, RAIZERS reserves the right to suspend the User's access to the RAIZERS Platform or the Personal Account or Services and/or to terminate the present with respect to the User with immediate effect.
The User also agrees to compensate RAIZERS and its partners and employees for any and all liabilities, losses, damages, claims, penalties, fines, fees and expenses, including, without limitation, reasonable attorney fees that may arise in connection with its use of the RAIZERS Platform and its access to the RAIZERS Platform (i), its use of the Services (ii), any content or information transmitted to RAIZERS or to the RAIZERS Platform (Iii), or failure to comply with any provisions of the GTCU or legal provisions prohibiting access to the RAIZERS Platform and services (iv). However, RAIZERS shall ensure that the information communicated by the User are consistent.
The User shall respect in particular the following provisions.
6.1 Intellectual Property
All intellectual property rights, with the exception of Documentation, such as logos, brand names and computer programs, as well as all updates, new versions and copies of the said programs made available to the User through the RAIZERS Platform are and will remain the exclusive property of RAIZERS or its transferees, successors or assigns and no ownership thereto is hereby transferred to the User.
The right of reproduction is understood only for the purposes of representation on a single screen and is strictly reserved for private use. Any reproduction, distribution or publication of contents for commercial or collective use without prior written permission from RAIZERS is prohibited.
The link mechanism is allowed when the pages related to the RAIZERS Platform appear in an entire, isolated window, under their respective addresses.
6.2 Use of the Forum and online content
Creating a Personal Account gives the User free access to the RAIZERS Platform Forum, an interactive space dedicated to the exchange of information between the User and other users or Financed Companies.
Users are solely responsible for the content published on the Forum. RAIZERS has no control over such content and is not liable for any damage resulting from this content.
The User agrees not to publish content contrary to the purpose of the RAIZERS Platform and/or the provisions of the GTCU and/or content that is unlawful, including:
o malicious, inappropriate, disrespectful, defamatory, xenophobic, racist, hateful, threatening, abusive or insulting content;
o content inciting violence, xenophobia, racism or hatred;
o content that is infringing, secret or confidential, misleading or erroneous (including personal information);
o content that is illegal or prejudicial to public order or morality;
o indecent, obscene or pornographic content.
The User also agrees not to publish content that includes:
o an invasion of privacy and/or image of third parties;
o material protected by copyright;
o trade secrets or business secrets;
o advertisements, commercial solicitations or chain emails;
o Personal Data to third parties except for authorization purposes.
This prohibition applies to any type of communications made via the RAIZERS Platform by the User without limitation, whether public or private, regardless of the person to whom it is addressed, including employees of RAIZERS.
RAIZERS reserves the right to freely modify, without notice. information about the User and/or freely remove without notice any content that, at its sole discretion, violates the terms of the GTCU.
6.3 Specific situation for Wealth Advisors
It is understood that the Wealth Advisors registered on the RAIZERS Platform are subject to all of the aforementioned provisions applicable to any User.
It is also specified that the Wealth Advisors are subject to a strict obligation of confidentiality. This obligation also applies to the clients whose assets the Wealth Advisors manage.
Thus, all the information available on the RAIZERS Platform or to which the Wealth Advisors would have access while carrying out subscriptions on behalf of their clients is strictly confidential and may under no circumstances be disclosed to a third party except in cases expressly authorized by law or regulations or for the purposes of carrying out the subscriptions. It is understood that the clients of the Wealth Advisor agree to communicate all their information and data to their Wealth Advisor.
In addition, it is understood that if a client of the Wealth Advisor no longer wishes to have any relationship with the Wealth Advisor, the client must inform RAIZERS as soon as possible and by e-mail at the following address: [email protected] In this case, the Wealth Advisor will no longer receive any commissions from RAIZERS upon receipt of the client's notification and will no longer have access to the information and data of the client concerned. This will of course only apply to the client concerned. The Wealth Advisor will continue to receive commissions for the other clients presented to RAIZERS.
Finally, it is added that these TOS prevail over any other document or contract that may be concluded between RAIZERS and the Wealth Advisors.
7. ACCESSIBILITY AND TECHNICAL OPERATION OF THE RAIZERS PLATFORM
The RAIZERS Platform is available as much as possible, 24 hours a day, seven days a week. Even as RAIZERS SA has taken all the necessary steps to ensure the reliability of the information, software and services contained on the RAIZERS Platform, it cannot be held responsible for errors, omissions, viruses or outcomes that could be obtained or be the result of improper use thereof.
RAIZERS SA reserves the right to suspend access to the RAIZERS Platform at any time, in particular for reasons of maintenance and site updates.
RAIZERS does not make telephone or permanent email support available to the User but will provide a contact email on the RAIZERS Platform. If the latter has questions about the operation of the RAIZERS platform or service, RAIZERS will endeavour to respond within a reasonable period that is proportionate to the gravity and urgency of the problem and the technicality of the issue (a few days to several weeks).
The User represents and warrants that he/she knows the characteristics, constraints and risks related to Internet use and the lack of privacy that results therefrom.
The equipment (computers, software, electronic media, etc.) allowing access to services are the sole responsibility of the User, as well as electronic communication costs incurred by their use. The use of any software downloaded from the RAIZERS Platform is governed by the terms of the license accompanying it. RAIZERS assumes no liability in connection with the use of the abovementioned hardware or software.
The RAIZERS Platform contains links to websites operated by third parties. RAIZERS cannot exercise any control over these sites nor assume any responsibility for their content. Accordingly, RAIZERS provides no warranty regarding the content and operation of these websites.
Users are solely responsible for the quality and confidentiality of the password chosen during registration, and any activity generated by their password and account. It is also responsible for ensuring that it closes its account at the end of each session. RAIZERS cannot be held responsible for any loss or damage arising from breach of the GTCU.
The User agrees to immediately notify RAIZERS of any fraudulent use of the password or Personal Account and any other breach of security.
8.1 Nature of liability
To the extent permitted by applicable law, RAIZERS is not liable for any direct, indirect, incidental, special, derivative, or any exemplary damages, including, among other things, damages for lost profits, loss of clientèle, loss of use, data or other intangible losses (even if RAIZERS has been advised of the possibility of such damages) arising from use of the services or RAIZERS platform; the RAIZERS Platform or the inability to use it; unauthorized access to your data or their alteration; statements or conduct of any third party on the RAIZERS Platform; information and all documents available on the RAIZERS Platform; or any other matter relating to the RAIZERS Platform.
8.2 General limitation of liability
RAIZERS may be held liable if there is serious or wilful misconduct on the part of RAIZERS.
RAIZERS will not be liable to the User for a possible degradation, suspension or interruption of service due to Force Majeure.
8.3 SPECIFIC EXCLUSIONS OF LIABILITY
8.3.1 LACK OF RELIABILITY OR OPERATION OF COMMUNICATION NETWORKS
The User acknowledges that RAIZERS SA has no control over the transfer of data over public communication networks such as the Internet and the operation of these networks. The User acknowledges and agrees that RAIZERS SA cannot guarantee the confidentiality of data when transferring it over public networks. Accordingly, RAIZERS SA cannot be held liable in cases including diversion, misappropriation, data corruption or other event likely to affect it occurring during transfer over public telecommunications networks. RAIZERS SA does not guarantee the compatibility of the RAIZERS Platform with all browsers.
8.3.2 LACK OF RELIABILITY OR OPERATION OF NETWORK OPERATORS OR INTERNET ACCESS PROVIDERS
RAIZERS SA cannot be held responsible for damage resulting from lack of access to the RAIZERS Platform due to disruption of network operators or Internet access providers or network congestion.
8.3.3 MALFUNCTION OF EQUIPMENT OR HANDLING ERROR/USER FAULT
RAIZERS SA cannot be held responsible for damages resulting from failure in computer systems and equipment of the User and/or misuse or handling of the user, a fault or negligence of the user or use of the RAIZERS Platform contrary to the GTCU.
8.3.4 SECURITY AND PERSONAL DATA
RAIZERS SA undertakes to use its best efforts to ensure that access to RAIZERS computer equipment and facilities be protected to limit unauthorized third party access to User's confidential data. However, RAIZERS SA shall not be liable for technical problems and incidents that may occur and cause damage to Personal Data.
The User remains solely responsible for the use of its identification elements by third parties or for actions or statements made through his/her Personal Account as User, whether fraudulent or not. The User guarantees RAIZERS SA against all claims in this regard.
8.3.5 PRE-QUALIFICATION PROCEDURE
The Financed Companies pre-qualification procedure allows only to guarantee the User their legal existence and their registration. Other criteria used by RAIZERS for pre-qualification, while they cover some legal or financial aspects, are not based on any codified or regulated methodology as part of its business. In particular, even when it uses the services of a professional expert, RAIZERS cannot assume the responsibility of an auditor, an accountant or a regulated legal profession. The selection procedure of the operations is described at: https://www.raizers.com/se-financer#crowdfunding.
However, RAIZERS is acting in good faith and in fair and professional manner and agrees to act in the best interest of its clients. RAIZERS agrees to communicate to the investors correct, precise, and non-misleading information.
The User decides, under his/her own responsibility, whether to invest in the context of the Financed Companies presented on the RAIZERS Platform or not. It is responsible for analysing the quality of the said CFOs, its chances of success and the amount of investment to be made in this context. RAIZERS is not responsible for any possible damages suffered by the User following the occurrence of the risks associated with the CFOs.
The User will be solely responsible for the review of the tax rules applicable to the Subscription, the Financing and potential revenue to be collected due to the possession or sale of its securities. RAIZERS gives no guarantee on the eligibility of the Financed Companies to a tax exemption.
If RAIZERS would present an operation as giving a right to tax advantages, the Platform would take reasonable measures to ensure that the conditions provided for the application of such advantages are well executed.
The information in the documentation and made available on the RAIZERS Platform by RAIZERS is broadcast on the initiative of the Funded Company which is responsible for the accuracy, non-misleading nature and completeness of the information in the Documentation except in the case where the Funded Company would provide information which are clearly incoherent. In such situation RAIZERS would have to search such inconsistencies.
In particular, the Financed Companies headquartered in Switzerland assume the responsibility of the issuer under Articles 752 and 1156 of the SCO for the content of information provided in the prospectus, as well as the establishment the subscription form, except in the case where the content of the information published in the prospectus of issuance would be clearly inconsistent.
Similarly, checking the consistency of the documentation is based on the assumption that the data transmitted by the Financed Companies is accurate and complete.
8.3.7 VIOLATIONS COMMITTED BY THIRD PARTIES
RAIZERS cannot be held responsible for damages resulting from the conduct of third parties, in particular contractual or criminal misconduct by the Financed Companies (whether in the use of funds collected, in accordance with the rules applicable to their relationship with the Subscriber as part of the collection or after) or by an Institutional Partner.
9. VALIDITY, AMENDMENTS AND TERMINATION
The GTCU take effect after their publication on the RAIZERS Platform and remain in effect until partially or totally modified by RAIZERS. At the inscription on the Platform, the User receives an updated version of the GTCU in pdf format in a marketing mail. RAIZERS can change the General Terms and Conditions of Use of the RAIZERS Platform. The User must therefore refer to the latest version of the GTCU accessible on the RAIZERS Platform on the consultation date of the RAIZERS Platform. In case of modification of the GTCU, RAIZERS will ask the User to accept the new version at the next connection to the RAIZERS Platform. The User will be obliged to accept them in order to access the content of the Platform. RAIZERS will give access on the Platform to the new version of the GTCUs as well as to the previous versions allowing the User to consult the changes made. The User will have access to the GTCU at any time on the Platform. The new version as well as previous versions will be available on a durable medium, and the User will be able to consult the latest changes made. RAIZERS also reserves the right to modify or to change the pages of the RAIZERS Platform, services, prices or access conditions at any time. These changes will be effective upon posting on the RAIZERS Platform. In case of modification of the prices, RAIZERS will communicate to the User the new pricing policy by email.
The User will expressly accept the modifications of the CGU in his Personal Account.
For access to some sections of the RAIZERS Platform, the GTCU may be supplemented by the additional conditions to be addressed directly to the User.
The GTCU constitute a contract of indefinite duration and may be terminated by operation of law:
(a) by the User at any time without notice;
(b) by RAIZERS at any time, upon thirty (30) days' notice except in the case of (c);
(c) by RAIZERS without notice in case of non-compliance by the User with the GTCU.
Notwithstanding this termination, for Subscriptions made by the User prior to the effective date of termination, the rights and obligations of the Parties under the GTCU will continue:
o In the event of the breach of the Threshold of Success with post-Collection follow-up by a common-interest mandate: until the term of this mandate;
o In any other case (absence of reaching the Threshold of Success on the expiration of the Collection Period, etc.) until the end of the CFO.
The User will have access to its Personal Account only for the monitoring of Subscriptions made prior to the date the termination takes effect.
10.1 Notification methods
Any notice, request or communication made pursuant to the GTCU must be made by a written instrument delivered, by any means, to the party concerned.
Any notice, request or communication to be made and any document to be issued by a Party to another Party in pursuance hereof shall be made according to the indications below:
(a) With respect to RAIZERS: To the attention of: [email protected]
(b) With respect to the User: To the address, phone number, email address, service name or responsible indicated by the User in his/her Personal Account.
10.3 Notices shall be deemed performed:
(a) by registered letter with acknowledgement of receipt: the date of first presentation of the registered letter by the postal service, the date mentioned on the receipt evidencing the date;
(b) by hand delivery: the date mentioned on the receipt signed by the recipient or any of its employees or agents.
(c) by electronic communication: the date mentioned on the dispatched message provided it has been received in readable form.
If one or more provisions of these General Terms and Conditions of Use should be declared invalid, such invalidity shall not affect the remaining provisions, which shall remain valid and will continue to apply. If a clause were to be removed or missing, it would be replaced by a legally valid provision consistent with the purpose of these GTCU.
11.2 Comprehensive nature
Unless otherwise stated, the GTCU contain in a comprehensive and exclusive manner all the terms applicable to the subject matter hereof and supersedes all negotiations, communications, statements and previous commitments, whether oral or written, between the Parties as to the subject matter hereof. The GTCU take precedence over any information medium.
In case of a Platform’s buy out, RAIZERS reserves the right to transfer to any third party of its choice all or part of its rights and obligations under these General Terms and Conditions of Use, which the User accepts without reservation.
Any complaint concerning this Site and/or its content must be addressed to [email protected] or the following telephone number: +33 9 83 60 48 17, with Mr Grégoire Linder, the Managing Director of RAIZERS SAS.
RAIZERS will make every effort to respond to all complaints within the following timeframes:
o Maximum of ten (10) working days as of receipt of the complaint, to acknowledge receipt, unless the response itself is made to the customer within this period;
o Two (2) months, except in the occurrence of special circumstances, between the date of receipt of the claim and the date of dispatch of the response to the client.
The User acknowledges and agrees that:
o The information provided by RAIZERS by email and on the RAIZERS Platform are legally binding between the Parties, and receive the same probative force as a handwritten document;
o All data contained in an unalterable, reliable, and secure manner in the RAIZERS computer database pertaining to particular orders and confirmations received from the User, notifications sent, access, withdrawals, refunds will be legally binding between the Parties until proven otherwise.
13. APPLICABLE LAW - JURISDICTION
These GTCU are governed by French law and fall under the jurisdiction of he French courts.
14. LEGAL NOTICES
(a) Publisher of the RAIZERS Platform: This site is published by RAIZERS SA
(b) Host of the RAIZERS Platform: OVH Company
(c) Contact for any complaint concerning this Site and/or its contents: [email protected]
Effective May 25, 2018
1 - Entity responsible for the processing of personal data (the controller)
The controller is the company that defines for what purpose and how your Personal Data are used :
RAIZERS SA, domiciled rue Beau-Séjour 8 C, c/o Olivier Peltier, 1003 Lausanne, hereinafter referred to as "RAIZERS".
2 - Nature of data collected
The data collected on the RAIZERS Platform are those enabling RAIZERS to identify Users directly or indirectly with a view to providing the various services offered by the RAIZERS Platform.
This may include personal data such as surname, first name, email address, postal address, telephone number, date of birth, gender or login data such as IP address and browser data such as cookies. Data must also be provided by Users for the purpose of paying a subscription or refund (IBAN, BIC, identity of bank account holder, securities account holder).
3 - Purpose of the processing
Personal Data will be used for the purposes of:
- Execution of the contract between RAIZERS and the User (see General Conditions of Use):
- Register and identify an Internet user or the User and/or verify the conformity of their use of the RAIZERS Platform;
- Protect the RAIZERS Platform and/or the User / an Internet user;
- Ensure the correct treatment of the Subscription;
- Creation of statistics and tests.
- Legitimate objective: the Personal Data collected may be necessary for the pursuit of a legitimate objective such that all forms of communication with Internet users/Users within the framework of the services offered on the RAIZERS Platform, it is being specified that if an Internet user/User no longer wished to receive communications, he/she would have the possibility of informing RAIZERS who would unsubscribe from any communication.
- Legal obligation within the framework of the activity of Participating Investment Advisor:
- "Know Your Customer" process;
- Prevention of abuse and fraud;
- Respond to a request from an administrative or legal authority;
- Comply with its obligations to prevent money laundering and terrorist financing.
The User expressly agrees that his Personal Data may be transmitted between the different companies of the RAIZERS group.
In addition, for the operation of the RAIZERS Platform, Personal Data is collected automatically by RAIZERS through cookies and other tracking devices. This is notably the case of the IP address, the date and time of access to the RAIZERS Platform, the URL visited, the site of origin, the type of browser and the operating system. RAIZERS therefore reserves the right to use the IP address of the User or of another Internet user in cooperation with his Internet access provider.
4 - Time of collection
The data collected by RAIZERS are freely communicated by the User.
Personal data are collected when using the RAIZERS Platform, in particular when the User :
- Create an account on the RAIZERS Platform;
- Navigates on the RAIZERS Platform pages;
- Conclude a contract and/or fill out a subscription form;
- Send a request to RAIZERS via the contact form.
5 - Consent
IMPORTANT : NOTE TO INTERNET USERS
If the User wishes to withdraw his consent to the processing of his data, he may send a request to RAIZERS in accordance with the procedure described in Article 8 below.
6 - Recipients of personal data
The recipient of the personal data collected on the RAIZERS Platform is RAIZERS in the first place.
Other recipients may have access to personal data, such as RAIZERS service providers or subcontractors. The list of recipients can be consulted at any time at the request of Users.
The Personal Data transmitted may, in the course of various operations, be transferred to a country of the European Union or outside the European Union.
In the event of a change of control of RAIZERS, an acquisition, a collective procedure or a sale of RAIZERS assets, the data collected by RAIZERS may be transferred to third parties.
7 - Length of data retention
To ensure the proper processing of financial transactions, your personal data must be kept and updated regularly throughout the time you are an investor.
In order to meet legal and/or regulatory obligations and/or to respond to requests from the authorities authorized to make the request, your personal data will be kept for the following periods in accordance with your situation:
- For a term of 10 years beyond the transaction date for all equity investments;
- For a term of 5 years beyond the repayment date for any loan investment; and
- For a period of 5 years for all other cases after the end of the contractual relationship.
8 - Right of access and rectification
The User will have to update his information and appearing on his Individualized Space. For the deletion of his Individual Space, the User may send an e-mail containing his user name and password to RAIZERS. The User may at any time exercise his rights concerning the collection and processing of his Personal Data:
- Right to access Personal Data: to access the information that has been provided to Raizers;
- Right to rectification of Personal Data: request correction of any error, obsolete information or omission in the information that has been provided to Raizers;
- Right to withdraw consent: request that some of the information provided by Raizers not be used in future processing or transfers;
- Right to the portability of Personal Data: request that Raizers send to a third party the information that has been provided to Raizers within the limits of the legal grounds that justified the collection and processing of this data;
- Right to the deletion of Personal Data: request the deletion of information that has been provided to Raizers within the legal grounds that justified the collection of such data.
However, the User acknowledges that the processing carried out before the consent is revoked remains perfectly valid.
The User also has the right to object without reason to RAIZERS profiling its data in the context of sending content or communications for commercial prospecting purposes. However, in accordance with Article 12.6 of the RGPD, RAIZERS, as controller, reserves the right to request proof of identity from the applicant in order to exercise these rights. The Personal Data used to justify the identity of the User will then be deleted once the request has been processed.
The User may exercise these rights by sending an email to [email protected] or to one of the following postal addresses:
For Internet users residing in France:
130 rue de Courcelles – 75 017 Paris
For Internet users residing in any other country :
Rue Beau-Séjour 8 C, c/o Olivier Peltier
9 - Response time
RAIZERS undertakes to respond to your request for access, rectification or opposition or any other additional request for information within a reasonable period which shall not exceed one (1) month from receipt of your request.
10 - Violation of Personal Data
In the event of a violation of Personal Data (article 34 of the RGPD), Raizers undertakes to inform, in addition to the CNIL, the Users concerned (i.e. the owners of the Personal Data) as soon as possible, if these pose a high risk to rights and freedoms.
(3) Conflict of interest management policy
- The French legislation relating to the Conseillers en Investissements Participatif;
- Belgian legislation relating to Alternative Financing Platforms, in particular article 27 of the law of 18 December 2016;
Raizers SA and Raizers SAS have established the following conflict of interest management policy and procedures.
- Identification of conflict of interest situations
- Raizers holds securities of the issuer prior to the transaction;
- Raizers has a business relationship with a competitor(s) of the issuer;
- The client's interest is at variance with Raizers' commercial interest; and
- Conflicts of interest that may affect Raizers employees :
- The employee responsible for the design and implementation of the transaction holds, directly or through an intermediary, listed or unlisted securities of the issuer prior to the opening of the transaction;
- The employee responsible for the design and implementation of the transaction has a non patrimonial relationship with the issuer;
- The employee responsible for the design and implementation of the transaction receives direct remuneration and/or gifts from the issuer of the securities concerned;
- Prevention system
By signing the company's code of good conduct, the company and its employees undertake to direct all their actions in the interests of the customer and refrain from doing so:
- To receive any remuneration, directly or indirectly, other than that indicated in the transparency framework explained below;
- Not to have an employee analyse an offer if he or she holds securities of the issuer and/or if he or she has a non-pecuniary relationship with the issuer.
The company may accept gifts and invitations if these are not likely to compromise the impartiality, independence or objectivity required to the company to perform its missions.
3. Transparency on potential conflicts
During the subscription process, the company informs its customers, through the "interim information sheet", of the identity of the issuers with which it has a commercial relationship.
Thus, the description of the fees charged to the investor is followed by the following paragraph: "You may obtain a detailed description of the services provided to the issuer of the securities being considered for subscription and the related fees on request from the following address RAIZERS SAS - 130 rue de Courcelles - 75017 Paris. »
In addition, the company, including all of its constituent entities, its directors and employees, shall at all times inform all users of the platform in a complete, accurate and comprehensible manner of the existence, nature and amount of any remuneration, commission or benefit that it may receive.
Finally, the payment by a third party of any remuneration or the granting by a third party of any non-monetary benefit on the basis of a recommendation from the company is only permitted if it is intended to improve the quality of the advice provided to the client and does not undermine the company's obligation to act in the best interests of the client.
In the case where the measures taken to avoid a conflict of interests do not guarantee with a reasonable certainty that the risk to prejudice the Investor’s interests will be avoided, RAIZERS will send an email to the Investors describing the nature and the source of the conflict of interests. RAIZERS will communicate the potential impact that the conflict of interests could have on the Investor and the consequences that such conflict could produce.
The Investor will have the choice to take part to the project or not.
4. Investment fund
The company advises its clients that she has created an investment fund.
The investment fund’s purpose is to invest in real estate operations selected by Raizers SAS or Raizers SA.
To avoid potential conflicts of interests, the prospectus of the investment fund provides a strict investment policy.
An automatic investment will occur which will take into account the rules defined in the prospectus and Raizers will not be able notably to decide the amounts invested. Such investment rules are mandatory and apply to Raizers in any cases.
(4) Framework Contract for Payment Services using MANGOPAY Electronic Money
The customer, whether a legal person or a natural person registered with the Commercial and Companies Registry (or with the national trade register or any equivalent professional body) in a Member State of the European Union or in a State party to the European Economic Area or in a third country imposing equivalent obligations regarding the fight against money laundering and the financing of terrorism, acting on its behalf exclusively for professional purposes (commercial, industrial, craft or freelance professions), hereinafter referred to as the “Account Holder” or “Professional Account Holder”,
The customer, a natural person residing in a Member State of the European Union or in a State party to the European Economic Area or in a third country imposing equivalent obligations regarding the fight against money laundering and the financing of terrorism, acting on its behalf exclusively for non-professional purposes, hereinafter referred to as the “Account Holder” or “Consumer Account Holder”, on the one hand,
MANGOPAY SA, a limited liability company under Luxembourg law, having its registered office at 2, Avenue Amélie, L-1125 Luxembourg and registered with the Luxembourg Commerce and Companies Registry under number B173459 (the amount of the share capital can be can be consulted here : https://www.mangopay.com/legal...), authorised to carry out business within the European Economic Area, as an electronic money institution approved by the Commission de Surveillance du Secteur Financier, 283 route d’Arlon L-1150 Luxembourg, www.cssf.lu, hereinafter referred to as the “Service Provider”, on the other hand, hereinafter referred to separately as a “Party” or together as the “Parties”.
The Account Holder is invited to carefully read this Framework Agreement communicated to them by the Platform before accepting it. The Account Holder is invited to download it on a Durable Medium. By default, communications with the Service Provider are always carried out via the Platform, in accordance with the terms and conditions set out in the General Terms and Conditions of the Website, except where a separate mode of communication is provided for in the Agreement.
For the purposes hereof, the following terms are defined as follows: “Authentication” means the procedures defined by the Platform to verify the identity of the Account Holder or the validity of a Payment Order. These procedures include the use of Identification Data.
“Banks” means the credit institutions in charge of protecting the funds collected by the Service Provider on behalf of the Account Holder. These funds are recorded in its records in an escrow account opened for this purpose with an institution designated by the Service Provider. The Service Provider reserves the right to select any other approved credit institution.
“Beneficiary” means a legal or natural person who is a creditor of a Payment Transaction issued by the Account Holder.
“Card” means the bank, charge or credit card used to transfer funds to a named Account Holder on their Payment Account opened in the Service Provider’s records. This card is attached to one of the following card networks: Visa, MasterCard or CB.
“Payment Account“ or “Account” means the Payment Account operated by the Service Provider in the name of the Account Holder and used for the purpose of implementing payment transactions. In no case shall the Account be treated as a deposit account. The Account is denominated in the currency indicated on the Website upon registering.
“General Terms and Conditions of the Website” means the general terms and conditions of use of the Website concluded between the users of the Website and the Platform, governing, in particular, access to the Website.
“Framework Agreement” means these General Terms and Conditions of Use for Payment Services, together with the Subscription Form, governing the use of the Payment Services and the management of the Payment Account by the Service Provider.
“Identification Data” means the Account Holder’s unique identifier and password enabling them to access their Personal Space.
“Personal Data” means any information relating to the Account Holder as a natural person, or to a natural person related to the Account Holder as a legal person (in particular, a designated company representative, a beneficial owner, an Authorised Person), within the meaning of European Regulation 2016/679 on the protection of personal data.
“Personal Space” means the Account Holder’s dedicated environment, accessible on the Platform Website, enabling them to access their Payment Account and use the Payment Services.
“Subscription Form” means the form to be completed by any prospective customer wishing to subscribe to the Payment Services, accessible on the Website upon registration or made available by the Platform.
“Business Day” means a calendar day except Saturdays, Sundays and public holidays in mainland France and Luxembourg, and any other day designated as such by the Service Provider.
“Payment Method” means the payment method other than the Card, listed on the Website, the acquisition of which is offered by the Service Provider as an option. The Account Holder activates the Payment Method of their choice from their Personal Space.
“Payment Transaction” means a periodic or one-off transfer, ordered by the Account Holder, or by any authorised representative, debiting the Payment Account.
“Payment Order” means the instruction given by the Account Holder to the Service Provider in accordance with the procedure set out in the Framework Agreement to carry out a Payment Transaction.
“Payment Page” means the page secured by the Service Provider’s electronic payment service provider.
“Data Subject” means the Account Holder as a natural person or any natural person related to the Account Holder (in particular, a designated company representative, a beneficial owner, an Authorised Person) whose Personal Data is processed in the context of the implementation of this Framework Agreement.
“Authorised Person” means any agent appointed by the Account Holder to access the Payment Account and use the Payment Services on its behalf.
“Platform” means the entity, whose contact details are indicated in the General Terms and Conditions of the Website, that operates the Website. It prepares, facilitates and advises prospective customers with a view to the conclusion of the Framework Agreement via its Website. It assists Account Holders throughout their relationship with the Service Provider in carrying out their Payment Transactions. It collects the documents required to open the Account. The Platform does not collect funds except its fees..
“Service Provider” means MANGOPAY SA, an issuer of Electronic Money approved in Luxembourg by the Commission de Surveillance du Secteur Financier under reference No. 3812 and authorised to carry out its activity in all member countries of the European Union. The Service Provider is included in the list of electronic money institutions available at www.cssf.lu/surveillance/ep-em...
“Third-Party Payment Service Provider” or “Third-Party PSP” means any institution, other than the Service Provider, authorised in a country that is a member of the European Union or a party to the European Economic Area or in a third country imposing equivalent obligations regarding the fight against money laundering and the financing of terrorism.
“Platform’s Customer Service Department” means the service whose contact details are stated on the Website, from which the Account Holder may obtain information relating to the Framework Agreement.
“Payment Services” means the payment services defined in points 3 and 5 of the Appendix to the Luxembourg Law of 10 November 2009 relating to payment services.
“Website” means the website operated by the Platform, the purpose of which is to sell goods or services to Users or to collect funds from them, or to put Account Holders in contact with Users.
“Durable Medium” means any instrument that enables the Account Holder to store information addressed personally to the Account Holder in order to be able to refer to it at a later date for a period of time appropriate to the purpose for which the information is intended and that enables the identical reproduction of the stored information. This is usually in the form of a PDF file.
“Account Holder” means any legal person or natural person acting on its own behalf and in whose name a Payment Account is opened to use the Payment Services.
“User” means any legal person or natural person who has transferred funds to an Account Holder through the Website using their Card or any other Payment Method accepted by the Service Provider to transfer funds.
The purpose of the Framework Agreement is to define the conditions under which the Service Provider provides Payment Services to the Account Holder..
These Payment Services include:
- the opening and management of Payment Accounts,
- crediting the Payment Account: the registration of funds transferred by Cards or by any other Payment Method accepted by the Service Provider; the receipt of transfers.
- debiting the Payment Account: the implementation of one-off or recurring Transfer Transactions, the charging of fees due hereunder, the reversal of transfers of funds by Cards (or by any other Payment Method).
The Account shall not be subject to any overdraft, advance, credit or discount. The Service Provider does not offer a currency exchange service.
The Service Provider has authorised the Platform to facilitate the conclusion of this Agreement with each Account Holder and to support them throughout their relationship with the Service Provider.
3. Subscribing to the Services
3.1. Subscription Terms and Conditions
The Framework Agreement is concluded remotely, according to the terms and conditions provided by the Platform in the General Terms and Conditions of the Website. In order to be able to conclude the Framework Agreement online, the applicant must have access to equipment (hardware and software), for which it is solely responsible.
By default, acceptance of the Framework Agreement is carried out remotely via the Website and is confirmed by an electronic signature. The applicant may request to sign the Agreement by hand. To this end, the Applicant must print this Agreement, sign it, and return it electronically or by post to the Platform’s Customer Service Department, the contact details of which are indicated in the General Terms and Conditions of the Website.
In case of a handwritten signature, the date of conclusion of the Framework Agreement is deemed to be the date indicated on it, and in the absence of a date, it will be deemed to be the date of receipt of the Framework Agreement by the Platform.
The electronic signature of the Framework Agreement is carried out via the Website. The date of conclusion of the Framework Agreement corresponds to the date on which the applicant completes the electronic signature process indicated on the Website.
The Framework Agreement concluded between the Parties by electronic means shall have the same probative value as a paper Framework Agreement.
3.2. Contractual Documents
The Framework Agreement is composed of:
- these General Terms and Conditions of Use for Payment Services,
- the Subscription Form available on the Website,
These General Terms and Conditions of Use for Payment Services are made available to the Account Holder on the Website and can be downloaded on a Durable Medium. At any time during the contractual relationship, the Account Holder may, upon request, receive these documents in paper form.
4. Opening an Account
4.1. Necessary Conditions and Prerequisites for Opening an Account
Any natural person aged at least eighteen (18) years who is legally capable, and any legal person, resident and/or registered in a Member State of the European Union or in a State party to the Agreement on the European Economic Area or in a third country imposing equivalent obligations regarding the fight against money laundering and the financing of terrorism, may submit an application to open an Account provided that the natural person is listed on the Website as a consumer or as a professional. A legal person can only be listed as a professional.
Upon submission of the Account Holder’s application for registration to the Platform and throughout the duration of the Framework Agreement, the Account Holder declares:
- that they are at least eighteen (18) years of age and legally capable, or that they are duly
constituted as a company,
- that they are acting on their own behalf;
- that all the information provided at the time of registration is true, accurate and up to date.
4.2. Registration and Account Opening Procedure
4.2.1. Information and Supporting Documents
Prospective Customers shall provide the Platform with the information and documents listed below, using the Application Form, if the said information and documents are not already in the Platform’s possession.
The prospective customer undertakes to transmit the information and documents corresponding to its capacity, either as a professional or as a consumer.
For a Consumer Account Holder as a natural person:
o their surname, first name, email address, date and place of birth, nationality and country of residence.
o a copy of a valid official identity document of the Account Holder (e.g., identity card, driving licence and, for non-EU nationals, a passport).
For a Professional Account Holder:
- for natural persons:
o their surname, first name, email address, date of birth, nationality and country of residence.
o an original or a copy of an extract from the official register, dated less than three (3) months ago, establishing the registration as a trader or in the national register of trades or any other professional body to which the Account Holder belongs.
o a copy of a valid official identity document of the Account Holder (e.g., identity card, driving licence and, for non-EU nationals, a passport).
- for legal persons:
o their name, type of organisation, capital, the address of their registered office, the description of their activity, the identity of the partners and corporate managers, as well as the list of beneficial owners as defined by the regulations,
o a Kbis extract (Certificate of Incorporation) or an equivalent document less than three (3) months old justifying its registration with the Commercial and Companies Registry of a Member State of the European Union or of a State party to the Agreement on the European Economic Area or of a third country imposing equivalent obligations regarding the fight against money laundering and the financing of terrorism, and its articles of association. This document must state the name, legal status, address of the registered office and the identity of the partners and corporate managers mentioned in Section 1 and Section 2 of Article R.123-54 of the French Commercial Code or their equivalents in foreign law.
o a copy of the articles of association and any decisions appointing the certified legal representative;
o a copy of the identity card or passport of the legal representative and, if applicable, of the beneficial owner(s).
o The declaration of the beneficial owners of the legal person holding more than 25%, if the prospective customer has not declared their beneficial owners in the national register, or if they are not subject to this obligation.
The Account Holder may also be asked to provide a bank statement for an account opened in their name with a Third-Party PSP.
It is expressly provided that the Service Provider reserves the right to request, prior to any registration and at any time during the duration of the Framework Agreement, additional documents concerning the Account Holder, the beneficial owner or a specific Payment Transaction.
4.2.2. Payment Account Limitation
At the discretion of the Service Provider, the use of a Payment Account may be limited without the Service Provider needing to justify its decision to the Account Holder concerned. In particular, the operation of the Payment Account will be limited if the Account Holder has not transmitted all the information and documents required by the Service Provider, as listed above. These limits are indicated to the Account Holder by the Platform.
4.2.3. Finalisation of the Registration Process
After concluding the Framework Agreement, the Account Holder must provide all the information and supporting documents requested by the Platform. By agreeing to the terms of the Framework Agreement, the Account Holder agrees that the Platform may forward to the Service Provider its application for registration as an Account Holder and all supporting documents received by it.
Only the Service Provider can accept the registration of a prospective customer as a Payment Account Holder on behalf of the prospective customer. This agreement will be notified to the Account Holder by the Platform by any means in accordance with the terms and conditions set out on the Website.
The Service Provider may, without giving any reason or entitlement to compensation in favour of the Account Holder, refuse an application to open an Account. This refusal will be notified to the Holder by the Platform by any means in accordance with the terms and conditions set out on the Website.
5. Payment Account Operation
The amounts credited to the Payment Account result from funds transferred by Card (or by any other Payment Method accepted by the Service Provider), or from the receipt of a transfer. The amounts debite to the Payment Account result from: the implementation of a Payment Order to an account opened in the records of a Third-Party Payment Service Provider, the debiting by the Provider of the fees owed by the Account Holder under the Framework Agreement, or the reversal of a transaction by Card (or by any other Payment Method).
5.1. Acquiring Payment Orders by Cards on the Payment Account
The Payment Account may be funded by Card (or any other Payment Method accepted by the Service Provider), in one or more instalments. When the User wishes to carry out such an operation, they must identify themselves on the Website by indicating their User identifier (valid email address) and password or by logging in via their Facebook account. The order for the transfer of funds is entered on a dedicated Payment Page. For any payment, the User may be asked to enter a single-use code notified on their mobile phone to the institution issuing the Card. If necessary, it is the Service Provider’s responsibility to refuse any payment at its own discretion and without this decision giving rise to any compensation whatsoever. The funds transfer transaction is carried out by the institution issuing the Card. Any dispute of such a transfer must be notified to the aforementioned institution. The Service Provider is not entitled to cancel such a transfer.
The Cardholder is informed that the acceptance of a Card payment order by the Service Provider does not guarantee the receipt of the corresponding funds by the Account Holder on their Account. The registration of funds on the Account Holder’s Payment Account is subject to actual receipt by the Service Provider of the funds.
In the absence of receipt of funds for technical reasons, the Service Provider shall use its best efforts to rectify the transaction. If the funds are not received for any other reason, the Service Provider shall inform the Account Holder as soon as possible of its inability to credit its Account with the expected amount, so that the Account Holder may contact the User.
In the event that the transfer of funds from the Account Holder’s Account is cancelled by the Card issuer following a dispute by the User, the Account Holder agrees that the Service Provider may reverse any Card funds transfer transaction by debiting the corresponding amount from the Payment Account. The Cardholder acknowledges that such a dispute may, in particular, be brought to the attention of the Card issuer until the expiry of a maximum period of thirteen (13) months following the date of debit of the account with which the Card is associated. In the absence of sufficient funds in the Account in order to carry out such a reversal, the Service Provider may suspend or cancel any Payment Transaction initiated by the Account Holder or an agent, or, where applicable, assume the rights of the Account Holder and proceed to recover the amounts due by the User by any means.
5.2. Receipt of Transfer to the Payment Account
The Account Holder authorises the Service Provider to receive on its Payment Account SEPA credit transfer transactions in euros from a bank or payment account opened in the records of a Third-Party PSP.
The funds are credited to their Payment Account by the Service Provider as soon as possible following their actual receipt by the Service Provider.
Once the funds have been paid to the Account Holder’s Payment Account, the Service Provider provides the Account Holder with a summary of the received transfer transaction, including the following information: the reference of the payment transaction, a reference to identify the payer, the amount of the transaction, and the credit’s value date.
5.3. Implementation of a Transfer Transaction Debiting the Payment Account
The Account Holder may transmit SEPA or international Transfer Orders to a Beneficiary’s account held
by a Third-Party PSP.
When the Account Holder wishes to carry out a Transfer Transaction, the Account Holder identifies themself in their Personal Space by indicating their Identification Data and, where applicable, by following the Authentication procedure indicated. It indicates on the Payment Page: the amount of the Payment Transaction, the currency, the Payment Account to be debited, the implementation date of the Order and any other required information. In the absence of any indication of date, the Transfer Order is deemed to be immediate. The Account Holder must also follow the Authentication procedure specified by the Provider.
The Account Holder may at any time send a request to implement a Transfer Order to a Beneficiary designated by it who has a bank or payment account with a Third-Party Payment Service Provider. The Account Holder must provide the reason for each transfer and comply with the Authentication procedure indicated by the Service Provider.
The Account Holder gives irrevocable consent to the Payment Order by clicking on the “Validation” tab (“Date of Receipt”). The receipt of the Payment Order is confirmed on the Account Holder’s Personal Space.
The Account Holder may not withdraw any Order after the date on which it is deemed to be irrevocable, i.e., from the Date of Receipt.
Before transmitting a Transfer Order, the Account Holder (or the Platform acting on its behalf) must ensure that it has sufficient funds available in its Account to cover the amount of the Payment Transaction. Where applicable, the Account Holder shall credit its Account before the Order can be validly transmitted to the Service Provider for implementation.
It is hereby expressly agreed that Payment Orders will be executed no later than the end of the Business Day following the Date of Receipt of the Order by the Service Provider (and on the agreed implementation date for deferred or standing order transfers). Any payment order received after 4 p.m. by the Service Provider is deemed to have been received on the next Business Day. If the Date of Receipt is not a Business Day, the Payment Order is deemed to have been received on the next Business Day.
For each Transfer Transaction, the Account Holder may request the Service Provider to provide information on a Durable Medium relating to the maximum implementation period for that specific transaction, the fees to be paid by the Account Holder and, where applicable, the details of such fees.
The Service Provider may refuse to implement an incomplete or erroneous Transfer Order. The Account Holder shall re-issue the Order to ensure its compliance. The Service Provider may, in addition, block a Transfer Order in the event of serious suspicion of fraudulent use of the Account, unauthorised use of the Account, breach of the security of the Account, in the event of an asset-freezing measure by an administrative authority or for any other reason.
In the event of a refusal to implement a Transfer Order or the blocking of a Transfer Order, the Service Provider shall inform the Account Holder by any means. If possible, the Service Provider will indicate to the Account Holder the reasons for the refusal or blocking, unless prohibited by a relevant provision of national or European Union law.
The Holder may at any time send an instruction to cancel a funds transfer in order to refund a User. The Account Holder identifies themselves on the Website by indicating their identifier and password. The Account Holder indicates, in their Personal Space, the amount to be refunded, the currency, the User to be refunded and any other information required. The refund transaction is implemented by the Service Provider by crediting the Card used by the User or by transfer according to the original payment method, within the limit of the available balance on the Account and within the rules of each network and the SEPA rules within five (5) Business Days following receipt by the Service Provider of the refund request.
The Account Holder has, in their Personal Space, a statement of the payment transactions carried out on the Payment Account. The Account Holder is invited to read the list of these transactions carefully. Transaction records may also be made available to a Professional Account Holder at other intervals upon specific request.
It is specified that for each Transfer Transaction implemented by the Service Provider, the Account Holder will be provided with the following information: the reference number of the Transaction, the identification of the Beneficiary, the amount of the Transaction, the date of receipt of the Order and, where applicable, the fees relating to the implementation of this Transaction.
7. Payment Account Access and Confidentiality
The Payment Account is accessible online in the Personal Space, using Identification Data and in accordance with the requested Authentication procedure.
The Account Holder shall provide Identification Data for each Authorised Person. Each Authorised Person shall agree not to use the name or Identification Data of another person. The Account Holder shall be solely responsible for any use of their identifier.
Each Authorised Person is fully responsible for maintaining the confidentiality of their Identification Data.
The Account Holder shall take all reasonable steps in order to maintain the confidentiality and security of its Identification Data.
The Account Holder (and each Authorised Person) agrees not to disclose their Identification Data to third parties.
The Account Holder must inform the Platform of the loss or theft of their Identification Data, the misappropriation or any unauthorised use of their Personal Space or related data as soon as they become aware of it in order to request that it be blocked. This declaration must be made:
- by telephone call to the Platform’s Customer Service Department at the number indicated in the
General Terms and Conditions of the Website; or
- directly by email via the contact form accessible on the Website.
The Service Provider, through the Platform, will immediately carry out the opposition request.
The Service Provider cannot be held responsible for the consequences of an opposition by fax or email that does not come from the Account Holder.
An opposition request is deemed to have been made on the date and time of the actual receipt of the request by the Platform. In the event of theft of the Identification Data or fraudulent use of the Personal Space, the Service Provider is entitled to request, via the Platform, a receipt or a copy of the complaint filed from the Account Holder, who undertakes to respond as soon as possible.
9. Blocking of the Payment Account
The Service Provider reserves the right to block the Payment Account for objectively justified reasons relating to the security of the Payment Account, the presumption of unauthorised or fraudulent use of the Payment Account or the significantly increased risk that the Account Holder will be unable to fulfil its obligation to pay the fees due under this Framework Agreement.
10. Disputing a Transaction
10.1. Provisions Common to All Account Holders
For any complaint relating to the Payment Transactions carried out by the Service Provider within the framework hereof, the Account Holder is invited to contact the Platform’s Customer Service Department or the address indicated for this purpose in the General Terms and Conditions of the Website.
If the Service Provider carries out an Order with errors due to the Service Provider’s fault, the dispute is forwarded to the Service Provider as soon as possible, the Order is cancelled and the Account is restored to the condition it was in before receipt of the Payment Order. Thereafter, the Order is properly represented.
10.2. Provisions Applicable to Professional Account Holders
A Professional Account Holder who wishes to dispute a Transfer Transaction that has not been authorised by it or has been incorrectly implemented must contact the Platform’s Customer Service Department by telephone as soon as possible after becoming aware of the anomaly and no later than eight (8) weeks after the transaction has been recorded in the account, and must forward the dispute to the Service Provider as soon as possible. Unless the Service Provider has good reason to suspect fraud on the part of the Account Holder, the Service Provider shall reimburse the Account Holder for the amount of the Transaction immediately upon receipt of the dispute request, and in any event no later than the end of the next Business Day. The Service Provider shall restore the Account to the state in which it would have been if the unauthorised Payment Transaction had not taken place.
In the event of loss or theft of the Identification Data, any unauthorised Transactions carried out prior to the notification of the opposition shall be borne by the Account Holder. Transactions carried out after the opposition are borne by the Service Provider except in the event of fraud by the Account Holder.
10.3. Provisions Applicable to Consumer Account Holde
A Consumer Account Holder who wishes to dispute a Transfer Transaction that has not been authorised by it or has been incorrectly implemented must contact the Platform’s Customer Service Department by telephone as soon as possible after becoming aware of the anomaly and no later than thirteen (13) months after the date of debit, and must forward the dispute to the Service Provider as soon as possible. Unless the Service Provider has good reason to suspect fraud on the part of the Account Holder, the Service Provider shall reimburse the Account Holder for the amount of the Transaction immediately upon receipt of the dispute request, and in any event no later than the end of the next Business Day. The Service Provider shall restore the Account to the state in which it would have been if the unauthorised Payment Transaction had not taken place.
In the event of a dispute, the burden of proof that the Transaction has been authenticated, duly recorded and accounted for, and that it has not been affected by a technical or other deficiency is the responsibility of the Service Provider.
In the event of an unauthorised payment transaction resulting from the loss or theft of the Identification Data, the Account Holder shall bear, prior to the notification of the objection, the losses related to the use of the Identification Data, up to a maximum of fifty (50) euros. Transactions carried out after the opposition are borne by the Service Provider except in the event of fraud by the Account Holder. However, the Account Holder shall not be held liable in the event of:
- an unauthorised payment transaction carried out without the use of the Identification Data;
- loss or theft of Identification Datathat cannot be detected by the Account Holder before payment;
- loss due to acts or omissions of an employee, agent or branch of a PSP or of an entity to which its activities have been outsourced.
The Account Holder shall not be held responsible:
- if the unauthorised Payment Transaction was carried out by misappropriating the Identification Datawithout the Account Holder’s knowledge;
- in the event of counterfeiting of Identification Data, if, at the time of the unauthorised Payment Transaction, the Account Holder is in possession of such Data.
The Account Holder shall bear all losses caused by the unauthorised Transactions if such losses result from any fraudulent action on its part or if it has intentionally, through gross negligence, failed to comply with its obligations to maintain the security of its Identification Dataand to notify its opposition in the event of loss, theft or misappropriation of such Data.
11. Financial Conditions
All commissions owed by the Account Holder to the Platform are automatically deducted from the Payment Account by the Service Provider. The Account Holder authorises the Service Provider to compensate at any time, including after the Account has been closed, any definite, liquid and due claim that remains outstanding for any reason whatsoever. It may compensate the provision on the Payment Account against any amount due, payable and unpaid by the Account Holder to the Service Provider.
12. Duration and Termination
The Framework Agreement is concluded for an indefinite period. It comes into force upon its acceptance by the Account Holder.
The latter may, at any time and subject to thirty (30) calendar days’ prior notice, terminate the Framework Agreement. The Service Provider may terminate the Framework Agreement at any time, subject to two (2) months’ prior notice provided on a Durable Medium. In such a case, the regular fees for Payment Services will be payable by the Account Holder on a pro-rata basis for the period up to the date of termination.
To that end, each Party must send its notice of termination of this Agreement to the other Party, by registered letter with acknowledgement of receipt, to the postal and email address indicated in the General Terms and Conditions of the Website.
As a result, the entire Framework Agreement is terminated and the Payment Account is closed. Any credit on the Account will be transferred within thirteen (13) months to the Account Holder’s Bank Account following the deduction of the fees due and payable to the Service Provider.
In the event of serious breaches, fraud, or unpaid debts on the part of the Account Holder, the Service Provider reserves the right to suspend or terminate this Agreement by sending an email accompanied by a registered letter with acknowledgement of receipt without reason or prior notice.
It is intended that the Framework Agreement will be automatically terminated in the event of new circumstances affecting a Party’s ability to commit hereunder.
13. Amendment of the Agreement
The Service Provider reserves the right to amend the Framework Agreement at any time. Any draft amendment of the Framework Agreement is provided to the Account Holder by the Platform.
Any Account Holder may refuse the proposed amendments and must notify its refusal to the Platform’s Customer Service Department by registered letter with acknowledgement of receipt two (2) months before the date of entry into force of the proposed amendments (postmark recognised as affording proof) to the address indicated in the General Terms and Conditions of the Website.
If the Account Holder has not notified its refusal prior to the indicated date of entry into force, the Account Holder is deemed to have accepted the proposed amendments. Relations between the Parties after the date of entry into force will then be governed by the new version of the Framework Agreement.
In the event of refusal by the Account Holder, this refusal will give rise, free of charge, to the termination of the Framework Agreement, as well as the transfer of the balance of the Payment Account within thirteen (13) months following the effective date of the termination in order to cover any future disputes.
Any legislative or regulatory provisions that would make it necessary to amend all or part of the Framework Agreement will be applicable as from their date of entry into force, without prior notice. However, the Account Holder will be informed.
The Service Provider undertakes to provide its services in compliance with the applicable laws and regulations and best practices. In particular, the Service Provider will make every effort to ensure the security and confidentiality of the Account Holders’ data, in accordance with the regulations in force.
The Service Provider reserves the right to temporarily suspend access to the Online Account for technical, security or maintenance reasons without these operations giving the right to any compensation. It undertakes to limit this type of interruption to what is strictly necessary.
However, the Service Provider cannot be held liable to the Account Holder for any errors, omissions, interruptions or delays in operations carried out via the Website resulting from unauthorised access thereto.
Furthermore, the Service Provider cannot be held liable for theft, destruction or unauthorised communication of data resulting from unauthorised access to the Website. In addition, the Service Provider is not involved in the legal relationship between the Account Holder and a User or between the Account Holder and the Website. The Service Provider cannot be held liable for the faults, shortcomings or negligence of a User and the Account Holder towards each other, or of the Website and the Account Holder towards each other.
If the unique identifier or any other information necessary for the implementation of a Payment Transaction provided by the Account Holder is inaccurate, the Service Provider shall not be liable for the improper implementation of such Service.
The Platform is solely responsible for the security and confidentiality of the data exchanged in the context of the use of the Website in accordance with the General Terms and Conditions of the Website, with the Service Provider being responsible for the security and confidentiality of the data that it exchanges with the Account Holder in the context of this Agreement in connection with the creation and management of its Account, as well as the Payment Transactions associated with the Account.
15. Limitation of the Service Provider’s Liability
The Service Provider shall not intervene in any way in the legal and commercial relations and any disputes arising between the Account Holder and the User or between the Account Holder and the Platform or between the Account Holder and a Beneficiary. The Service Provider has no control over the conformity, security, legality, characteristics and adequacy of the products and services that are the subject of a Payment Transaction.
Each transaction carried out by the Account Holder gives rise to an agreement, directly formed between the Account Holder and a User, in which the Service Provider is not involved. Consequently, the latter may not be held liable for the non-implementation or improper implementation of the obligations resulting therefrom, nor for any damage caused to the Account Holder.
Notwithstanding anything to the contrary in this Agreement, the Service Provider’s liability towards an Account Holder is limited to compensation for direct damages as provided for in the regulations.
16. Commitments of the Account Holder
The Account Holder guarantees that nothing in their Personal Space infringes the rights of third parties or is contrary to the law, public order or morality.
The Account Holder undertakes not to:
(i) Implement the Framework Agreement in an unlawful manner or under conditions that may damage, disable, overburden or impair the Website;
(ii) Impersonate the identity of another person or entity, falsify or conceal their identity, age or create a false identity;
(iii) Distribute personal data or information relating to a third party, such as postal addresses, telephone numbers, email addresses, bank card numbers, etc. In the event of failure to comply with its obligations, the Service Provider may take all appropriate measures to cease the actions concerned. The Service Provider will also be entitled to suspend, delete and/or block the Account Holder’s access to their Account.
(iv) Without prejudice to any legal action taken by third parties, the Service Provider is entitled to take any legal action in its own right to compensate for any damage that it may have personally suffered as a result of the Account Holder’s failure to comply with its obligations under this Agreement.
If the Account Holder notices a breach of the above obligations, the Account Holder is invited to inform the Service Provider of such actions by contacting the Service Provider at: [email protected]
17. Right of Withdrawal
17.1. Provisions Applicable to Consumer Account Holders
Under the terms of Article L222-7 of the French Consumer Code, a Consumer Account Holder has a right of withdrawal that can be exercised within a period of fourteen (14) days without having to provide any reason or incur any penalty. This withdrawal period begins either from the day of the conclusion of the Framework Agreement or from receipt of the contractual conditions and information, if the latter date is later than that of the conclusion of the Framework Agreement. The implementation of the Framework Agreement may only be initiated before the expiry of the withdrawal period with the consent of the Consumer Account Holder. The Consumer Account Holder acknowledges that the use of the Payment Services after the conclusion of the Framework Agreement will constitute an express request on its part to start the implementation of the Framework Agreement before the expiry of the above-mentioned deadline.
The exercise of the right of withdrawal entails the termination of the Framework Agreement, which, in the event of initiation of implementation, consists of cancellation and does not call into question the services previously provided. In this case, the Consumer Account Holder will only be required to pay proportionally for the Services actually provided.
17.2. Exercising the Right of Withdrawal
The Account Holder must notify the Platform’s Customer Service Department by telephone or email within the specified period and send a confirmation letter to the address of the Platform’s Customer Service Department. For this purpose, they can use the withdrawal form provided by the Platform.
18. Rules Regarding the Fight against Money Laundering and the Financing of Terrorism
The Service Provider is subject to all Luxembourg and French regulations relating to the fight against money laundering and the financing of terrorism.
Pursuant to the provisions of French and Luxembourg law relating to the participation of financial institutions in the fight against money laundering and the financing of terrorist activities, the Service Provider is required to obtain information from all Account Holders for all transactions or business relationships as to the origin, purpose and destination of the transaction or the opening of the Account. The Service Provider must also take all necessary steps to identify the Account Holder and, where applicable, the beneficial owner of the Account and/or the Payment Transactions linked to it.
The Account Holder acknowledges that the Service Provider may, at any time, terminate or postpone the use of Identification Data, access to an Account or the implementation of a Transaction in the absence of sufficient information regarding its purpose or nature. The Account Holder is informed that a transaction carried out hereunder may be subject to the exercise of the national financial intelligence unit’s right of disclosure.
The Account Holder may, in accordance with the regulations, access all information thereby communicated, provided that this right of access does not jeopardise the purpose of the fight against money laundering and the financing of terrorism when this data relates to the applicant.
No legal action or civil action may be brought or any professional sanction imposed against the Service Provider, its managers or employees who have made declarations of suspicion in good faith to their national authorities.
19. Personal Data Protection
The Service Provider shall collect and process all Personal Data in accordance with the regulations in force applicable to the protection of such Data and, in particular, with Law No. 78-17 of 6 January 1978 as amended and with European Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016.
The Personal Data required at the time of subscription is necessary within the framework of the services provided in accordance herewith. Failure to provide the mandatory Personal Data may result in the applicant being refused access to the services.
The Data Subject is informed that Personal Data is collected in particular for the following purposes: the provision of the services provided as described herein; the fight against money laundering and the financing of terrorism; the processing of requests for information and complaints; the production of statistics. These processing operations are, in particular, necessary for the implementation of the Framework Agreement and to comply with the legal obligations to which the data controllers are subject. The Provider and the Platform act as joint controllers of this processing.
Personal Data will not be transmitted to third parties without the express consent of the Data Subjects.
However, the Data Subject is informed that Personal Data is transmitted to subcontractors of the Service Provider, for the aforementioned purposes. The aforementioned subcontractors shall act only on the instructions of the Service Provider and exclusively on behalf of the latter.
The Data Subject concerned can access the list of subcontractors by sending their request to the Platform’s Customer Service Department. The Data Subject is informed that the Service Provider shall ensure that its subcontractors take all necessary measures to preserve the security and confidentiality of Personal Data. In the event of the occurrence of a Data breach (loss, intrusion, destruction, etc.) involving high risks for the Data Subject concerned, the latter will be informed.
The Service Provider reserves the right to disclose Personal Data at the request of a legal authority to comply with any applicable law or regulation, to protect or defend the rights of the Account Holder or a Data Subject, if justified by compelling circumstances, or to protect the security of the Account Holder, the Services or the public.
Personal Data processed by the Service Provider within the framework of the services provided in accordance herewith shall be retained for the period of time strictly necessary to achieve the purposes mentioned above. Unless otherwise provided by law and regulations, the Data will not be retained beyond the effective date of termination of the Agreement. In particular, it is specified that Personal Data relating to identification is kept for a period of five (5) years from the end of the contractual relationship, pursuant to the regulations applicable to the fight against money laundering and the financing of terrorism.
Data Subjects have the following rights over their Data, in accordance with the conditions set out in the regulations: right of access, right of rectification, right of opposition, right of deletion, right to limit processing and right of portability. A Data Subject may, at any time, exercise their rights by contacting the Platform’s Customer Service Department. The application must indicate the applicant’s surname, first name and identifier, and be accompanied by a photocopy of an identity document bearing the applicant’s signature.
A response will be sent to the Data Subject within one (1) month following receipt of their request. This period may be extended by two (2) months, depending on the complexity and number of requests. In this case, the Data Subject will be informed of the extension and the reasons for the postponement within one (1) month of receipt of the request.
The Data Subject is informed that they have the right to submit a complaint to the competent authority for any request relating to their Personal Data.
If the Data Subject submits their request in electronic form, the response will be provided electronically, unless they expressly request otherwise.
Where the Personal Data relates to a Data Subject who is not a party to the Framework Agreement and has been transmitted by the Account Holder, the Account Holder is responsible for communicating the information in this Article to the Data Subject.
20. Professional Secrecy
The Service Provider is bound by professional secrecy. However, this secrecy may be lifted, in accordance with the legislation in force, by virtue of a regulatory and prudential legal obligation, in particular, at the request of the supervisory authorities, the tax or customs administration, as well as that of the criminal court or, in the event of a court order, notified to the Service Provider. Notwithstanding the foregoing, the User is entitled to release the Service Provider from the obligation of professional secrecy by expressly indicating to the Service Provider the third parties authorised to receive confidential information concerning the User.
It is specified that professional secrecy may be lifted by the effect of the regulations in favour of companies providing the Service Provider with important operational tasks within the framework of this Agreement.
21. Intellectual Property
The Service Provider shall retain full ownership of the property titles and rights of any kind attached to the Services offered to the Account Holder. None of these property rights are transferred to the Account Holder hereunder.
22. Death of the Account Holder and Inactive Accounts
22.1. Death of the Account Holder
The death of the Account Holder terminates the Framework Agreement as soon as it is brought to the attention of the Service Provider. Transactions taking place following the death are, except with the agreement of the successors or the notary in charge of the estate, considered as not having been authorised.
The Payment Account will remain open for the time necessary to settle the estate and the Service Provider shall ensure the settlement of the balance with the agreement of the successors or the notary in charge of the estate.
22.2. Inactive Accounts
Any inactive Account may be subject to a notification of inactivity sent via email by the Service Provider followed by a reminder one (1) month later. The Account Holder’s Payment Account is considered inactive when, at the end of a period of twelve (12) months, it has not been the subject of any transaction (other than the charging of management fees) at the initiative of the Account Holder (or any authorised representative) and they have not communicated with the Service Provider in any form whatsoever.
If there is no response and no use of the balance credited to the Account within this period, the Service Provider may close the Account and maintain it for the sole purpose of transferring the amounts due to the account indicated by the Account Holder. In the event of death, the balance can only be refunded to the Account Holder’s successors.
The Account will no longer be allowed to carry out Payment Transactions.
23. Force Majeure
The Parties shall not be held liable or considered as having failed hereunder, in the event of a delay or nonimplementation, when their cause is related to force majeure as defined by Article 1218 of the French Civil Code.
24. Independence of Contractual Stipulations
If any provision hereof is held to be null or void, it shall be treated as if it had never existed and shall not invalidate the other stipulations.
If one or more of the provisions hereof should become null and void or be declared as such in application of a law, a regulation or following a final decision given by a competent court, the other provisions shall retain their mandatory force and scope. The stipulations declared null and void would then be replaced by the stipulations that come closest in meaning and scope to the stipulations initially agreed upon.
25. Protection of Funds
The Account Holder’s funds are deposited, at the end of the Business Day following the day on which they were received by the Service Provider, in an escrow account opened in the records of a Bank under the conditions required by the regulations.
Pursuant to Article 24-10 (5) of the Law of 20 May 2011 published in Mémorial A No. 104 of 24 May 2011 of the Grand Duchy of Luxembourg and Article 14 of the Law of 10 November 2009 published in Mémorial A No. 215 of 11 November 2009 of the Grand Duchy of Luxembourg, transposing Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 concerning access to the activity of electronic money institutions, the funds collected are protected and do not fall into the electronic money institution’s assets in the event of its liquidation, bankruptcy or any other state of support.
The Framework Agreement may not be transferred in whole or in part by the Account Holder, whether in return for payment or free of charge. The Account Holder is hereby prohibited from transferring any of its rights or obligations hereunder to a third party. In the event of failure to comply with this prohibition, in addition to the immediate termination hereof, the Account Holder may be held liable by the Service Provider.
27. Agreement on Evidence
All data contained in an unalterable, reliable and secure manner in the Service Provider’s computer database, in particular, relating to Payment Orders and notifications sent, shall be deemed authentic between the Parties until proven otherwise.
28. Complaints and Mediation
The Account Holder is invited to contact the Platform’s Customer Service Department, which may b eindicated on the Website, for any complaint.
Any complaint other than that provided for in Article 10 concerning the conclusion, implementation or termination of the Framework Agreement must be notified by email to the following address: [email protected]
The Account Holder agrees that the Service Provider may respond to their complaints on a Durable Medium. The response will be sent as soon as possible and no later than fifteen (15) Business Days following receipt of the complaint by the Service Provider. However, for reasons beyond its control, the Service Provider may not be able to respond within this period of fifteen (15) days.
In this case, it shall communicate to the Account Holder a response specifying the reasons for this additional time and the date on which it will send the final response. In any event, the Account Holder will receive a final response no later than thirty-five (35) Business Days following receipt of the complaint.
The Account Holder is informed that the CSSF (Commission de Surveillance du Secteur Financier) is competent to settle, on an extrajudicial basis, disputes relating to the implementation of this Framework Agreement. For more information regarding the CSSF and the conditions of such recourse, you may contact the Platform’s Customer Service Department or consult the CSFF website (http://www.cssf.lu). Applications for mediation must be addressed to the Ombudsman of the Commission de Surveillance du Secteur Financier (CSSF), 283 route d’Arlon, L-1150 Luxembourg ([email protected]), without prejudice to other legal remedies. However, the matter may not be referred to the Ombudsman if the application is clearly unfounded or abusive, if the dispute has been previously examined or is being examined by another
Ombudsman or by a court, if the application to the Ombudsman is submitted more than one (1) year after the written complaint to the Service Provider, or if the dispute does not fall within the Ombudsman’s field of competence.
29. Applicable Law and Jurisdiction
Except in the event of application of a law of public order (which will apply only within the strict limits of its purpose), it is expressly stipulated that the Framework Agreement is subject to French law. Any dispute between the Parties in respect of the Framework Agreement will be subject to the jurisdiction of the competent French courts.