Last Updated: November 27th, 2024
These Terms and Conditions including the Schedules (these "Terms") together with any documents referred to in these Terms including the [AML Policy], [Cookies Policy], [Privacy Notice], and [Website Acceptable Use Policy] (as amended from to time), and any other Policy form the agreement between you and Omnes (the "Agreement").
"Omnes", "we", "us", and "our" in these Terms refer to Omnes Technology AG, a company incorporated with limited liability in Zug, Switzerland, existing under the laws of the Canton of Zug and the federal laws of Switzerland, under company registration number CHE-291.195.476, and having it’s registered address at Gubelstrasse 15, Zug, ZG 6300, CH, Switzerland (including any successor and assignee). If you are a Corporate Entity, references to "you" and "your" includes the Corporate Entity (and any successor and assignee) and any Authorised Individuals. Other defined terms are set out in Clause 79 (Definitions and interpretation).
These Terms set out the general terms that govern our relationship with you. Where you buy a specific Product offered by us from time to time, the terms that apply to that Product are set out in the relevant Schedule. You must read and agree to these Terms and the relevant Schedule that apply to the Products that you intend to buy.
In the event of a discrepancy between the provisions of:
You are responsible for checking our Website regularly and reviewing the current version of the Agreement. We have the right to amend these Terms in accordance with Clause 62 (Amendments).
These Terms supersede any previous agreement between you and us on the same subject matter and will apply to all transactions contemplated under these Terms.
The Agreement will apply when you expressly agree to these Terms or when you access or use our Services which will be deemed as your acceptance of the Agreement.
If you have any questions about the Agreement, please contact us using the details set out in Clause 10.1 below.
Omnes has obtained a [no action letter from] FINMA dated 17 January 2025 for its Products and Services. The firm's registered office is at [Gubelstrasse 15, Zug, ZG 6300, CH, Switzerland c/o Taidos AG]. Omnes is only operating from Switzerland and does not have an operating presence in other jurisdictions.
Subject to these Terms, we will provide to you a non-advisory, non-management, and execution-only services (including any Electronic Platform Services) as described in Clause 17 (Execution-only services), and any other services that we may offer from time to time in relation to the Products.
We reserve the right not to offer one or more Products to you in accordance with the Agreement, our Policies, and such other factors and considerations we determine at our sole discretion.
You must read and agree to these Terms which govern our Products and Services.
Our Product pricing is dependent, among other things, on Hash Price. Hash Price can be volatile and fluctuate significantly in short timeframes. Omnes may have periods during which it is not accepting Orders for one or more Products, this means you would not be able to submit Orders during this time even if there is significant adverse price movement for a Product resulting from Hash Price fluctuations or otherwise.
By entering into these Terms you acknowledge and agree that you have the appropriate knowledge and experience to use our Services, that you understand the risks involved and that you have provided us with all the information necessary for us to confirm our Services are appropriate for you. If you are unsure about whether our Services are appropriate for you then you should consult an independent adviser before proceeding.
Certain of our Products involve the sale of deliverable Hashrate. In order to deliver the Hashrate to the Mining Pool of your choice, the Platform will require your input of Delivery Instructions. In that regard, you acknowledge and agree that:
We act as principal when providing our Services to you. We will not at any time act as agent or trustee on behalf of you.
You will only act as principal when entering into transactions or using our Services. [You will not at any time act as agent or trustee on behalf of another person]
We may not provide our Services in whole or in part to clients who are domiciled or resident in Restricted Countries. We may change the list of the Restricted Countries, as well as the Services that are available in a Restricted Country, from time to time. Please contact us if you require further information.
If you or your Authorised Individuals travel to or through a Restricted Country, you may not have access to your Account or any of our Services during your travel. This restriction applies even if you do not normally reside in that country or jurisdiction. We are not liable for any Losses which result from your or your Authorised Individual's inability to access or delay in accessing your Account or our Services because you or your Authorised Individuals are in a Restricted Country.
Upon receiving your application form for an Account, we will make appropriate assessments to classify you as either a professional client or an eligible counterparty for the purposes of the [FINMA Rules].
If you are categorised as an eligible counterparty, we will not be required under the FINMA Rules to provide certain protections or information which are available for professional clients. In these circumstances, we will provide you with a client categorisation notice, setting out the regulatory protections that you would lose as an eligible counterparty.
You may request at any time to be reclassified to a different classification and therefore increase your level of protections. We will reasonably assess each request by you in light of your experience, expertise and knowledge and will, at our discretion, determine the appropriate classification in accordance with such criteria.
If you request to be categorised as a retail client, or if your circumstances change so that you satisfy the definition of a retail client under the FINMA Rules, we will not be able to provide any Services to you.
You agree and acknowledge that you are responsible for keeping us informed about any change or information that may affect your client classification.
These Terms and all transactions entered under these Terms are subject to Applicable Regulations, so that:
If a Hashrate Seller (or agent, or intermediate reseller or broker, acting at the direction of, or as a result of action taken by, a Hashrate Seller) or regulatory body takes any action which affects an Order, then we may, at our discretion, take any action that we reasonably consider desirable to minimise any loss which you may incur as a result of such action. Any such action that we take will be binding on you.
Communicating with us
You may communicate with us in the following ways:
| By telephone | - |
|---|---|
By email | |
By post | - |
Online | - |
However, you must only place Orders in accordance with Clause 27 (Placing of Orders) and deliver notices in accordance with Clause 59 (Notices).
Communicating with you
Electronic communications
We have internal procedures for handling complaints fairly. You may submit a complaint to us by letter, telephone, e-mail, or in person. Our contact details are set out in Clause 10.1 (Communications between you and us).
We will send you a written acknowledgement of your complaint within three (3) Business Days’ of receipt of your complaint.
You will only be able to open an Account with us if you have completed the application form and provided us with the information that we request in accordance with our client onboarding processes and procedures. This includes information that enables us to identify and verify your identity and conduct fraud and sanction checks, anti-money laundering and counter-terrorism checks, and any other checks required under the Applicable Regulations and our internal Policies and procedures.
For the purposes of carrying out these checks and verifications, we reserve the right to charge you a non-refundable onboarding fee. The equivalent amount of such fee charged will be credited to your Account in Omnes Credits, upon successful onboarding and opening of your Account. For the avoidance of doubt, such fee is not refundable, including if your application to open an Account is declined by us.
We reserve the right to decline your application for an Account at our sole discretion and without providing any reason to the extent permitted by Applicable Regulations.
You will only be able to open an Account with us if you have completed the application form and provided us with the information that we request in accordance with our client onboarding processes and procedures. This includes information that enables us to identify and verify your identity and conduct fraud and sanction checks, anti-money laundering and counter-terrorism checks, and any other checks required under the Applicable Regulations and our internal Policies and procedures.
For the purposes of carrying out these checks and verifications, we reserve the right to charge you a non-refundable onboarding fee. The equivalent amount of such fee charged will be credited to your Account in Omnes Credits, upon successful onboarding and opening of your Account. For the avoidance of doubt, such fee is not refundable, including if your application to open an Account is declined by us.
We reserve the right to decline your application for an Account at our sole discretion and without providing any reason to the extent permitted by Applicable Regulations.
We may be required under the FINMA Rules procedures to assess on one or more occasions whether the Products and Services that we offer to you are appropriate for you (the "Appropriateness Assessment").
Where you have been classified as a professional client, we may be entitled under the FINMA Rules to assume that you have the necessary experience and knowledge to understand the risks involved in relation to Products and the Services. Where you have been classified as an eligible counterparty, we may not be required under the FINMA Rules to carry out an Appropriateness Assessment.
You agree and acknowledge that any Appropriateness Assessment we carry out on you is based on the information provided by you, and we may rely upon that information. We will not be responsible for any Losses which may arise from any error, incompleteness, inaccuracy, or inconsistency in the information you provided. In addition, you agree to notify us immediately of any changes to the information which you have provided, and to provide us with up to date, accurate and complete information to enable us to conduct each Appropriateness Assessment. You also agree to provide us such information at our reasonable request.
You agree to promptly provide us upon our request any information or document which we would require under the Applicable Regulations or our internal Policies and procedures. We may request such information or document at any time, including prior to Account opening. This includes instances when we carry out or refresh our know-your-customer checks and customer due diligence checks.
If any information or document which you have provided to us under the Agreement (including any representations made) changes, becomes inaccurate or misleading, you agree to provide us the updated information or document as soon as possible.
Any information or document that you provide to us, whether that information or document is required under the Agreement or not, must be complete, accurate and not misleading. If you fail to provide us the required information or document and relevant updates for any changes, or if you provide inaccurate, incomplete or misleading information, we will not be able to open an Account for you, or, if you already have an Account, we may suspend, freeze, block, or close your Account at our sole discretion.
You agree and acknowledge that we may use third party organisations and entities to verify any information you have provided to us.
You agree that you will keep the security information in connection to your Account, including passwords secret and confidential.
You should not give any third party access to or control of your Account. If you give another person access to or control of your Account, you do so at your own risk and you will be responsible for all decisions of that third party.
If you are a Corporate Entity, you may elect to give one or more Authorised Individuals access to or control of your Account but you will do so at your own risk. You must ensure that Authorised Individuals do not disclose the security information in connection to your Account to another person within or outside of your organisation or compromise the security of your Account in any way. You will be responsible for all decisions of the Authorised Individuals and any third party to whom security information has been disclosed by an Authorised Individual.
You agree that we are not required to enquire or verify with you the authority of any Order, transaction, decision or other activity on your Account and we can assume that all activities on your Account are carried out by you, your Authorised Individuals, or another person with your permission.
Without prejudice to Clause 15.4, we will have the right (but not an obligation) to block your access to your Account or to our Services if we believe this is necessary for security or legal reasons.
In the event of a cyberattack, hack, cybersecurity incident, or other similar event, of Omnes, or any third party electronic services utilised by Omnes, Omnes reserves the right to suspend the accessibility of your Account, or the availability of Services and Products on your Account, and to carry out such investigations and mitigatory action, that Omnes deems, in its sole discretion, to be in the benefit of its clients. In such event you will be notified by Omnes in accordance with Clause 10 of the actions Omnes is taking as soon as reasonably practicable.
Omnes works with third party service providers to ensure it maintains the best industry practices relating to the security of your Account and Products including two factor authentication. Omnes also utilizes third party ‘know your transaction’, ‘know your customer’ and ‘anti-money laundering’ tools as part of its security measures.
Where we believe, in our reasonable judgment, that you (or other parties) may have engaged or may be engaging in improper, unlawful or unfair activity, we may immediately suspend one or more of your Accounts in order to investigate. This may include restricting your access rights to your Account and Products, limiting your ability take any actions in relation to your Account and Products, or any other restrictions as we consider necessary in our sole discretion.
We may receive your Orders and execute such Order to sell you or buy back from you the relevant Product.
We deal with you on an execution-only basis and we will not provide you with any:
When you an Order with us you represent that you have made your own independent appraisal into the risks of the transaction. You agree and acknowledge that you will not rely on any opinion, research or analysis expressed or published by us or our Affiliates as being advice or recommendation in relation to a Product or Service.
In the course of our Services to you, we may, at our absolute discretion, provide you with:
Where we do provide such information, you agree and acknowledge that:
We will not provide any management services to you in relation to our Product or Service.
Our provision of a Service to you will not give rise to any fiduciary or equitable duties on our part, on part of our Affiliates or our employees. You agree that nothing contained in these Terms will create a fiduciary, trustee, agency, joint venture or partnership relationship between you and us, you and our Affiliates or you and our employees.
Omnes may, from time to time, offer a referral program for users with an active Account. The terms and conditions governing such a referral program will be published on the Website.
You may buy a Product from us or sell a Product back to us placing a 'buy' or 'sell' Order at the prices we quote to you.
A quote provided by us is indicative and is not an offer to buy back from, or sell a Product to, you at the quoted price. A Product is bought or sold at the quoted price only once an Order is accepted by us.
The way in which the prices that we quote to you are established will be dependent on the Product.
When we quote a price, Hash Price market conditions may move between our sending of the quote and the time your Order is executed. Such Hash Price movement may be in your favour or against it, and your Order will be executed at the price prevailing, as determined in our sole discretion, at the time of Order execution. Prices that may be quoted or traded upon, for similar Products, from time to time, by third parties will not apply to trades between us and you.
A quote we provide to you is valid only at the time it has been provided and is subject to change. Therefore, actual prices may change significantly depending on the prevailing market conditions and our quoted price.
From time to time it is possible that errors may occur in the pricing of our Products. Notwithstanding the rights that you have under Applicable Regulations we reserve the right to void, or to amend the terms of, any Order or any transaction that we reasonably believe, at our sole discretion, to contain or be based on an obvious or palpable error ("Manifest Error"). In deciding whether an error is a Manifest Error we may take into account any relevant information including, the state of the market relating to that Product at the time of the error and any error within, or lack of clarity of, any information source or pronouncement.
In the absence of our fraud, wilful default or gross negligence, we will not be liable to you for any Losses following:
You may place an Order through the Platform.
We will only act upon an Order once the Order is received and accepted by us and we will have no liability to you for any Losses that may arise from delayed receipt of an Order, or non-receipt of an Order.
You will not be able to place a buy Order unless you have provided Delivery Instructions for such Order in accordance with Clause 35, and made payment for such Order in accordance with Clause 36.
You may cancel your Orders, without incurring additional fees, if we have not acted upon those Orders, and upon so doing, the same amount of Omnes Credits that were deducted from your Account for such Order, will be credited your Account.
We will be entitled to act for you upon any Order, instruction or communication given or purporting to be given by you, your Authorised Individuals or any person authorised on your behalf without further enquiry as to the genuineness, authority or identity of the person giving or purporting to give such Orders. You will be responsible for and bound by all obligations we enter into or assume on your behalf as a result of or in connection with such Orders, instructions or communications.
You are responsible for any Losses incurred by us for acting or attempting to act on any Orders given or purporting to be given by you or any person authorised to act on your behalf.
If your Order is incomplete, unclear, ambiguous or inconsistent with your other Orders, you agree that we may in our absolute discretion and without any liability on our part act upon what we believe in good faith the Order to be.
We will not be obliged to accept any Order. If we decline to accept an Order, we will not be obliged to give you a reason but we will promptly notify you.
You agree that we will not be liable for any Losses that you or your Affiliates may incur by reason of:
Without prejudice to the generality of Clauses 29 (Authority to act on an Order) and 30 (Right not to accept an Order), if we have accepted an Order and we subsequently suspect:
we may, in our absolute discretion, reverse that Order at the then prevailing price quoted on the Platform or treat that Order as having been void from the outset.
We will have the right, at our absolute discretion, to set limits and parameters to control your ability to place an Order or to give instructions. We may amend, increase, decrease, remove, or add to the limits and parameters set from time to time. The limits and parameters may include:
You will be bound by all Orders placed by you notwithstanding any limits, parameters or controls set by us have been breached.
We will use our reasonable endeavours to execute an Order promptly, but in accepting your Order we do not warrant that it will be possible to execute such Order or that the execution will be possible according to your instructions or at the price quoted.
We will execute an Order only when we have or can source sufficient Hashrate to execute the Order.
We will send you a confirmation within [insert timeframe for confirmations] detailing the Orders that have been successfully processed. Such confirmation will be available on the Platform,
It is your responsibility to inform us if you do not receive a confirmation, or if a confirmation or information relating to a particular Order is incorrect. A confirmation will, in the absence of Manifest Error, be conclusive and binding on you, unless we receive an objection in writing within three (3) Business Days of receipt.
In order to be able to place a buy Order, you must provide us with Hashrate delivery instructions to direct your deliverable Hashrate, arising out of the Product your Order relates to, to the Mining Pool of your choice. Hashrate delivery instructions must be submitted through your Account by typing the relevant Mining Pool details for such Order on your Account, including
(the "Delivery Instructions")
In order to obtain Delivery Instructions, you will need to have an account with the relevant Mining Pool of your choice
Upon successful input of the Delivery Instructions, the Platform will automatically test the electronic link to the Delivery Instructions destination, and:
In order to be able to place a buy Order, you must have sufficient Omnes Credits available in your Account to pay for such Order. Upon successful placement of an Order, the corresponding amount of Omnes Credits for such Order will be deducted from your Account.
We may allow you to access and use one or more Electronic Platform Services.
Any Electronic Platform Service that we provide to you is for your personal use only and for the sole purposes, and subject to the provisions, of these Terms. You must not directly or indirectly provide, sell or lease any Electronic Platform Service, or any portion thereof, to any third party including your Affiliates without our prior written consent.
You will be responsible for providing the Access Method to enable you to access and use an Electronic Platform Service. You must test your Access Method prior to using it in a live environment and you will be responsible for any errors or failure as a result of the implementation of the Access Method.
You will be responsible for all Orders entered by you or on your behalf via the Electronic Platform Service and you will be fully liable to us for the settlement of any transaction arising from them.
We will have the right to suspend or permanently withdraw an Electronic Platform Service, by giving you ten (10) Business Days' written notice.
We will have the right unilaterally, without notice and with immediate effect:
where we consider it necessary or desirable to do so due to:
Your access and use of an Electronic Platform Service, or any part thereof, may be terminated automatically:
Where your access or use of an Electronic Platform Service has been terminated for whatever reason, you will upon our request return to us or destroy all hardware, software and documentation we may have provided you in connection with such Electronic Platform Service and any copies thereof.
We may provide the whole or part of an Electronic Platform Service under licence from third parties ("Third Party Electronic Platform Service"), including the Platform. You agree to comply with any additional restrictions on your access or use of a Third Party Electronic Platform Service that we may communicate to you from time to time, or that are otherwise the subject of an agreement between you and such licensors.
You use any Third Party Electronic Platform Services at your own risk.
It is solely your responsibility to evaluate the functionality of any such Third Party Electronic Platform Services before downloading or accessing them or entering into transactions with us using any Third Party Electronic Platform Services.
Third Party Electronic Platform Services are provided to you on an 'as is' basis, without any warranty, guarantee, representation or assurance of any kind, express or implied, including their suitability to you or their fitness for a particular purpose.
Each time that you access or use an Electronic Platform Service, you agree and warrant to us that you will:
ensure that your Access Method:
inform us immediately of any unauthorised access to such Electronic Platform Service or any unauthorised Order or instruction which you know of or suspect and, if within your control, cause such unauthorised use to cease;
not act in an unfair, abusive, manipulative, or unlawful way when using the Electronic Platform Service (including avoiding any security features of the Electronic Platform Service); and
You agree to comply with any requirements in relation to information technology, systems, protocols or standards that we have notified you from time to time in order for you to access or use any Electronic Platform Service.
This Clause 41 (Liability and indemnity) will apply to our Electronic Platform Services in addition to, and not in limitation or exclusion of, any other provisions in these Terms relating to the limitation of our liability and the provision of indemnities.
We will not be held liable for any claim, damages or other liability (including loss of funds, direct or indirect losses, data or service interruptions, delays, inaccuracies, errors and omission in data provided) whether in contract, tort or otherwise, arising from or in connection with:
other than as a result of our fraud, wilful default or gross negligence.
We will not be liable to you for any Losses which you may suffer as a result of transmission errors, technical faults, malfunctions, illegal intervention in network equipment, network overloads, malicious blocking of access by third parties, internet malfunctions, interruptions or other deficiencies on the part of internet service providers.
You acknowledge and agree that Electronic Platform Services may not be provided on a continuous basis and neither we nor any third party provider accept any liability in this respect.
We will not be liable for any Losses whatsoever arising from any unauthorised use of the Electronic Platform Service.
You will ensure that no computer viruses, worms, software bombs or similar items are introduced into our computer system or network and you will indemnify us on demand for any Losses that we suffer arising as a result of any such introduction.
You will on demand indennify, protect and hold us harmless from and against all Losses, judgements, suits, actions, or proceedings resulting from or arising out of any act or omission by any person using an Electronic Platform Service by using your designated passwords, whether or not you authorised such use.
You acknowledge that all proprietary rights in our Electronic Platform Services are owned by us and by any applicable third party licensors or third party service providers engaged by us, and are protected under copyright, trademark and other intellectual property laws and other applicable law. All intellectual property rights whether registered or unregistered relating to the Electronic Platform Services remain vested in us, our licensors, and our service providers (as the case may be). Except those set out in these Terms, you receive no intellectual property rights or other rights in or to any Electronic Platform Service,
We and our licensors will retain the intellectual property rights in all elements of the software and such software and databases contained within the Electronic Platform Services and you will not in any circumstances, obtain title or interest in such elements other than as set out in these Terms.
Any publicly registered internet protocol address assigned to you by Omnes in connection with the Electronic Platform Service will be used solely in connection with the Electronic Platform Service. In the event that the Electronic Platform Service is discontinued for any reason or these Terms are terminated, you will have no further right to use the internet protocol addresses.
You will preserve and not violate our proprietary rights (and those of our licensors and service providers) in the Electronic Platform Services and comply with our reasonable requests to protect our contractual, statutory and common law rights (and those of our licensors and service providers) in our Electronic Platform Services. You must notify us immediately if you are aware of any violation of such rights.
The charges and fees for our Services are set out on our Website. Charges and fees which are specific to certain Products are set out on our Website.
Unless otherwise specified under these Terms or otherwise agreed between you and us, all payments due and payable from you to us are due immediately upon our demand, and must be made by you and received by us in full and in cleared funds in our Payments Account.
You may effect payment to us in such Funds, as we may from time to time specify, or as may be available to you, as a payment option, on our Platform.
All payments from you will be made without any deduction or withholding.
Your payment to us of Funds may be subject to a minimum or maximum value per transaction. In the event you make a request for a payment of Funds that is below the minimum or above the maximum, your request will not be processed.
Your payment of Funds may be subject to fees or charges applied by:
and, we may deduct such fees and charges from your payment of Funds amount or charge them separately to your Account.
We do not accept payments of Funds from third parties (i.e. your payments must be made by you, through a payment method that is owned and controlled by you, belongs to you, and is in your name).
If you make a request for a payment of Funds and we:
your request will be rejected and the funds will be returned to their source. In such event, we will not be liable for any losses incurred as a result of the rejection and return to source. Our rejection does not extinguish nor waive your obligation to make a payment due to us or prevent the accrual of any interest.
We reserve the right to exercise all rights and seek all remedies that may be available to us.
In the event of actual or suspected error, fraud, unjust enrichment, money laundering, terrorist financing or other suspicious or irregular activity, as determined by us, in our sole discretion, or as notified to us by a third-party including our third-party payment service providers, whether directly or indirectly relating to any payment of Funds, we reserve the right to do one or more of the following:
If you make payment of Funds using a credit or debit card and you subsequently request a chargeback or cancellation, you will be liable for a chargeback or cancellation fee that may be applied by your payment provider. If we reasonably suspect your chargeback or cancellation request to be dishonest, we reserve the right to freeze any Omnes Credits on your Account until the chargeback or cancellation request is investigated by the relevant third-party payment service provider. If the relevant third-party payment service provider determines the chargeback or cancellation request to be dishonest, we reserve the right to do one or more of the following:
You acknowledge and agree that all payments of Funds to our Payments Account, effected by you, and received by us, in accordance with these Terms:
The exchange rate for the conversion of the relevant Funds currency into USD will be based on the bid or offer exchange rate. You acknowledge that exchange rates fluctuate and may change between the time that the indicative exchange rate is quoted and the time that the Funds are converted. The confirmation of the Funds conversion will show the exchange rate used. Where it is necessary to make a Funds conversion, you will bear all foreign currency exchange risk arising from any Product or Service or from the compliance by us with our obligations or the exercise by us of our rights under these Terms.
Omnes Credits are closed-loop and non-redeemable outside the Platform. Omnes Credits cannot be refunded, converted back into Funds, or further converted or redeemed in any way, other than for the purchase of Products or Services.
Omnes Credits bear a one to one (1:1) value equivalent to the USD.
In the event that you submit an Order to buy from us a Product, and have sufficient Omnes Credits in your Account, such Order may at your choosing, be executed by us by setting off the price of such Order from your Omnes Credits.
In the event that you submit an Order to sell back to us a Product, such Order will be executed by us by crediting to your Account Omnes Credits with an equivalent value of the price quoted to you for such sell back Order. All Orders to sell back to us Products will be settled in Omnes Credits, and will never be settled in any types of Funds.
If as a result of a technical or other error impacting the crediting of Omnes Credits on your Account, including without limitation, where you receive amounts of Omnes Credits above or below your entitlement, we reserve the right, without notice to you, to take steps to rectify error, including by amending the amount of Omnes Credits credited to and visible on your Account.
Unless specific calculation methods are otherwise specified under these Terms, we shall determine the appropriate calculation method and make all calculations under these Terms acting in good faith.
You represent and warrant to us on the date these Terms come into force, and on the date of each Order when placed, that:
these Terms are binding upon you and enforceable against you, and are not contrary to:
in asking us to execute an Order, you have been solely responsible for making your own independent appraisal and investigations into the risks of such Order, or that you have sought independent professional advice, and you have sufficient knowledge and experience to do so;
you are willing and able to assume the risks arising out of any Product that you purchase,
you are willing and able to assume the risks of any Order that you submit;
[you act as principal and sole beneficial owner in entering into these Terms and each Order and we are not acting as a fiduciary for, or an adviser, to you in respect of that Order;]
you are the sole beneficial owner of the Funds you pay us with for our Products and Services under these Terms;
any information you provide or have provided to us is complete, accurate, and not misleading;
no Event of Default or Potential Event of Default has occurred and is continuing with respect to you; and
you are in compliance with the Applicable Regulations to which you are subject, including all tax laws and regulations, exchange control requirements and registration requirements.
You undertake and warrant to us that:
You further represent, warrant, and undertake to us on the date these Terms come into force, and on the date of each Order when placed, that:
Except as expressly provided in these Terms, the Products and Services provided by us to you are provided ‘as is’ and Omnes and its suppliers, if any, make no warranty of any kind, express or implied, regarding the service, and specifically disclaim the warranties of merchantability fitness for a particular purpose, to the maximum extent possible by law. Omnes does not warrant that any Product or Service will meet your requirements, operate without interruption or be error free.
The following circumstances will constitute Events of Default, and each of the following is an Event of Default:
You agree to give us notice of any Event of Default immediately upon becoming aware of its occurrence.
If an Event of Default occurs in respect of you or your Account, we may at our absolute discretion at any time and without prior notice to you take any one or more of the following actions:
If an Event of Default occurs, we may at our absolute discretion not take any of the steps specified in 4.1 and allow you to continue to trade with us with or without additional restrictions or limitations.
For as long as an Event of Default or a Potential Event of Default with respect to you has occurred and is continuing, we will not be obliged to execute an Order or instruction in relation to a Product.
We will not lose any of our rights or remedies under or referenced in Clause 53 (Rights under an Event of Default) by reason of any failure or delay on our part in exercising them, and no such failure or delay will constitute a waiver of any such right or remedy. Any action taken or not taken by us in connection with or pursuant to any transaction at any time after the occurrence of any Event of Default (whether or not we have knowledge of such event) will be entirely without prejudice to our right to take or not take any similar action or to refuse to take any further action at any time thereafter, and does not in any circumstances constitute as a waiver of that right or any other rights or remedies of ours should any such Event of Default have occurred.
Unless required by Applicable Regulations, you or us may terminate these Terms (and the relationship between us) without cause by giving ten (10) Business Days prior written notice.
Upon the termination of these Terms, all amounts payable by you to us will become immediately due and payable including:
Upon termination of these Terms, without cause, by us, such termination will not affect any of your or our rights and obligations under these Terms which are then outstanding, and the active Products and Omnes Credits will continue to be governed by these Terms until all obligations have been fully performed.
Neither we nor our employees, directors, agents, officers, representatives or Affilates (including any employees, directors, agents, officers, or representatives of our Affiliates) will be liable for any Losses, whether arising out of negligence, breach of contract, misrepresentation or otherwise, incurred or suffered by you under these Tennis (including any Order or Product) unless such Losses are a reasonably foreseeable consequence and arise directly and solely from our or their respective gross negligence, wiful default or fraud.
In no circumstance, will we have liability for losses suffered by you or any third party for any special or consequential damage, loss of profits, loss of goodwill or loss of business opportunity arising under or in connection with these Terms, whether arising out of negligence, breach of contract, misrepresentation or otherwise.
Without limitation to Clauses 561 and 56.2, we do not accept any liability for:
The exclusions of, and limitations to, our liability set out in this Clause 56 (Exclusion and limitation of liability) are in addition to any other exclusions and limitations of our liability set out under these Terms, including Clause 41 (Liability and indemnity).
Nothing in these Terms will limit our liability for death or personal injury resulting from our negligence.
Nothing in these Terms will exclude or restrict any duty or liability we may have to you, which may not be excluded or restricted under Applicable Regulations.
You will pay to us such sums as we may from time to time require in or towards satisfaction of any debit balance on any of your Accounts with us.
You will pay to us, on a full indemnity basis, any losses, liabilities, damages, costs, claims, expenses (including legal fees and administrative costs for any legal proceedings, investigatory actions or debt collection), fines, penalties, taxes, imposts, any other fees and levies which we may incur or be subjected to with respect to:
The indemnities provided by you in this Clause 57 (Indemnity) are in addition to, and not in limitation or exclusion of, any other indemnities provided by you under these Terms, including Clause 41 (Liability and indemnity).
These Terms are supplied to you in English and we will continue to communicate with you in English for the duration of these Terms. You may receive documents and other information about us in other languages. If a document is translated into another language, this will be for information purposes only and the English version will prevail in the event of a conflict or inconsistency.
Any notice given under these Terms must be in writing and may be made by electronic means (including email and via the Platform), delivered personally, or sent by prepaid recorded delivery of registered post, or registered airmail in the case of an address for service outside Switzerland.
Notice will be considered to have been served:
Any notice, instruction or other communication which we sent to you via e-mail will be sent to the email address you have registered with us. You must notify us immediately of any changes to your email address.
Each notice, instruction or other communication to you (except confirmations, statements of Account, or notice of amendment to, or termination, of these Terms) is conclusive unless you provide us with a written objection within five (5) Business Days' of the date on which such document was dispatched. You will notify us promptly of a change to your address, telephone number, or email address.
The rights and remedies provided under these Terms are cumulative and not exclusive of those provided by Applicable Regulations. We are under no obligation to exercise a right or remedy. A failure or delay by us in exercising our rights under these Terms (including in relation to an Order, Product or Omnes Credits) or otherwise is not a waiver of such right or remedy. No single or partial exercise of a right or remedy will prevent further exercise of that right or remedy or the exercise of another right or remedy.
Where we reasonably consider that an exceptional event specified in Clause 61.2 has occurred or is occurring, we may make take one or more of the following steps without giving you notice and without being liable to you for any Losses that you may suffer as a result:
An exception event is:
We have the right to amend these Terms at our sole discretion. If we make any material change to these Terms, we will give you at least five (5) calendar days' written notice to you. Such amendment will become effective on the date specified in the notice. If you object to an amendment, please provide us with written notice within ten (10) calendar days' of the notice of such amendment and we will attempt to resolve the issue to the extent reasonably practicable. If we are unable to come to a satisfactory solution, we may terminate these Terms and our relationship at our sole discretion. Unless we notified you otherwise, an amendment will not affect any outstanding Order, your Products or any legal rights or obligations which may already have arisen.
A person who is not a party to these Terms has no rights under these Terms.
Outstanding rights and obligations (including the exclusions and limitations of our liability, the indemnities you provide to us, Clauses in this Part 11 (Miscellaneous)), active Products (unless otherwise provided) will survive the termination of these Terms and will continue to be governed by these Terms and the particular clauses agreed between us in relation to such Positions until all obligations have been fully performed.
All Policies, in force from time to time, form part of the Agreement. By accepting, or having been deemed to accept, these Terms you confirm that you have read and understood the Policies and accept the Policies.
We may amend the Policies from time to time at our discretion. An amendment to a Policy will be reflected on the available version of such Policy on our Website. You are deemed to have accepted the amended and restated Policy after ten (10) calendar days' of its posting on our Website.
If you object to a Policy, please provide us with written notice within ten (10) calendar days" of an update of such Policy and we will attempt to resolve the issue to the extent reasonably practicable. If we are unable to come to a satisfactory solution, we may terminate these Terms and our relationship at our sole discretion.
If you are a partnership, or otherwise comprise more than one person, your liability under these Terms will be joint and several along with such other person. In the event of the death, bankruptcy, winding-up or dissolution of one or more of such persons (but without prejudice to the foregoing or our rights in respect of such person and their successors) the obligations and rights of all other connected persons under these Terms will continue in full force and effect.
These Terms will be for the benefit of and binding upon you and us, and our respective successors and assignees. You must not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer your rights or obligations under these Terms or an interest in these Terms, without our prior written consent. Any purported charge or transfer in breach of this clause 67 (Assignment) will be void. You must not allow a trust to be declared over any of your rights under these Terms without our prior written consent.
Subject to FINMA Rules, we may delegate the performance of our obligations to an appropriate third party. Such delegation will not affect our obligations under these Terms. We will be entitled to assign all or part of our benefits or rights under these Terms without your consent.
We will treat all information we hold about you, your Account and your Products as confidential, even when you are no longer a client. You permit and authorise us to disclose this information to:
To the extent permitted under the Applicable Regulations and without prejudice to any other rights to which we may be entitled, we have the right to set-off or deduct any Funds or Obligation arising from these Terms, or otherwise, that you owe us or our Affiliates:
If you have more than one Account, we will have the right to set-off or deduct any Funds or liability that you owe us under one Account, from the Omnes Credits available in your other Accounts, or from the proceeds of Omnes Credits arising from the cancellation of Products in your other Accounts, in accordance with Clause (b).
If, at any time, any provision of these Terms is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these Terms nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
You agree that we may record all video call meetings, telephone conversations or any communications by other means between you and us (including face to face meetings) without use of a warning tone, and use such recordings, or transcripts of such recordings, as well as any emails, recorded chat messages or other communications you send to us for training purposes, for the purposes of investigating any complaint you may make, or for any other legal or regulatory purposes including as evidence in any dispute or anticipated dispute between you and us. We will retain records of recorded all video call meetings telephone or any communications by other means for the duration required by Applicable Regulations. Such records will be our sole property and accepted by you as evidence of the Orders or instructions given. We will provide a copy of such records to you within a reasonable period of your request and may charge a fee for such provision of records. We may use such recordings and other records as evidence in court or other proceedings.
Our records will be evidence of your dealings with us in connection with our services. You will not object to the admission of our records as evidence in any proceeding because such records are not originals, are not in writing or are documents produced by a computer. You will not rely on us to comply with any of your record keeping obligations, notwithstanding the fact that records may be made available to you on request in our sole and absolute discretion.
You agree to keep adequate records in accordance with Applicable Regulations to demonstrate the nature of Orders submitted and the time at which such Orders are submitted.
You agree to co-operate with us to the full extent possible in the defence or prosecution of any legal or regulatory proceedings.
The Agreement comprises the entire agreement between the Parties relating to the subject matter hereof and either Party acknowledges that it has not entered into the Agreement relying on any representation, statement or agreement, whether oral or in writing, other than those expressly incorporated in the Agreement.
These Terms and all non-contractual obligations and other matters arising from them or in connection with them will be governed by and construed in accordance with the laws of Switzerland.
Subject to Applicable Regulations, each of the Parties irrevocably:
If you are situated outside Switzerland, process by which any Proceedings in the Switzerland are begun may be served on you by being delivered to your registered address in Switzerland. This does not affect our right to serve process in another manner permitted by law.
In these Terms, the following words and expressions will, unless the context otherwise requires, have the following meanings:
"Applicable Regulations" mean:
"Appropriateness Assessment" has the meaning given to it in Clause 13.1;
"Authorised Individuals" means the individuals that:
“Bank Account” means a bank account registered and maintained under our name and operated by us;
“Bitcoin” means the network and software protocol comprising the Bitcoin Blockchain;
“bitcoin” means the name of the currency unit (the coin) of the Bitcoin Blockchain and “BTC” will be construed accordingly;
“Block” means a grouping of Bitcoin Blockchain transactions, marked with a timestamp, and a fingerprint of the previous Block;
“Blockchain” means a list of validated Blocks, each linking to its predecessor all the way to the genesis Block;
“Block Reward” means an amount of bitcoin (BTC) included in each new Bitcoin Block that is awarded to the Miner or Mining Pool whose Mining activity leads to finding such new Bitcoin Block by finding the Nonce;
"Business Days" means any day other than a Saturday, Sunday or a public holiday in Switzerland;
"Corporate Entity" means a person who is a firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
“Delivery Instructions” means Hashrate delivery instructions in accordance with Clause 35.1;
"Digital Asset" means digital assets, such as, for example Tether (USDT) or bitcoin (BTC);
“Digital Asset Account” means a Digital Asset address or account;
"Electronic Platform Services" means an electronic service (together with a related software or application) accessible by the Platform or other means we offer to you, including for trading, electronic access, order routing, API or information services, and market data that we grant you access to or make available to you either directly or through a third-party service provider and used by you to view information or effect Product transactions through Account (and "Electronic Platform Service" will mean any of those services). For the avoidance of doubt, Electronic Platform Services will include Third Party Electronic Platform Services;
“Hash” means an encrypted fixed-length string of bits generated using the secure hash algorithm (SHA) 256D that serves as a digital fingerprint for authenticating and identifying Blocks on the Bitcoin Blockchain (and “Hashes” in plural, and the verb “Hashing”, will be construed accordingly);
“Hash Price” means the price of one or more Hash, at any given time;
“Hashrate” means a measure of the computational power expressed in units of Hash calculations per second;
"Hashrate Seller" means a person that sells to us to Hashrate from time to time;
“HOD” means the ‘Hashpower On Demand’ Product as described in the relevant Schedule;
"Event of Default" has the meaning given to it in Clause 52.1;
"FINMA" means the Swiss Financial Markets Supervisory Authority and its predecessors and successors;
"FINMA Rules" means the rules of FINMA as from time to time varied, amended or substituted by FINMA;
“Funds” means one or a combination of Digital Assets and fiat currency;
"Losses" means all direct and indirect liabilities, damages, costs, claims, expenses, fines, penalties and any other losses;
"Manifest Error" has the meaning given to it in Clause 26.1;
[“Mobile App” means the mobile application [Omnes] available for download on the Apple AppStore, the Google Play, or our Website;]
“Mining” means directing Hashrate towards Bitcoin’s Proof of Work by way of continuous and repeated Hashing in order to produce the Hash that contains the Nonce of the next Block on the Bitcoin Blockchain and earn the Block Reward;
“Mining Pool” means a Mining approach where multiple Miners contribute Hashrate towards Mining and then split the Block Reward pro rata to the contributed Hashrate or in such other way as prescribed by the Mining Pool;
“Miner” means a Node that carries out Mining;
“Node” means a device running the Bitcoin protocol and connected to other Nodes on the Bitcoin Blockchain;
“Nonce” is a 32 bit (4 byte) filed in a Bitcoin Block whose value is set to that the Hash of the Block will contain a leading number of zeros (the rest of the fields may not be changed as they have a defined meaning);
“ODM” means the ‘Omnes Digital Miner’ Product as described in the relevant Schedule;
“ODM Monthly” means the ‘Omnes Digital Miner Monthly’ Product as described in the relevant Schedule;
"Obligations" means obligations present or future, actual or contingent or prospective, owing or which may become owing by you to us under any transaction, or obligations designated by us for these purposes in writing;
"OmnesGroup" means Omnes and its Affiliates;
“Omnes Credits” has the meaning given to it in Clause 45.1;
"Order" means an instruction to buy a Product;
"Party" means you or Omnes, and "Parties" means you and Omnes as parties to the Agreement;
“Payments Account” means our Digital Asset Account or our Bank Account;
"Platform" means the Omnes platform accessible through the Website or [Mobile App];
"Policies" means the policies and other terms and conditions that we adopt from time to time, as amended, which are available on our Website, including the [AML Policy],[Cookies Policy], [Privacy Notice], and [Website Acceptable Use Policy];
"Potential Event of Default" means any event which may reasonably become an Event of Default with the passage of time, the giving of notice, the making of any determination, or any combination of the above;
“Proof of Work” means a piece of data that requires significant computation to find;
"Products" means those products and instruments in respect of which we provide Services from time to time;
"Risk Disclosure" means the disclosure of risk described in Clause 4 and any additional disclosure on our Website;
"Restricted Countries" means countries and jurisdictions in which clients are domiciled or resident where we may not provide our Services due to restrictions under Applicable Regulations or restrictions under our Policies;
"Schedule" means a schedule to these Terms;
"Services" means the services described in these Terms and any other services we may provide from time to time. For the avoidance of doubt, Services include Electronic Platform Services;
"Terms" means these terms and conditions, as they may be amended from time to time;
"Third Party Electronic Service Agreement" has the meaning given to it in Clause 39.1;
“Uptime Guarantee[PD1] ” means an uptime guarantee for a specific Product as reflected on our Platform;
“USD” means the United States Dollar, a fiat currency, that is the lawful currency on the United States of America;
"Website" means the information displayed on www.omnes.io (or any other replacement or supplementary site), as updated by us from time to time.
[PD1]INTERNAL JJ: What about our uptime *guarantees*? How *guaranteed* are they? If it were up to me I would list projected uptime on the portal but not guarantee anything (😉). The maze of legalese here makes me unsure what the case is.
Once again regarding hashrate, the system tracks the total to be delivered rate (which is essentially the amount of seconds between the start and the end of the contract, multiplied by the hashrate per second), how much has been delivered so far, and how much it still has to deliver in in the remaining seconds. It uses the latter to continuously set a new target hashrate that it will attempt to reach.
The result of that is, imagine we have a 10 PH/s contract for 10 days, it may deliver 5.5 PH/s the first 5 days and 4.5 PH/s the last 5, which is the same amount of total hash. We cannot guarantee any level of precision in any of that, because we do not have the granularity in incoming hashrate to do that (nor would we have it if we were using individual miners rather than starting out with NiceHash). Additionally, the contract will stop when the total amount has been delivered. This could be in 9 days, or 11 days, depending on circumstances. All of that needs to be covered extensively. Such a thing might also influence uptime metrics, depending on how they are calculated, which might need to be defined.
Hash price is defined in the document as the price for one or more hash, at any given time. While that is not incorrect, how does it relate to hash price we show on the dashboard? A common metric for that is $/PH/day, not sure what we display and where, or if these need to be in sync?
Furthermore we should discuss the nature of hashrate. There is not such a thing as delivering hashrate in the first place, it is an imaginary construct by a reverse statistical function based on the number of and difficulty of submitted hashes (*"shares"*). (extremely simplified example: if you throw a dice X times, and tell me you rolled a 1 22 times, I would assume your throw-rate X = 22 * 6 because a dice is six-sided, but I do not *know* your throw-rate, nor can I deliver X throws, I can only deliver Y solutions).
Obviously the distinction doesn't matter to your average end-user, but maybe it would in court ?
Furthermore, what needs to decided both in the practice of our solution and the legal, is the difference between accepted and rejected shares, and whether we count rejected shares towards the delivered hashrate, or in which circumstances we do and do not.
References in these Terms to a statute or statutory instrument or Applicable Regulations include a modification, amendment, extension or re-enactment thereof, as in force from time to time. A reference in these Terms to “document” will be construed to include an electronic document.
References in these Terms to the singular will also include the plural.
References in these Terms to a person includes a body corporate, unincorporated association and partnership, natural person, firm, company, corporation, government, state or agency of a state or an association or partnership (whether or not having separate legal personality) of two or more of the foregoing.
The use of the word “including”, “inclusive”, “includes” and any words that follow it will not be deemed to be exhaustive.
This Schedule A sets out the additional terms that will apply to you when you buy ODM from us. Capitalised terms used in this Schedule A have the meanings ascribed to them in Clause 79 unless such capitalised term is defined within this Schedule A context requires otherwise. If a provision of this Schedule A conflicts with or differs from a provision in another part of these Terms, the provision in this Schedule A will prevail to the extent necessary.
The ODM Product is a type of deliverable Hashrate product. We sell to you, and you purchase from us, a pre-defined amount of Hashrate, for a pre-defined period of time.
Once an ODM Product is active, you will be able to track on the Platform:
ODM pre-defined amount of Hashrate
ODM pre-defined period of time
Buy Orders
Sell back Orders
This Schedule A sets out the additional terms that will apply to you when you buy ODM from us. Capitalised terms used in this Schedule A have the meanings ascribed to them in Clause 79 unless such capitalised term is defined within this Schedule A context requires otherwise. If a provision of this Schedule A conflicts with or differs from a provision in another part of these Terms, the provision in this Schedule A will prevail to the extent necessary.
The ODM Product is a type of deliverable Hashrate product. We sell to you, and you purchase from us, a pre-defined amount of Hashrate, for a pre-defined period of time.
Once an ODM Product is active, you will be able to track on the Platform:
ODM pre-defined amount of Hashrate
ODM pre-defined period of time
Buy Orders
No sell back Orders
Loss of Hashrate on failure to pay Monthly Service Fee
This Schedule C sets out the additional terms that will apply to you when you buy HOD from us. Capitalised terms used in this Schedule C have the meanings ascribed to them in Clause 79 unless such capitalised term is defined within this Schedule C context requires otherwise. If a provision of this Schedule C conflicts with or differs from a provision in another part of these Terms, the provision in this Schedule C will prevail to the extent necessary.
The HOD Product is a type of deliverable Hashrate product. We sell to you, and you purchase from us, a pre-defined amount of Hashrate, for a pre-defined amount of Omnes Credits to be deployed, for such un-defined period of time as the pre-defined Omnes Credits can purchase, on an on-going basis, the pre-defined amount of Hashrate at un-defined and fluctuating Hash Prices.
Once an HOD Product is active, you will be able to track on the Platform:
HOD pre-defined amount of Hashrate
HOD pre-defined amount of Omnes Credits to be deployed
Buy Orders
Sell back Orders