1. GENERAL POINTS
Swiss Funding Sàrl thanks you for visiting their website www.swissfunding.ch
The following general terms and conditions ToU govern the use of the Site and the services offered by Swiss Funding Sàrl.
By accessing the Site, you the USER indicate your agreement with our Terms. If you do not accept our ToU, please refrain from accessing the Site and using the Services.
The use of certain specific Swiss Funding services may be subject to special conditions ("Special Conditions"), which will become an integral part of these Terms once accepted. In the event of a conflict between a provision of the ToU and the Special Conditions, the latter shall prevail.
'You' and 'Your' refer to the User.
Access to the Site and the use of the Services are open to persons over 18 years of age with full exercise of their civil rights.
The content of the Site and the Services are intended for use or distribution by individuals or commercial entities whose legal systems, or in countries that do not prohibit or restrict their distribution, publication or use by legal provisions or regulations. Individuals or commercial entities that are subject to such limitations, whether on the basis of their nationality, domicile or for any other reason, are prohibited from accessing the Site, using the Services or making any investments through it.
b. No guarantees
Use of the Site is at your own risk. The Site is offered to you 'as is' and 'as available'. Therefore, Swiss Funding offers no guarantee. And in particular, Swiss Funding does not guarantee that
- The Site and the Services are in accordance with your requirements;
- The Site and its contents are exhaustive, accurate, precise, reliable, up-to-date and do not infringe the rights of any third party;
- access to the Site will not suffer any interruption or error, or is guaranteed without viruses;
- faults will be corrected
- the Site is secured;
- Any advice or opinion from Swiss Funding through this Site is accurate and reliable.
The Services and information on the Site are subject to change or deletion without notice.
c. No offer, advice or guarantee
Any information available on the Site (financial forecasts, returns on investments, etc.) does not constitute an offer or advice or recommendation to take out a Loan from Swiss Funding. It can not be interpreted as creating a legal relationship, including mandate, between Swiss Funding and a User nor as a guarantee of a return on investment.
d. Cooperation with the competent authorities
Swiss Funding will cooperate with any competent authority (including tax authorities), upon request, in their investigations into allegations of unlawful acts concerning Users and/or the use of the Site or Services.
e. Exclusion of liability
To the extent permitted by law, any liability of Swiss Funding, its bodies, agents and representatives relating to access to the Site and the use of the Services is excluded.
a. Single registration
Access to the Services is conditional on the creation of an account specific to each User ("Account"). You agree not to create or use more than one account, whether under your own identity or that of a third party.
By creating an Account, you guarantee that all information you provide in connection with the Account is true. If the Account is created in the name of a legal entity, you further guarantee that you have the power to represent that legal entity.
You agree to compensate Swiss Funding and its bodies, agents and representatives against all liabilities, losses, damages, claims, penalties, fines, costs and expenses, including, without limitation, attorney's fees and court costs, which may arise from:
- your use of the Site and the Services, including, without limitation, any content, as well as your connection to the Site
- your non-compliance with any provision of the ToU
- any claim by any third party that any of your content or any other use of the Site by you violates any intellectual property right, personality right or right to privacy of that third party or has caused damage to others by any other way
- any unlawful, illegal or immoral behaviour on the Site.
d. Security of access information
Account access information (username and password) must be kept confidential. You are solely responsible for actions taken through your Account, including when used by a third party, as soon as your access data is used. You agree to notify us immediately if a third party has improperly accessed your Account, or if the security of that Account is compromised in any other way.
e. Confidentiality policy
As regards the entry and processing of personal data, Swiss Funding is subject to Swiss data protection legislation. For more information, please see our Data Protection Policy ("Policy"), which is an integral part of the ToU.
f. Swiss Funding Communications Processing - Email Security
When communicating with Swiss Funding via e-mail, you must take into account that the protection of e-mail messages sent over the Internet is not guaranteed. Therefore, by sending important or confidential, non-encrypted messages by e-mail, you accept the risks of this uncertainty and the possible lack of privacy of the Internet. Any communication sent to Swiss Funding by e-mail will be considered non-confidential.
Swiss Funding may, in its sole discretion and without liability, terminate the ToU vis-à-vis a User. Termination of the Terms may result in the deletion of the User Content (as defined below) and all data from the User concerned. Swiss Funding reserves the right to retain the User Content (as defined below), as well as any data relating to the User concerned when required by law or any other applicable rule, for as long that obligation remains.
a. Right to use the Services
Swiss Funding grants you a limited, nonexclusive, nontransferable and voidable right to access the Site and use the Services, provided you are eligible for and comply with the ToU.
b. Nature and functioning
Swiss Funding operates a platform linking real estate project developers who want to raise funds (each "Project Owner”) through a crowdfunding campaign ("Campaign") and people wishing to finance such projects (each financier "Contributor") by lending a sum of money ("Loan"). If the Loan proposal of a Contributor is accepted by the Project Owner at the end of a Campaign, a contractual relationship is created between the Contributor and the Project Owner directly, without Swiss Funding being a party to it.
In general, you understand that any commercial transaction, and the obligations arising from a contract, entered into between you and other Users do not concern Swiss Funding. You acknowledge and agree that Swiss Funding can not be held liable for any resulting damage.
Contributors make their funds available directly to Project Owners. Swiss Funding does not accept funds on deposit or trade in shares or securities at any time in connection with projects listed on the Site (whether in its name or on behalf of third parties). Swiss Funding does not issue any shares or securities directly and does not act as an intermediary in the trading of shares or securities.
Proposed Loans are made directly and exclusively by the Project Owner. When required by law, Project Developers must create and issue an issue prospectus within the meaning of Article 1156 of the Swiss Code of Obligations ("CO"). Swiss Funding is neither the creator nor the distributor of this issue prospectus and assumes no liability in this regard.
Art. 1156 CO
1 The bonds of a loan can be put in public subscription or introduced on the stock exchange only on the basis of a prospectus.
2 Prospectus provisions for issuing new shares are applicable by analogy; in addition, the prospectus must specify the details of the conditions of the loan, in particular with regard to interest, repayment, special guarantees provided for the bonds and, where applicable, representation of the community of creditors.
3 Where bonds have been issued without a prospectus in accordance with the foregoing provisions, or where the prospectus contains inaccurate representations or indications contrary to the requirements of the law, the persons who have contributed thereto are jointly and severally liable for the damage caused by them intentionally or negligently.
c.1 Introductory remarks
Swiss Funding receives many proposals for Campaigns that may compete. Swiss Funding reserves the right to refuse a Campaign proposal without giving reasons. In particular, Swiss Funding will refuse a Campaign which, in its sole opinion:
- is fanciful and / or devoid of seriousness;
- promotes or involves actions that are unlawful or contrary to morals;
- is likely to cause damage (including financial or reputational damage) to Swiss Funding or third parties; or
- is based on information the veracity of which could not be demonstrated to Swiss Funding’s satisfaction.
On the other hand, Swiss Funding gives no assurance or guarantee as to the viability or success of the Campaign, on the one hand, and the real estate project that it is for, on the other.
In addition, Swiss Funding is not subject to any obligations which in any way would limit its activity or prevent it from using the content of a Campaign proposal in the course of its business, in particular regarding accepting competing projects for a Campaign proposal.
c.2 Minimum amount
The realization of a Campaign may be conditional on a minimum amount ("Minimum Amount") being raised before its term.
c.3 Campaign proposal (Prospectus)
The Project Owner submits a campaign proposal to Swiss Funding.
In their Campaign Proposal, the Project Owner must describe, in a complete and fair manner, the project, the intended use of the sums they are applying for, and the manner in which they intend to repay them. In the cases required by law, the Campaign shall include an issue prospectus within the meaning of Article 1156 CO and the documents and information of all material aspects of the investment, as determined at any time ("Prospectus") . Project Owners are expressly informed that the absence or shortcoming of the Prospectus may result, among other things, in the liability of the Project Owner, their directors and the persons involved in the preparation of the Prospectus or an obligation for the Project Owner to obtain an authorization under the Banking Act.
c.4 Publishing a Campaign on the Site
Swiss Funding will decide at its sole discretion which information related to the Campaign will be published on the Site. This information will include
- a description of the real estate project (text, photos, site plan, construction plans, etc.),
- the full amount of financing desired by the Project Owner, indicating, where applicable, the Minimum Amount,
- as well as the financing period, ie the opening date of the loan subscription period until its expiry date.
Although Swiss Funding makes every effort to gather complete and truthful information, it does not guarantee the completeness or accuracy of the information provided in any Campaign or Prospectus. The use of document templates made available to the Project Owners, respectively their adaptation to a concrete situation and/or publication on the Site is the sole responsibility of the Project Owners. Swiss Funding assumes no liability in connection with any documents or information published as part of a Campaign or in a Prospectus.
c.5 Respect for laws
It is the responsibility of the Project Owner to ensure that the Campaign and its implementation comply with applicable laws and regulations and that it holds all necessary rights - including intellectual property rights - and authorizations - including building permits - to publish the content of the Campaign and implement it.
By submitting a Campaign proposal, the Project Owner agrees that its content is published on the Site and made available to Users.
c.7 Suspension and cancellation of a Campaign
d. Payment for Services
Accounts are free to create. Swiss Funding does not charge the Contributors anything. The cost of the Services is covered by fees owed by the Project Owner and by the deduction of a portion of the Loans amount (“Payment”). As Payment, the Project Owner pays Swiss Funding:
- CHF 2'000 for publishing the Campaign on the Site andt
- CHF 8'000 and 5% of the total Loans at the end of the Campaign, subject, where applicable, to raising the fixed Minimum Amount. If the Campaign is withdrawn for a reason attributable to the Project Owner, the Payment remains due by the Project Owner as if the Campaign had been successful.
The Swiss Financial Market Supervisory Authority ("FINMA") has assessed (decided) our business model and concluded that our business is not subject to Swiss law on collective investment schemes, stock exchange and securities trading law, the Banking Act and the Anti-Money Laundering Act. We are therefore not supervised by FINMA or any other regulatory authority in Switzerland or abroad. As soon as the amount of the campaign exceeds CHF 1 million, it can only be financed by a maximum of 20 investors. According to the FINMA regulations
f. Suspension of Services
Swiss Funding reserves the right to prohibit (eg by deleting the relevant content and/or restricting or prohibiting access to the Site or the Services) any act that we deem inappropriate and/or that we consider to be contrary to the law or is prohibited by applicable laws and regulations. This will include (but is not limited to) posting or transferring unauthorized information on the Site, including any content that we believe may be detrimental to, prejudicial to, or infringe upon any system or security network of the Site or third parties, or to contain defamatory, racist, obscene, threatening, pornographic or otherwise illegal. We further reserve the right to restrict, suspend or delete an Account or access to the Site and/or Services without notice if the ToU are violated.
5. OBLIGATIONS OF THE PROJECT OWNER
a. Commitment to Contributors
The Project Owner commits themselves to the Contributors according to the terms of the loan relationship created between them. The Project Owner undertakes to do everything in their power to carry out the real estate project as presented during the Campaign and to repay the amounts lent. They undertake to update the information concerning the Campaign and to inform the Contributors, regularly and in all honesty, of the progress of the project and its financing.
b. Escrow account
Once the Campaign has been validated by Swiss Funding, the Project Owner opens an escrow account ("Escrow Account") with an approved banking institution ("Bank") to receive the funds contributed by the Contributors during the Campaign. The Bank may be recommended by Swiss Funding or, if the Project Owner chooses a Bank of its choice, the latter undertakes to define the fund release process in agreement and in close cooperation with Swiss Funding. The Escrow Account and the mission of the Bank must be maintained throughout the Campaign and until full repayment of the Loans (capital and interest) to the Contributors. Swiss Funding will have a right to consult the Escrow Account so that it can monitor the amount of Loans paid. The contributors, as a guarantee, will pay the amount fixed during the campaign as soon as the campaign has been completed. As stipulated in ToU Art. 4 point b once campaign is successful, a contractual relationship is created between the Project Owner and the Contributor.
c. Promotion of the Campaign
During the Campaign, Swiss Funding is committed to ensuring the communication of the Campaign to Users, including through the Site, social networks and newsletters. The Project Owner agrees to do the same, especially through its website and any other useful communication channel. Any communication about the Campaign by the Project Owner must mention the address of the Site (www.swissfunding.ch) and Swiss Funding’s logo.
d. Respect of laws - Taxes and fees
The Project Owner undertakes to respect all laws and rules that apply to it. They are solely responsible for taxes, fees, charges and other contributions from receiving the Loan.
6. OBLIGATIONS OF THE CONTRIBUTOR
a. Duty of diligence
Contributors alone assume the decision to take part in or give up a Campaign. They ask all the questions and ask for any information they deem necessary before making a loan offer. Swiss Funding strongly recommends that Contributors refrain from relying solely on the information provided during a Campaign and to be advised by professional representatives.
b. Risks and profits
Loans are granted voluntarily and at the risk and profit of the Contributor alone. When formulating a loan offer, the Contributor declares to be aware of the fact that it is taking part in the financing of a project that involves certain risks, in particular delays and/or default in repayments that may lead to the total loss of the Loan.
The Contributor ensures that the Loan is adequate in relation to its financial situation, objectives, experience and operational and financial resources. Only the Project Owner is bound by their commitments to the Contributors.
Swiss Funding does not guarantee that the Campaign will reach the Minimum Amount, nor that the Project Owner will use or repay the Loans according to their commitments.
c. Respect of laws - Taxes and fees
The Contributor undertakes to respect all laws and rules that apply to it. They are solely responsible for the tax treatment of their Loans.
If a Contributor decides to offer a Loan, it must return the Subscription Form and any other duly signed Contract Documents ("Documents") and pay the Loan Amount into the Account and within the time period specified by the Campaign. No proposal will be considered until the receipt of the Documents and the amount of the Loan on the Account.
b. Acceptance by the Project Owner
The Project Owner may reject the loan proposal in whole or in part without giving reasons. In the event of a full refusal, any amount paid into the Account by the Contributor will be returned to them without interest. In the event of partial rejection, the Documents will be considered as corresponding to the amount accepted by the Project Owner and any excess amount paid into the Account will be returned to the Contributor without interest.
c. Conditions of the Loan
If a Contributor’s subscription is accepted by the Project Owner at the end of the Campaign, the loan is concluded under the conditions described in the Documents (including, where applicable, the Prospectus).
If the Loan is not taken into consideration, any amount paid into the Account will be returned to the Contributor without interest. This will be particularly the case if a Minimum Amount is not reached, or if a Campaign must be cancelled.
e. Tracking deadlines
Swiss Funding may, but is not obligated to, track repayments with the Project Owner. The Contributors give Swiss Funding a mandate, in the event of late payments, to perform, on their behalf and for their account, the following acts:
- request information from the Project Owner on the status of the project and the reasons for the delay,
- remind the Project Owner of their obligation to repay,
- analyse the financial position of the Project Owner, and / or d) propose suitable solutions or repayment plans. Costs related to these steps may be charged 100.- per hour to the Project Owner at fault as additional damage.
f. Dispute between the Contributors and Project Owner
Only the Project Owner is bound o the Contributors. If a Project Owner can not make a commitment (especially with respect to the obligation to repay), he will immediately and openly inform the Contributors of the situation through the Site, detailing the work that has been done, how the Loans have been used and the reasons why the commitment can not be upheld. In addition, he will endeavour to reach a mutually acceptable solution with the Contributors. Swiss Funding may - without obligation - assist the Project Owner and the Contributors in their discussions. If deemed useful, Swiss Funding may also provide Contributors with the contact details of the Project Owner or link them with a debt collection company or legal adviser. As a last resort, it is up to each Contributor, under his sole responsibility and at his own expense, to take legal action or enforcement action against the Project Owner.
8. INTELLECTUAL PROPERTY RIGHTS
a. User Content
The Services allow you to publish photographs, drawings, videos, texts, logos, works, as well as other audio and/or visual creations ("User Content"). By posting User Content on the Site, you guarantee that the User Content and the use of the User Content do not violate the rights of a third party (copyright, trademark law, etc.), nor your potential commitments to third parties (confidentiality obligation, non-competition, etc.), nor the ToU. The Project Owner grants Swiss Funding a worldwide, non-exclusive, irrevocable and perpetual license, free of royalties or other indemnities, sub-licensable - notably to Users for the purposes set out in the ToU - and transferable allowing it to use, commercially exploit , publicly display, store, reproduce, modify, create derivative works and distribute User Content.
Subject to a written refusal by the Project Owner, Swiss Funding may use, reproduce and publish on the Site, for referencing, promotion and marketing purposes only, the name, company name, registered or figurative trademark, whether or not registered, of the Project Owner and any intellectual property rights thereto after the end of the Campaign. The Project Owner grants Swiss Funding a worldwide, non-exclusive, irrevocable and perpetual license, free from royalties or other indemnities in this sense, even in the event of termination of the ToU.
b. Third party Content
Copyright and other intellectual property rights concerning the photographs, drawings, videos, texts, logos, works, as well as other audio and/or visual creations present on the Site, which you have not published ("Content") are the property of Swiss Funding or are used with the permission of the respective owner. Nothing on the Site has been designed for the purpose of granting you any license or right of use on any Third Party Content. Swiss Funding and the respective owner retain all rights in the Third-Party Content.
Except as provided in the ToU, any use of the Third Party Content by you is strictly prohibited. No reproduction of any part of the Site may be sold or distributed for any commercial purpose, nor may it be modified or incorporated into any other work, publication or any other website.
Links on the Site may direct to sites that are not owned or controlled by Swiss Funding. The inclusion of a link to other websites does not imply endorsement by Swiss Funding. Access to these third party sites is at your own risk and under your sole responsibility. Swiss Funding accepts no responsibility for the content, accuracy or operation of these third-party sites. We recommend that you read the legal notices and the privacy notice of all other sites you visit carefully.
In case you wish to link to the Site, you expressly agree to:
- not create an association between the Site and a third party;
- make sure that the link does not imply, implicitly or explicitly, that Swiss Funding approves, supports or assumes the activity of any other website, company or entity and
- that Swiss Funding and/or its activities are not misrepresented, misleading, defamatory, insulting or otherwise harmful to Swiss Funding's reputation or benefit from it. A link to the Site does not entitle you to use any content, name, logo, image or trademark owned by Swiss Funding or third parties without the prior, specific and written permission of Swiss Funding and the rights holders. Swiss Funding reserves the right to ask you to remove any link to the Site without having to give reasons.
- The titles of the articles of the ToU are intended only to facilitate reading and have no legal effect.
- Any notice or communication in connection with the ToU will be sent to the address indicated in the details of the Account.
- The ToU, as well as all rights and obligations under the ToU, may not be assigned by the Users, but may be assigned by Swiss Funding without restriction.
- The ToU and the documents that form an integral part thereof constitute the entire agreement in relation to its purpose between each User and Swiss Funding. In case of conflict between a provision of the ToU and a provision of any Special Conditions, the latter shall prevail.
- Any provision of the ToU that is in whole or in part in contradiction with the Swiss imperative law will be separable, and any total or partial nullity of such a clause will not affect the validity of the remainder of the clause. question, or other clauses of the ToU. If a provision of the ToU is ineffective in whole or in part, it should be replaced by a provision producing economic and legal effects as close as possible to those of the voided provision.
- The fact that Swiss Funding tolerates breaches by a User of its obligations under the ToU, or that it does not require the application of a right that is recognized by the Swiss ToU or by the law, can not be interpreted as a waiver on their part to avail themselves of it in the future.
10. JURISDICTION AND APPLICABLE LAW
The ToU are subject to Swiss substantive law, excluding the rules of private international law.
ToU updated on 19 January 2019.