General Terms and Conditions (GTC)

Status: 01.11.2021

Please note that only the German version of the following data protection declaration, available here, is legally binding.

 

Conda.ch GmbH ("Operator") operates an internet-based B2C crowdlending platform ("Platform") at www.conda.ch, which enables registered investors to invest in start-ups, SMEs and real estate projects.

On the platform, potential borrowers can present their projects to potential investors, which can only be legal entities, and provide information about the projects. The financing of the projects takes the form of an earmarked subordinated loan ("Loan") between the potential borrowers and private investors, which can be concluded via the platform.

Investors can also invest money in a company on the platform in exchange for a share in the company ("financing"). The companies present themselves on the platform. The financing of the company takes the form of an investment contract between the potential investor and the company, which can be concluded via the platform. Company share as consideration.

The operator is not a party to these loans or the investment contracts. Neither the Operator nor the Platform grant loans or financing support.
For any use of the Platform by potential investors and borrowers, respectively companies (collectively "Users"), the following General Terms and Conditions ("GTC") shall apply exclusively.

1 Scope
1.1 By using the platform, a contract of use is concluded between the user and the operator, which is exclusively subject to these GTC. Users acknowledge and accept that the operator provides the services of this platform exclusively upon conclusion and on the basis of these General Terms and Conditions (GTC).
1.1 The user contract is a binding contract between the potential borrowers or companies and the operator as well as between the potential investors and the operator.
1.2 The User Agreement does not regulate the legal relationships between the Users (e.g. between potential Borrowers and Investors). The loans and financing to be concluded or concluded via the platform shall be governed exclusively by the loan or investment agreements agreed between the users. Likewise, the legal relationship between borrowers and investors, or companies and investors, is not the subject of these GTCs.
1.3 There is no right to use the platform. The operator is free at any time to reject a potential user without giving reasons or to exclude a user from the use.

2 Users of the platform
2.1 Access requirements

Access to the platform requires Internet access and compliance with the system requirements defined by the operator. These are published on www.conda.ch and are adjusted from time to time. Each user is obliged to meet the current system requirements.
Access to the platform also requires compliance with the user agreement and these GTC. These are published by the operator on www.conda.ch. Each user is obligated to accept the respective applicable GTC before using the platform.
The operator will provide the user with the services of the platform from the time and as long as the system requirements are met by the user and the user complies with the user agreement and GTC.
Each User must register on the Platform. Natural persons must be of legal age and capable of trading.

2.2 Registration of Users Users must first submit an application for registration ("Application") to the Operator via the Platform.
Potential investors shall provide the Operator with all information that is required or that the Operator deems necessary in order to comply with the requirements of the applicable statutory provisions on money laundering (GwG) and, in particular, to enable the Operator to identify the potential investor or the beneficial owner ("KYC Process") and to determine a plausible origin of the potential investor's funds. Potential investors shall accept the applicable GTC in their application.
Potential borrowers shall provide the Operator with all information that is required or that the Operator deems necessary in order to comply with the requirements of the respective applicable legal regulations on money laundering (GwG) and to enable the Operator in particular to identify the potential borrower or company ("KYC Process") as well as to determine the purpose of the loan and the purpose of the financing. Potential borrowers and supporters must accept the applicable GTC in their application. There is no right to acceptance of the application.
Each potential user is obliged to provide the operator with all requested information without delay in the requested data format and to provide relevant documents if required. The decision as to which documents are necessary and are to be provided by a potential user for the examination of the application is at the sole discretion of the operator.

Potential users warrant that all information and data in and in connection with the application ("Registration Data") are correct and true. Furthermore, all Users undertake to immediately notify the Operator of any changes regarding their Registration Data via the Platform. Users are liable for all activities that are carried out using their Registration Data.
As soon as the operator has all registration data of a potential user, the operator will check them and, if necessary, request further information from the potential user. The operator is entitled, at its discretion, to delete incomplete or untrue applications at any time and without giving reasons, including the corresponding registration data. Upon completion of the review, the operator will notify the potential user of the decision to accept or reject the respective application by e-mail.

2.3 Access data

If the application is accepted, the Operator will inform the User accordingly and send him the access data configured for him by e-mail.
2.4 Identification procedure for Users and Authorized Persons
2.4.1 In order to use the platform, each User and Authorized Person must register and identify themselves on the platform. The registration takes place with each new call of the platform and each repeated new call (session-based).
2.4.2 Registration is personalized, i.e. each User may only register personally on the platform with his personalized access data.
2.4.3 The login is always done by entering the user name and a personalized password.
2.4.4 If a User wishes to enter into a legally binding transaction via the platform, a separate legitimation is required; for this purpose, the User or the Authorized Person must re-enter their user name and personalized password.
2.5 Blocking of Access

The Operator is entitled to exclude a User from using the Platform if:

2.5.1 the system requirements and/or the access requirements (above 2.1) are not or not fully met;
2.5.2 the User reports a loss of the access data or the actual or possible obtaining of knowledge of the access data by one (or more) unauthorized persons; 2.
2.5.3 a loss or gaining of knowledge of access data by unauthorized persons appears possible from the point of view of the Operator;
2.5.4 there is a reasonable suspicion of misuse or unauthorized use of the platform or the risk of such misuse or unauthorized use;
2.5.5 there is an important reason entitling the Operator to terminate the user contract.

3 Terms of Use and Duties to Cooperate
The User acknowledges the following terms of use and duties to cooperate and undertakes to comply with them:
3.1 The User undertakes to use the platform only on the basis of these GTC and not to take any measures or perform any actions that are not in accordance with these GTC.
3.2 The User undertakes not to enter into any agreements with other Users or to take any actions coordinated with other Users ("Acting in Concert") which influence or could influence the financing requests, the submission of offers and other transactions conducted on or via the platform.
3.3 The User shall use
the Platform and all information, data and evaluations received in
connection with the use of the Platform exclusively for the purpose of information, examination and, if applicable, participation in the financing requests offered via the Platform and/or concluded transactions and shall not use them for any other purpose or pass them on to third parties.
3.4 The User undertakes to open, call up or download all communications and publications of the Operator without delay and to take note of them. The User shall inform the Operator immediately of any inaccuracies or incompleteness.
3.5 The User shall immediately view, accept and implement all changes to the system requirements and the GTC on the platform.
3.6 The User shall take appropriate measures to ensure that the access data assigned by the Operator is only used by authorized persons and is kept strictly confidential. The User shall prevent the access data from being passed on or disclosed to unauthorized persons or other third parties and shall ensure that the access data is only used in a manner provided for in these GTC or expressly permitted.
3.7 The User shall immediately notify the Operator of any defects, malfunctions, software errors, functional limitations or damage that occur or threaten to occur during the use of the platform or of which the User otherwise becomes aware.
3.8 The User is responsible for the accuracy and completeness of the data, information and documents provided by him. The User shall inform the Operator immediately by e-mail if he no longer fulfills the access requirements or terms of use in whole or in part.
3.9 The User authorizes the Operator to take all actions within the scope of and in connection with the platform, to which the Operator is obligated by legal, judicial or official orders. The Operator is not liable for damages and expenses incurred by the User in connection with such actions. Should it become necessary to change the GTC due to one of the aforementioned orders, the Operator will inform the User of this by e-mail. The Operator can make the further use of the platform dependent on the User's consent to these changes.
3.10 The Operator makes available to Users on the platform information, data and documents that it has received from other Users. The Operator is entitled to rely on the correctness of the information, data and documents provided by Users. The Operator does not guarantee and is not liable for the correctness of the information, data and documents provided by Users.
3.11 If a User discovers an inaccuracy in the information, data and documents provided by other Users and made available on the platform, the User must notify the Operator immediately by e-mail.
3.12 The Operator is not responsible for limitations of the platform performance caused by circumstances or activities that fall under the responsibility of one or more Users or third parties.
3.13 The operator holds all permits required for the operation of the platform. He is subject to supervision by and cooperates fully with the competent authorities. This cooperation may also include the exchange of information regarding individual Users and transactions, to the extent that this is necessary or required by legal requirements or official orders.

4 Availability of the Platform

4.1 The functionalities of the Platform are available to Users on all banking days (Monday to Friday, from 8:30 a.m. to 5:30 p.m.), subject to the provisions in these GTC. The Operator reserves the right to change the availability of the platform (in particular also to restrict it) and shall notify Users of any changes promptly by e-mail.

4.2 The Operator is entitled to restrict or suspend the availability of the platform in particular in the following cases:

4.2.1 Maintenance work (planned or unplanned)

4.2.2 System malfunctions or errors

4.2.3 In the event of risks to security or attacks on the platform (hacking, phishing, other forms of cyberattacks)

4.2.4 Failure of infrastructure (e.g. networks, energy supply, etc.)

4.2.5 Strikes, shutdown orders or other orders by authorities

4.2.6 Pandemics, civil unrest, warlike events

4.2.7 Natural disasters and other cases of force majeure

4.3 If the availability of the platform is significantly restricted or completely suspended, the operator shall inform the users as soon as possible about the expected duration and scope of the disruptions.

5 Intellectual Property Rights.

5.1 Contents, representations, documents, functionalities and software of the platform are protected by copyright or other intellectual property rights (e.g. trademarks). The operator and any third parties with whom the operator cooperates are the owners of these rights.
5.2 Users may download information on the platform for personal or private purposes, print it out and use it under the usual conditions (naming of any copyrights and other intellectual property rights). All intellectual property rights remain with the operator or any third parties.
5.3 Any further use, duplication or distribution to third parties etc. without the prior written consent of the operator is prohibited. If information, illustrations and documents are provided with a reference to an existing copyright protection, such a reference may not be removed.

6 Communication
6.1 The operator provides various communication channels for communication with users. Unless otherwise provided by law or in these GTC, communication between the operator and users takes place by e-mail or via the dialog functionalities provided on the platform.
6.2 Insofar as a communication by letter is required by law or on the basis of these GTC, the Operator shall send the communication to the address last registered by the User. Notifications by letter to the operator shall be sent to the following address: Conda.ch GmbH, Rathausstr. 14, 6340 Baar (ZG).
6.3 Notices sent by the User to the Operator by any other means shall be deemed received by the Operator only if the Operator has confirmed such receipt to the relevant User in
writing.

7 Products on and Services of the Platform

7.1 BorrowersBorrowers
may post financing requests for projects on the Platform, provided that these projects have received a positive assessment from the Operator based on an internal and (if deemed appropriate by the Operator) an external assessment. Possible projects include:

  • Real Estate Projects
  • Corporate Financing
  • Start Up Financing7

7.2 CompaniesCompanies
can publish financing requests for their company on the platform, provided that the company has received a positive assessment from the operator based on an internal and (if the operator deems it useful) an external assessment.
7.3 ProductsInvestors
may submit financing offers for the products described in 7.1 and 7.2. Currently, financing can be offered in the following forms:

  • Subordinated loans
  • Shareholder shares

7.4 The Platform provides suitable standard contracts for the products mentioned in 7.1 and 7.2. These can be downloaded from the platform. The legal, tax and economic review of the contracts is the responsibility of the users.
7.5 Services of the PlatformThe
Operator shall provide the following services to the Users via the Platform:
7.5.1 the presentation of financing requests and the provision of related information;
7.5.2 the provision of the infrastructure for the submission of offers, initiation and conclusion of a transaction;
7.5.3 the provision of configurable sample documentation for each product for the written documentation of a Transaction concluded via the Platform;

7.5.4 the reporting within the scope of a Transaction;
7.5.5 the provision of the data on a concluded Transaction for the subsequent execution of the Transaction outside the Platform; and

7.5.6 other services agreed with Borrowers in writing in individual and separate contracts.
7.6 The services of the Platform do not include:
7.6.1 the participation of the Operator in a Transaction as a contracting party; 7.6.
2 ensuring the effective conclusion of Transactions;
7.6.3 the execution of Transactions concluded through the Platform or the reversal of Transactions in case of execution failures;
7.6.4 payment transactions for or on behalf of Users or in the course of the execution of Transactions;
7.6.5 verification of the financial circumstances, creditworthiness or integrity of a User insofar as these go beyond the general requirements of the KYC process. Users are and remain responsible for their own creditworthiness or integrity checks with respect to potential contractual partners.
7.6.6 Financial services, in particular investment advice, investment brokerage, investment recommendations or banking transactions or advice in connection with such transactions, unless otherwise expressly regulated in these Terms of Use;
7.6.7 The provision of information or advice on specific transactions;
7.6.8 The provision of guarantees or
assurances, in particular yield guarantees or assurances and repayment guarantees or comparable guarantees.

7.7 No advice

7.7.1 The Operator provides a platform for entering into transactions in relation to certain products.
7.7.2 The Operator does not provide any advice regarding the appropriateness and suitability of the respective product for the relevant User with regard to the User's investment objectives, investment experience and level of information. The Operator does not assume any responsibility for the decision-making process or the decision of a User, or for the occurrence and the effects of transactions that are concluded via the platform.
7.7.3 Each User is responsible for and shall ensure that he/she makes decisions regarding transactions on the basis of his/her own careful and independent examination and evaluation of the respective financing request and/or the respective product and obtains appropriate professional financial, legal and/or tax advice in a timely manner.

8 Placement Procedure
8.1 Placement Conditions

A financing request may be placed via the platform if it meets the placement conditions.
8.2 Each User acknowledges that there is no independent claim against the Platform for information about or participation in a particular financing request or transaction.
8.3 The exchange of information on a financing request or participation in a transaction shall be based on these GTC and the transaction conditions defined by the Borrower of the respective financing request.
8.4 The Borrower undertakes not to publish its financing offer simultaneously on another platform with a comparable purpose.
8.5 Placement processThe
placement process, in particular the form of the financing offer, the allocation of the financing and the execution of the transaction shall be regulated in the specific financing request and in the individual transaction agreement with the respective borrower or company.
8.6 Termination of a Placement
8.6.1 A financing request may be terminated and withdrawn by the Borrower or the Company at any time up to the placement of the financing request.
8.6.2 A financing request may be terminated after the placement of the financing request if a relevant market disruption (e.g. analogous to Art. 142 or Art. 143 of the Financial Market Infrastructure Act) occurs or exists and the Operator decides to terminate the financing request.
8.6.3 In cases pursuant to Sections 8.6.1 and 8.6.2, a financing request may be withdrawn or terminated without this giving rise to claims by Users against each other or against the Operator or without a User being able to assert such claims.
8.7 End of a Funding Request without Allocation8
.7.1 A Funding Request shall end without allocation and without conclusion of a Transaction if the sum of the nominal amounts of the submitted Funding Offers does not reach the target volume ("Funding Target") set forth in the Transaction Terms.
8.7.2 If the terms and conditions of the Transaction so provide, a request for financing may result in an allotment of Loans or of Shareholders' Interests, as the case may be, and in the completion of a Transaction, even if the aggregate nominal amounts of the financing Offers submitted do not reach the Funding Target set forth in the terms and conditions of the Transaction, provided that the aggregate nominal amounts of the financing Offers submitted reach the minimum amount set forth in the terms and conditions of the Transaction ("Funding Threshold").
8.7.3 If the sum of the nominal amounts of the submitted financing offers exceeds the Funding Target set forth in the Terms and Conditions of the Transaction, the Borrower or the Company, as the case may be, may make a pro rata allocation of Loans or Shareholders' Interests, as the case may be, in accordance with the Terms and Conditions of the Transaction and enter into the corresponding Transactions.
8.7.4 In cases pursuant to Section 8.7.1, a financing request may be terminated without concluding a transaction, without this giving rise to or giving rise to claims by Users against each other or against the Operator. An allocation only on a pro rata basis pursuant to Section 8.7.3 shall not give rise to any claims of Users among themselves or against the Operator beyond the completion of the transaction.

9 Risk managementThe
operator shall regularly take the following measures as part of its risk management (without thereby establishing a claim to the implementation of one or all of the following measures for one or more users):
9.1 The operator shall deploy suitable employees as part of the operation of the platform and shall conduct regular training of these employees.
9.2 The technical infrastructure for the operation of the platform shall comply with the standards that are customary on the basis of the technical systems available at the operator.
9.3 The Operator shall use a distributed server structure to support the production and failure safety of the technical infrastructure for the operation of the Platform.
9.4 Prior to the publication of a financing request via the Platform, the Operator shall perform a review of the transaction information deposited by the Borrower or the Company on the Platform in relation to the financing request in question, with the aim of identifying and correcting obvious input errors.
9.5 Within the scope of a financing request on the platform, there are input limits in order to avoid the erroneous entry of excessive financing offers.
9.6 The Operator has set up a technical system monitoring the Platform in order to detect possible technical errors or malfunctions in the operation of the Platform and to be able to react quickly to errors or malfunctions.
9.7 The Operator has implemented a standardized release planning for the execution of updates and other upgrades of the software and systems underlying the operation of the Platform.
9.8 The operation, possible updates and other upgrades of the software and systems underlying the platform shall be flanked by secured and standardized test and deployment processes.
9.9 The Operator shall perform regular backups of all information deposited by Users on the Platform in relation to individual financing requests.

10 Confidentiality and Data Protection10
10.1 Operator and User are aware that they have exchanged or will exchange confidential information in connection with the conclusion and performance of the GTC. Accordingly, Operator and User shall use all information, data, documents, in particular the Platform User Manual ("Confidential Information") received from the other party or another User or from their respective representatives, employees or consultants in connection with the GTC or the use of the Platform exclusively for the exercise of their respective rights and obligations and shall otherwise keep such information confidential.
10.2 This shall not apply:
10.2.1 to information which is already generally known or publicly accessible in advance,
10.2.2 to such information which the respective other Party or the other User has lawfully received from third parties without any obligation of confidentiality, and
10.2.3 to the extent that the Parties are obliged to disclose
such information
pursuant to applicable legal provisions or court or official decisions.
10.3 In addition, each Party may disclose confidential information to auditors and professional advisors of the relevant Party, provided that they are each subject to a professional or comparable contractual duty of confidentiality.
10.4 Personal data shall be collected, processed and used by the Operator only within the scope of and for the purpose of providing the service of the platform and for processing any financing requests. The processing of personal data, which the Operator has received from Users or otherwise, shall be carried out in accordance with the provisions of data protection law. Non-personal data may be used by the Operator for statistical evaluations, to improve the platform services and for marketing purposes.
10.5 Each party undertakes to disclose confidential information to third parties in accordance with section 10.1 above only to the extent necessary for the proper performance of these GTC or the initiation or conclusion of a transaction via the platform and shall in turn oblige such third parties to comply with the obligations under this section 10.
10.6 The provisions of this Section 10 shall not restrict the right of the Operator to further use ideas, concepts or procedures which relate to the services of the Platform and which become part of the general know-how of its respective employees in the course of the operation of the Platform, provided that this does not infringe any third party intellectual property rights.
10.7 The provisions of this Section 10 shall continue to apply for an indefinite period of time even after the end of the GTC and the User Agreement.

11 Involvement of third parties
11.1 In order to fulfill the services of the platform, the operator may use the services and performances of one or more third parties.
11.2 The operator is only liable for the careful selection of the commissioned third parties. In the event of service disruptions, the Operator shall assign any claims against commissioned third parties to the User.

12 Remuneration and fees
12.1 As consideration for the use of the platform, the User who uses the platform as a borrower or company shall pay the operator a remuneration in accordance with a separate remuneration agreement that regulates details of the components as well as payment modalities of the remuneration.
12.2 For Users using the platform as investors, the use of the platform is free of charge.

13 Liability
13.1 When using or claiming the services of the platform, each User acts in his own name and for his own account and risk, or in the case of licensed financial intermediaries, if applicable, for the account and risk of the mandating borrower or company.
13.2 The Operator shall be liable in accordance with the statutory provisions only for direct damages to Users caused by intentional or grossly negligent conduct of the Operator. In all other respects, the liability of the Operator, in particular for damages caused by negligent actions and for indirect and consequential damages, is excluded.
13.3 To the extent permitted by law, any liability of the Operator for direct and indirect material and immaterial damages as well as consequential damages (such as loss of profit, losses suffered and costs of any kind), based on access to this website, any use of this website, registration as a lender or as a company or 13.4 The Operator shall not be liable for any damages (such as loss of profit or loss of any kind) arising from access to this Website, any use of this Website, registration as a lender or as a company or entrepreneur, registration or launching of a project, making an investment in a product, or any use of information, documents, files and other contents made available on the Website concerning a project, or failed conclusion of a transaction or failed completion of a transaction.
13.4 The operator assumes no liability for services of third parties, which are used in the context of the provision of the platform services.
13.5 The operator is not liable for damages suffered by a user or third party due to the behavior of other users and which arise from incorrect, improper or abusive use of the platform or use that is not in accordance with these terms and conditions.
13.6 Any investment is made at the sole risk of the Lender or the Supporter (i.e. the Investors). The Operator cannot be held liable by an Investor in any way for any possible damage (financial or otherwise).
13.7 The Operator does not assume any liability or warranty for:
13.7.1 the accuracy and completeness of the details, information and data provided by Users in connection with the Platform, including the registration data;

13.7.2 the validity and effectiveness of the transaction agreements concluded between Borrower, respectively Company and Investor;
13.7.3 the proper execution and/or enforcement of transactions and transaction agreements between Users initiated and/or concluded via the Platform;
13.7.4 the assessment, creditworthiness or solvency of the Borrower, respectively the Company;
13.7.5 losses suffered by an Investor due to the insolvency of a Borrower, respectively the Company;

13.7.6 forged or falsified documents submitted by the Borrower, respectively the Company; 13.7.7 the
successful conclusion and execution of a Transaction;

13.7.8 damages (direct and indirect) which are attributable to the fact that a Transaction is not successfully concluded or cannot be executed despite its conclusion. In particular, the Operator assumes no liability of any kind if the transaction cannot be fulfilled due to the provisions of the Federal Law of 16 December 1983 on the Acquisition of Real Estate by Persons Abroad.

13.8 Each User shall be liable to the Operator for expenses and damages and shall indemnify the Operator against liability claims of third parties arising from violations of the obligations under or in connection with the User Agreement and these GTC for which the respective User is responsible.

14 Amendments to the GTC
14.1 The Operator is entitled to amend the GTC in part or in full at any time, in particular (but not limited to) if the amendments:
14.1.1 are necessary to fulfill the legal obligations of the Operator;
14.1.2 are exclusively for the benefit of the Users;
14.1.3 are reasonable for the Users taking into account the interests of the Operator.
14.2 The new GTC shall be communicated to registered Users by e-mail to the last e-mail address provided or by a corresponding notice at a suitable place on the platform. With the continued use of the platform, the users agree to the respective applicable GTC.

15 Term/Cancellation15
15.1 These GTC come into force by the acceptance of the User in the application for both the relevant User and the Operator and are valid for an indefinite period of time.
15.2 The GTC and the User Agreement can be terminated in writing by both the User and the Operator with a notice period of four (4) weeks to the end of each month ("Termination Date").
15.3 A termination of the GTC and the User Agreement, during one or more current financing requests in which the User is involved, shall only become effective when the or the last of the current financing requests has been completed. Upon receipt of a notice of termination, the relevant User shall be excluded from participating in any new transactions.
15.4 Both the User and the Operator may terminate the GTC and the User Agreement at any time for good cause. Such cause shall be deemed to exist, inter alia, if a transaction agreement initiated or concluded via the platform to which a User is contractually party can be terminated because there is good cause for termination for which such User is responsible.

16 AssignmentThe
User is not entitled to transfer rights or obligations from these GTC to third parties without the prior written consent of the Operator. The operator is entitled to transfer individual or all rights and obligations from these GTC to third parties.

17 No validity of other GTC of usersGeneral
terms and conditions or other rules of a user ("User GTC") are not applicable in connection with the use of the platform. User GTC are not recognized by the Operator, even if the Operator does not expressly object to the validity of such User GTC. User GTC shall only apply if they are explicitly agreed with other users in writing.

18 Partial Invalidity
18.1 Should one or more provisions of these GTC be or become invalid, ineffective, inadmissible or unenforceable for any other reason, in whole or in part, the validity of the remainder of these GTC shall not be affected.
18.2 The invalid provision shall be replaced by a new provision that comes as close as possible to the economic sense and purpose of the invalid provision.

19. place of jurisdiction

19.1 The exclusive place of jurisdiction for all disputes arising out of, in connection with or concerning the validity of these GTC, the User Agreement and or the use of the Platform shall be Zurich (Switzerland).
19.2 These GTC and the User Agreements and are governed by Swiss substantive law (excluding conflict of laws and international conventions). All non-contractual rights and obligations arising out of or in connection with the use of the Platform shall also be governed exclusively by such law.