OTC Terms of Service

General

Introduction

These OTC Terms of Service (the "OTC Terms") govern your use of the over-the-counter conversion services provided by Wake AG, Gubelstrasse 11, 6300 Zug, Switzerland, UID CHE-381.774.414 ("Wake AG", "we", "us"). "You" means the person or entity that has entered into an OTC Service Agreement with us.

Wake AG is affiliated to VQF, a self-regulatory organisation recognised by FINMA, as member no. 101395, and is a financial intermediary within the meaning of the Swiss Anti-Money Laundering Act. The affiliation concerns compliance with that Act; it is not a FINMA licence for any other activity.

Definitions

• OTC Service Agreement — the individual agreement between you and Wake AG setting out the commercial terms for your relationship, including fees, supported assets and settlement arrangements.
• Site — wakepay.ch and any interface, portal or application programming interface we make available to you.
• Business Day — a day other than a Saturday, Sunday or public holiday in the Canton of Zug.
• Transaction — a conversion between crypto-assets and fiat currency, or between crypto-assets, executed through the OTC Services.

Order of precedence

If these OTC Terms conflict with your OTC Service Agreement, the OTC Service Agreement prevails for the matter in conflict. These OTC Terms govern everything the OTC Service Agreement does not address.

Acceptance and changes

By using the OTC Services you confirm that you have read, understood and accepted these OTC Terms. We may change them, and will publish the revised version on the Site with a new issue date. We will give you 30 days' notice before a change that materially affects your rights takes effect. If you do not accept it, you may terminate under the termination clause below before it takes effect; continued use after that date constitutes acceptance.

Eligibility

The OTC Services are available to business customers who have completed our onboarding and due diligence requirements. They are not available in every jurisdiction, and we may decline or discontinue service to any customer or in any jurisdiction at our discretion.

The OTC Services

What we do

We convert crypto-assets into fiat currency, and fiat currency into crypto-assets, and settle the proceeds in accordance with your OTC Service Agreement. We act on a reasonable-efforts basis, facilitating your Transaction by dealing with you directly and then sourcing liquidity from our counterparties.

Wake AG will not execute a Transaction for its own account or benefit, or that of an affiliate, while in possession of specific confidential information regarding that Transaction, or in any manner designed or intended to disadvantage you.

You acknowledge and agree that Wake AG is not acting as your broker, intermediary, agent or adviser, nor in any fiduciary capacity, in relation to any Transaction. Where Wake AG acts as principal to a Transaction with you, it does so for the sole purpose of providing liquidity and satisfying your trading requirements.

Quotes and pricing

Before a Transaction is executed we provide a quote showing the rate, the fee and the net amount. A quote is valid for the period stated in it and lapses if not accepted within that period. On acceptance the quote becomes binding on both of us and the amount is fixed, so you do not bear market movement between acceptance and execution. If a quote is manifestly erroneous, the error provisions below apply.

Before a transfer

Before any crypto-asset transfer that will become irreversible, we tell you that it is irreversible and set out the charges payable. Where the sending wallet is self-hosted, we require evidence that you control it — by a test transaction or a signed message — before we accept funds from it.

After a transfer

After execution we provide a reference allowing you to identify the conversion, the amounts and types of assets transferred or received, and a breakdown of the costs agreed in your OTC Service Agreement. If a transfer is rejected, returned or suspended, we tell you why, what can be done about it, and any costs arising — except where the anti-money-laundering provisions below prevent us from doing so.

Limits

We may set or change limits and other parameters on your Transactions where we need to for financial, operational, risk or regulatory reasons. Limits are set on a risk basis and may be adjusted for individual cases or for particular customer segments. We will tell you about a change unless doing so would compromise a regulatory obligation.

Your obligations

Information and verification

You will give us the information and documents we request to verify identity, establish beneficial ownership, understand the source of funds, and detect money laundering, terrorist financing, sanctions breaches, fraud and other financial crime. We may ask again at any time during the relationship. Completing verification is a precondition of using the OTC Services, and you permit us to retain a record of the information and documents you provide.

You will tell us without delay if information you have given us changes — in particular any change of ownership, control, directors, authorised signatories or business activity.

Accuracy

You are responsible for the accuracy of the destination details you give us, including bank account details and blockchain addresses. A transfer sent to an address you gave us cannot be recalled.

Anti-money-laundering, sanctions and reporting

We are subject to the Swiss Anti-Money Laundering Act and to the regulations of our self-regulatory organisation. To comply we screen customers, counterparties and transactions, monitor activity on an ongoing basis, and investigate anomalies.

We may, without liability to you, refuse to execute a Transaction, hold funds or assets, suspend your access to the OTC Services, or terminate the relationship, where we consider it necessary to comply with those obligations or where we have reasonable grounds to suspect financial crime or a sanctions breach.

Where we make a report to the Money Laundering Reporting Office Switzerland, the law prohibits us from telling you or any third party that we have done so. In those circumstances we will give you no reason for a hold, refusal or termination, and nothing in these OTC Terms obliges us to.

Risk

The OTC Services carry risk, and you acknowledge that:

• we are not a bank or other depository institution, and any balance we hold for you is not a deposit;
• balances and crypto-assets are not covered by deposit insurance or any comparable government protection scheme;
• crypto-asset prices are volatile and transfers on a blockchain are irreversible once confirmed;
• blockchain networks are outside our control, and network congestion, forks or failures may delay or prevent a transfer;
• you use the OTC Services at your own risk.

We give no investment, tax or legal advice. Nothing we say to you, and nothing on the Site, is a recommendation to enter into any Transaction. Decisions are yours.

Errors and corrections

If an error occurs — in a quote, in the confirmation of an order, in processing, in funding an account, or in a transfer — we may correct it. Correction may involve adjusting balances, reversing entries where that is technically possible, revising the Transaction to reflect the correct parameters, cancelling it, or recovering an amount transferred in error. We will tell you when we do this and explain why. You will cooperate in recovering an amount credited to you in error, and you may not keep it.

Liability

To the fullest extent permitted by law, neither Wake AG nor its directors, employees or agents is liable for indirect, incidental, special or consequential loss, including loss of profit, goodwill, business opportunity or data, however arising.

Our total aggregate liability arising from or in connection with these OTC Terms and the OTC Services is limited to the total fees paid by you to Wake AG in the twelve months immediately preceding the event giving rise to the claim.

Nothing in these OTC Terms excludes or limits liability for unlawful intent or gross negligence, which cannot be excluded in advance under Art. 100 of the Swiss Code of Obligations, or any other liability that cannot lawfully be limited.

We are not liable for failure or delay caused by events beyond our reasonable control, including blockchain network failure, failure of a bank, liquidity provider or other third party, act of authority, or force majeure.

Indemnity

You will indemnify Wake AG, its officers, directors, employees and agents against claims, demands, actions, damages, losses, costs and expenses, including reasonable legal fees, relating to or arising out of your use of the OTC Services; your breach of these OTC Terms or of your OTC Service Agreement; your infringement or violation of the rights of a third party; your breach of any applicable law; and any content, materials or information you submit or make available through the OTC Services, or that you authorise or instruct us to submit on your behalf.

Where you are required to indemnify us, we may assume the defence and control of the matter, and you may not settle it without our prior written consent.

Suspension and termination

By us

We may limit, suspend or terminate all or part of the OTC Services, or your access to them, where we are required to for legal or regulatory reasons, where we reasonably suspect financial crime, where you are in material breach, or where continuing would expose us to unacceptable risk. Where circumstances allow we will give you notice and an opportunity to remedy.

Breach

A breach of these OTC Terms by you may cause Wake AG harm for which damages alone would not be an adequate remedy. You consent to Wake AG seeking injunctive or other equitable relief in those circumstances, in addition to any other remedy available to it at law.

By either party

Either party may terminate on 30 days' written notice to the other. Termination does not affect obligations outstanding at the date it takes effect, and the clauses that by their nature should survive termination — including liability, indemnity, confidentiality, record keeping and governing law — do so.

On termination

We will settle amounts properly due to you once any outstanding Transactions have completed and any regulatory constraints have been resolved. We will continue to retain records for the periods the law requires.

Communications

We communicate with you primarily by email, and it is your responsibility to give us a valid address and to monitor it. Emails from us may include links to further information on the Site. A communication sent by email is treated as received on the same day if it arrives before 16:30 on a Business Day, and on the following Business Day otherwise.

We communicate in English, and will accept communications from you in English. Where a document is provided in another language for convenience, the English version prevails.

Complaints

If you are dissatisfied, write to complaints@wakepay.ch. We will acknowledge within five Business Days and respond substantively within 20 Business Days, telling you if we need longer and why. Our complaints handling procedure is available on request.

Data protection

We process personal data in connection with the OTC Services as described in our Privacy Policy. Where you pass us personal data relating to your own customers or personnel, you confirm that you are entitled to do so and that those individuals have been given the information their law requires.

General

• Assignment — you may not assign or transfer your rights or obligations without our written consent. We may assign ours to a successor to our business or to a group company, on notice to you.
• Severability — if a provision is held unenforceable, the rest continues in force and the provision is replaced by one that comes closest to its commercial intent.
• No waiver — a failure or delay in exercising a right is not a waiver of it.
• Entire agreement — these OTC Terms together with your OTC Service Agreement and the documents they refer to constitute the whole agreement between us on their subject matter.
• No third-party rights — no one other than you and Wake AG has any right to enforce these OTC Terms.
• Interpretation — headings are for convenience only.

Governing law and jurisdiction

These OTC Terms, and any dispute or claim arising out of or in connection with them or their subject matter or formation, including non-contractual disputes or claims, are governed by Swiss law, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods.

The courts of Zug, Switzerland have exclusive jurisdiction, subject to any mandatory place of jurisdiction that applies.