Last Update: 25.09.2024
“AML Legislation“ shall mean any applicable anti-money laundering, anti-terrorist financing, government sanction and “KYC”-laws, whether within Switzerland or elsewhere, including any guidelines, orders such as the Swiss Federal Act on Combating Money Laundering and Terrorist Financing of 10 October 1997, as amended.
“Arcual” shall mean Arcual AG (CHE-439.010.112), a company limited by shares incorporated in accordance with laws of Switzerland.
“Authenticity Validation Participant” shall mean any person or an entity that is authorized and qualified to certify the authenticity of a Product.
“Buyer” shall mean the buyer of the Product on the Platform.
“Certification Request” shall mean a request of certification of authenticity of a Product as set forth in Section 4.1 of these Terms.
“Certification Token” shall mean a non-fungible cryptographic token on the Platform pertaining to any one or more of the following: a certificate of authenticity, a certificate of sale, or any certification verifying facts, actions, or activities associated with the Product.
“Digital Portfolio” shall mean a non-fungible cryptographic token on the Platform that represents a digital folder, which aggregates a selection of digital files and/or cryptographic tokens (e.g. Certification Token, certificate of sale, Resale Share) as opted by a Seller, in connection with a Product on the Platform.
“Force Majeure” shall mean any cause beyond the reasonable control of the Party which delays, hinders, or prevents (whether partially or wholly) the Party from complying with its obligations towards each other, including, but not limited to, any act of God or the elements, war, hostilities, mobilization, confiscation, terrorism, riots, pandemics, acts of the public enemy, civil commotion, fires, strikes, labor disputes, accidents, radioactive contamination as well as attacks with chemical, biological, bio-chemical and electromagnetic weapons, cyber-attacks, any act in consequence of compliance with any order of any government or governmental or executive authority or any event affecting the supply of energy and raw materials that adversely affects the Party’s ability to make deliveries on time or in full.
“KYC-Check” shall mean the verification of the User in accordance with AML-Regulations.
“KYC Service Provider” shall mean the third-party service provider which performs the KYC-Check.
“Owner” shall mean the User who owns the Product.
“Payment Service Provider” shall mean a third-party payment service provider which collects the Purchase Price on behalf of the Users.
“Platform” shall mean a digital platform operated by Arcual featuring the Platform’s Services.
“Platform Fees” shall mean the fees charged by the Platform as defined in section 6 for the use of the Platform by the User.
“Platform’s Services” shall mean the services provided by Arcual on the Platform as described in Section 2 of these Terms.
“Primary Sale” shall mean first sale of a Product on the Platform.
“Privacy Policy” shall mean Arcual’s Privacy Policy accessible on the Website.
“Product” shall mean any item registered in the Platform for Sale.
“Prohibited Jurisdictions” shall mean each jurisdiction or individual listed in the sanction lists of SECO, the European Union, UK, OFAC, UN or any other relevant national jurisdiction list.
“Purchase Price” shall mean the purchase price for the Product agreed by the Users in the Sales Agreement, including Platform Fee and fees of Payment Service Provider (if applicable).
“Registration Information” shall mean the information required to register a Product on the Platform.
“Resale Share” shall mean the contractual share of the Purchase Price owed to the Seller for each Secondary Sale on the Platform. The Resale Share are determined by the Seller during the registration process of the Product.
“Sale” shall mean collectively the Primary Sale and the Secondary Sale.
“Sales Agreement” shall mean the sales agreement between the Seller and the Buyer regarding the sale of a Product on the Platform.
“Secondary Sale” shall mean every sale of a Product after the Primary Sale on the Platform.
“Seller” shall mean the User who sells or offers to sell the Product on the Platform.
“Store” or “Storefront” shall mean a section of the Website that enables Sellers to unify their commerce activities. Among other features, the Storefront includes a range of tools for Sellers to build and customize online stores, sell in multiple places (including web, mobile, social media, online marketplaces and other online locations (“Online Services”) and in person (“POS Services”)), manage products, inventory, payments, marketing and advertising, and engage with existing and potential Buyers.
“Store Owner” shall mean a Seller who operates the Storefront for the Sale.
“Subscription” shall mean a recurring payment arrangement whereby a User agrees to pay a predetermined fee at regular intervals (e.g., monthly, quarterly, or annually), as determined by Arcual, in exchange for specified access to the Platform.
“Swiss Civil Code” shall mean the Swiss Civil Code of 10 December 1907 (ZGB, SR 210), as amended.
“Terms” shall mean these general terms and conditions.
“User” shall mean Buyer, Seller and/or Store Owner.
“User Account” shall mean the account of the User accessible via the Website.
“User Account Access Data” shall mean information and data necessary to log-in to User Account.
“User Content” shall mean any and all information and content that a User submits to, or uses with, the Platform e.g., photos, audio, video, messages, text, files, creative ideas, suggestions, proposals, plans or other material provided to the Platform in any manner.
“User Information” shall mean the information requested on the Website to create a User Account.
“Website” shall mean the website which gives access to the Platform.
The Platform enables its Users to make or receive payments in connection with the sale of Product, register Products, issue and transfer Digital Portfolios and otherwise facilitate the Sale of Products on the Platform, including the use of the Storefront.
In order to use the Platform’s Services, User needs to set up a User Account by providing the User Information requested on the login interface on the Website and accepting these Terms. Any input errors during setting up a User Account can be corrected by the User using the feedback provided in the Website. Arcual may request from the User additional information for verification purposes at any time.
Once User has submitted User Information, the KYC Service Provider and/or the Payment Service Provider may request the User to complete certain verification procedures which will be conducted by the KYC Service Provider and/or the Payment Service Provider. The KYC-Check will be subject to the terms and privacy policies of the KYC Service Provider and/or the Payment Service Provider, respectively. Additional KYC-Checks may be performed before each Sale.
User acknowledges that pursuant to AML Legislation, KYC Service Provider and/or the Payment Service Provider may be required to obtain, verify and record information regarding User, User’s directors, User’s partners or User’s authorized signing officers and the Sale (e.g. source of funds) contemplated by terms of the KYC Service Provider and/or the Payment Service Provider, respectively.
User undertakes to promptly provide or cause to be provided to KYC Service Provider and/or to the Payment Service Provider all required information, including supporting documentation and other evidence, as may be reasonably requested by the KYC Service Provider and/or the Payment Service Provider, in order to complete the KYC Service Provider’s and/or the Payment Service Provider’s KYC-Check to ensure compliance with applicable AML Legislation, whether now or hereafter in existence.
User understands that the outcome of the KYC-Check, e.g. the non-admission of the Sale, or his exclusion at any time later, lies in the sole discretion of Arcual, KYC Service Provider and/or the Payment Service Provider. User further understands that the amount of information requested to provide as part of the KYC-Check may be subject to change over time and that User may at a later point in time be required to provide additional documents and/or information, based on which User’s Sale and/or purchase of Products may be rejected.
After successful registration and successful KYC-Check (if applicable), User will receive User Account Access Data and information applicable for the User.
User shall not be permitted to make these User Account Access Data available to third parties and User is responsible for any use and activities in connection with the User Account. User shall inform Arcual immediately if User becomes aware of any unauthorised access to their User Account.
In order to register a Product on the Platform for Primary Sale, the Seller must register the Product on the Platform. The Registration must include the Registration Information such as:
Arcual may request additional information in relation to the registration of the Product at its own discretion.
If the Seller opts for a Certification Token related to a certificate of authenticity, the Seller must designate an Authenticity Validation Participant and provide their contact details as required by the Platform. The Authenticity Validation Participant will then be notified of the Certification Request of the Product. In such cases, the Certification Request requires the approval of the Authenticity Validation Participant. The Authenticity Validation Participant may deny its approval for Certification of the Product for any reason. By approving the Certification Request the Authenticity Validation Participant confirms the certification of authenticity of the Product.
By submitting the Certification Request the Seller and the Authenticity Validation Partner confirm and warrant that (i) the Product is authentic and was created by the creator of the Product, (ii) the submitted information during the registration of the Product is true and correct, and (iii) the Seller has legitimate title to sell the Product.
If the registration of the Product is successful, the Sale is enabled on the Platform.
Arcual may allow for de-registration when required by law or at its sole discretion. Arcual shall have no liability for de-registering a Product for any reason.
The Sale of Products on the Platform requires that the Seller and Buyer conclude a Sales Agreement. To facilitate this, Arcual can provide Sale Agreement templates.
The Seller will submit on the Platform the necessary details required for the sale of a Product (e.g. identification information of the Product, Purchase Price, terms regarding delivery of the Product). Any input errors can be corrected by the User prior to the conclusion of the Sales Agreement using the buttons provided on the Platform. After submission by the Seller, a Sales Agreement will be generated. The Sales Agreement may include terms which are not at disposal of the Users.
The Sales Agreement has to be approved by the Buyer. Once the Buyer has confirmed the Sales Agreement, the Seller and the Buyer will be bound by the Sales Agreement.
All Platform Fees charged by Arcual will be reflected in the User’s Account during the Registration of Products and/or Sale of Products.
Arcual may collect in particular the following Platform Fees from the Users:
The collection of the Purchase Price shall be made by Arcual on behalf of the Seller. Accordingly,the Seller authorises Arcual to collect the Purchase Price from the Buyer on behalf of them and to transfer the Purchase Price in accordance with the selected collection method made available on the Platform.
Arcual has the right to use a Payment Service Provider for the collection of the Purchase Price. In such cases (a) fee(s) may be charged by the Payment Service Provider. These fees shall be deducted from the Purchase Price owed to the Seller. The distribution and processing of the Purchase Price will be subject to the terms and privacy policies of such Payment Service Provider.
8.1.1. Buyer
For refund requests due to contract rescissions and/or execution of a possible right of withdrawal, the Seller must be contacted directly. Returns and refunds are entirely within the discretion of the Seller. So far as legally and practicably possible, Arcual will help facilitate whatever decision has been mutually agreed by the Seller and Buyer and confirmed to Arcual in writing by both parties.
8.1.2. Seller
To process refunds to Buyers, Arcual can be contacted here. So far as legally and practicably possible, Arcual will support whatever decision you have agreed with the Buyer to unwind the Sale.
In any dispute in connection with bank or credit card payments the User can contact Arcual and Arcual can – at its own discretion – assist the User to liaise with the Payment Service Provider.
If the User has successfully disputed a credit card or bank payment, Arcual will assist as far as possible to resolve matters.
All Users represent and warrant to Arcual, and covenant that
All Sellers represent and warrant to the Users and to Arcual, and covenant that:
The Store Owner represents and warrants and covenant that:
All taxes (including VAT, if any), charges, levies, other fees of any kind imposed on the receipt or import of Products shall be the sole responsibility of the Users. Arcual does not provide any tax advice to its Users and shall not bear any responsibility in connection to payment and/or collection of taxes. The Users agree to hold in this regard Arcual harmless against any tax claims of any party.
Users will be suspended or excluded from the Platform in case of the following, at the sole discretion of Arcual:
The liability of Arcual is limited to acts of intent and gross negligence and direct damages. Any liability for indirect damage or consequential damage including loss of profit is excluded. In particular, Arcual shall not be liable for damages resulting from Sales, technical failure, Force Majeure, or for any conduct of Payment Service Provider or any other third parties which Arcual uses to perform the obligations under these Terms.
Arcual is furthermore not responsible for any conduct of the Users. Arcual can in particular not guarantee to the Users that Users will always use the Platform for Sales. Thus, Arcual shall not be liable for any damages (including loss of profits) which result from breach of these Terms by any User.
Arcual does not verify whether the statements and/or information provided by the Users are accurate and true. Accordingly, Arcual shall have no liability resulting out of inaccurate statements and/or information provided by the Users.
Arcual cannot guarantee that the Website and the Platform’s Services may be available all the time. The Website and the Platform’s Services may be unavailable for various reasons, including routine maintenance. The User accepts that due to circumstances within or outside the control of Arcual the use of the Platform’s Service may be interrupted, suspended or terminated. Arcual expressly excludes any liability for damages due to such circumstances.
Arcual shall be liable for the acts or omissions of the subcontractors, not known to the Users, in the same way as for itself.
The Users accept and acknowledge that:
The User shall defend, indemnify and hold Arcual, its affiliates and their respective directors, officers, employees, agents, successors, and assigns (the “Indemnified Parties”) harmless from and against any and all third party liabilities, claims, suits, and expenses arising out of or in any way attributable to or resulting out of the usage of the services of Payment Service Provider and/or KYC Service Provider, breaches of these Terms or the terms of service of Payment Service Provider and/or KYC Service Provider, willful misconduct or gross negligence by the User or any third party. In particular, the User shall hold the Indemnified Parties harmless of any claims associated with any inaccurate or incomplete information provided to Payment Service Provider and/or KYC Service Provider.
In addition, the Users shall defend, indemnify and hold the Indemnified Parties harmless from and against any and all third party liabilities, claims, suits, and expenses arising out of a breach of payment and/or collection of taxes out of the Sale of Products.
Any use of your personal data is governed by our Privacy Policy which can be accessed in its most current version on the Website.
User accepts that any and all rights (including copyrights, design rights and/or other intellectual property rights) of Arcual (in particular but not exclusively in the Arcual Website and the Platform’s Services) shall remain in the sole property of Arcual. Arcual does not assign any right, title and interest in any and all work results created or developed by Arcual under these Terms, including, but without limitation, all patents, copyrights, trade secrets and other proprietary rights.
User grants Arcual a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to host, use, distribute, modify, copy, publicly perform, display, and translate User Content in connection with the Platform’s Services. User confirms that they have the necessary rights to grant this license and irrevocably waives any moral rights in the User Content, allowing anyone obtaining rights through the Platform, including those to whom Arcual transfers or licenses, to use them.
Deleting a User Account does not affect any licenses granted to the Platform that are needed for exercising rights or fulfilling obligations under these Terms.
Arcual may review and delete any User Content at any time according to these Terms, though it's not obligated to do so.
User also grants Arcual a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the trademarks and logos associated with their Store to operate, provide, and promote the Platform’s Services. This license persists after these Terms end, only as needed for Arcual to exercise any rights or perform any obligations under these Terms.
These Terms shall be governed by and construed in accordance with Swiss law, excluding the Swiss conflict of law rules. The application of the United Nations Convention for Contracts for the International Sale of Goods (CISG) is hereby expressly excluded. In the event that the User is a consumer with its residence in a member state of the European Union, Swiss law shall apply to the extent that the application of Swiss law is not in conflict with mandatory rules more favourable and applicable to consumers in the member state in which the place of residence is located. Such rules shall remain unaffected.
Any dispute, controversy, or claim arising out of, or in relation to, these Terms including regarding the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre in force on the date on which the Notice of Arbitration is submitted in accordance with those Rules. The number of arbitrators shall be three. The seat of the arbitration shall be Zurich, Switzerland. The arbitral proceedings shall be conducted in English. The Expedited Procedure shall not apply.
These Terms do not create a principal or agent, employer or employee partnership, joint venture, or any other relationship except that of independent contractors between the Parties. Nothing contained herein shall be construed to create or imply a joint venture, principal and agent, employer or employee, partnership, or any other relationship except that of independent contractors between the parties, and neither party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other in connection with the performance hereunder.
Neither Party shall have the right to assign or transfer these rights and obligations under these Terms, in full or in part, to any third party without the prior written and express consent of the other Party. The Parties agree that any assignment or transfer in violation of this Section shall be null and void.
Arcual shall be entitled to use subcontractors to perform the obligations under these Terms.
Arcual reserves the right to change these Terms at any time, effective immediately upon accepted by the User upon the next login to the User Account. In the event of significant changes to these Terms, Arcual will inform Users.
The contract text will not be stored by Arcual after the registration in a manner such that it can be accessed by the User. These Terms contain the entire agreement between Arcual and User regarding the use of the Platform and supersedes all understandings and agreements whether written or oral.
The contractual language between the parties is English. No other languages are currently available for the conclusion of the Terms.
If any provision of these Terms should be invalid in any jurisdiction under applicable law, the legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. In such an event, the Parties commit themselves to compose a legally valid replacement rule which approaches the invalid provision as closely as possible within the economic intent of this Agreement. With this in mind, these Terms will be interpreted as though the invalid clause had been omitted from the outset.
If any party waives the enforcement or exercise of its contractual right in a particular case, this may not be considered a general waiver of the respective right or any other contractual right or the exercise and enforcement thereof.
A consumer is any natural person who concludes a legal transaction for purposes which cannot predominantly be attributed either to their commercial or self-employed activities. If the User is a consumer domiciled in a member state of the European Union, the following provisions apply.
Arcual is obligated to make consumers aware of the European online platform for the out-of-court resolution of disputes which arise between vendors and purchasers in connection with, amongst other things, online purchase contracts. The European ODR platform is available at the following link: http://ec.europa.eu/consumers/odr.
Arcual’s email address is: support@arcual.art.
Actual is neither obligated nor willing to participate in a dispute resolution procedure before a consumer conciliation body.
This Section applies to users based in the European Union and the Services covered by the EU Digital Services Act (the “EU DSA”).
If you are an authority as defined under Art. 11 of the EU DSA, you may reach out to us at dsa-authority@arcual.art. We accept communications in both German and English. When contacting us via this email, please include your full name, contact details, and the name of the EU-based authority you represent.
If you encounter any use of our services that you believe is illegal or violates these Terms, please notify us by using this link to our reporting form. For any other communication in connection with the EU DSA, please contact us at dsa-user@arcual.art. We greatly value your feedback in helping us maintain a safe environment for everyone.
User Content that we determine to be illegal or in violation of these Terms (Section 9) will be removed. The decision to remove content will be made through human review only; no automated decisions will be used. Depending on the nature of the content and the frequency of violations, we may also temporarily deactivate the user account responsible for the infringing content.
If User Content is removed, we will notify the affected User and provide a brief explanation for why the User Content was not permitted. If your User Content is removed and you believe our decision should be reconsidered, you can submit a complaint within six months using the provided reporting form. We will re-evaluate the content and inform you of our decision promptly.
Additionally, if you disagree with our decision or the outcome of an appeal, you may contact a certified out-of-court dispute resolution body. The DSA mandates that each Member State’s Digital Service Coordinator certifies these bodies to handle eligible disputes. We will cooperate with such bodies only when legally required and are not obligated to accept their decisions.
