General Terms of Use of HercleX

last update date 14.07.2023

1. PREMISES

1. These general terms of use (the "Terms of Use") govern the relationship between the Customer and the company Hercle S.r.l. with registered office in Via Salasco 3, Milan, Italy, C.F. and P.IVA 10942550962 ("Hercle") with respect to the use of the Services, the Platform and the API, as defined below. These Terms of Use and the Attachments form a single agreement between Hercle and Customer. Unless expressly stated otherwise, these Terms of Use apply to any additional services, features, applications, APIs, or software developed by Hercle and granted for use by Customer.

2. Pursuant to the AML Regulations, Hercle qualifies as a Virtual Asset Service Provider ("VASP") and is registered in the special section of the register of money changers ("Providers of services related to the use of virtual currency and digital wallet services") under the registration number PSV32 in the special register maintained by the Organismo Agenti e Mediatori ("OAM"). The register can be viewed at the following link:https://www.organismo-am.it/elenchi-registri/operatori_valute_virtuali/.

3. Except where otherwise expressly stated, the Services, Platform, and APIs are provided directly by Hercle itself and enable the performance of transactions involving Digital Assets based on distributed ledger technologies ("DLT"). Customer's use of the Services implies Customer's conscious, full and unconditional understanding and acceptance of the risks inherent in the Digital Assets outlined inn Appendix A.

4. The Customer expressly acknowledges that the Digital Assets may qualify, as the case may be, as virtual currencies within the meaning of Article 1, paragraph 2, lett. qq) of Legislative Decree 231/2007 i.e., "the digital representation of value, not issued or guaranteed by a central bank or public authority, not necessarily linked to a legal tender, used as a medium of exchange for the purchase of goods and services or for investment purposes and transferred, stored and traded electronically." Customer expressly acknowledges that the qualification of Digital Assets as virtual currencies and the provision of services by Hercle involving virtual currencies entails the application of the AML Regulations.

5. Customer understands that Hercle does not provide any investment or other advice in connection with a Transaction, an Order, Customer's portfolio, or the strategy Customer decides to implement through the execution of Transactions. Under no circumstances does Hercle provide, either spontaneously or upon request, any indication, suggestion, or other assessment as to whether to use, buy, sell or exchange Digital Assets or personal recommendations to Customer, and nothing in these Terms of Use or in the provision of the Services (including the decision to include in or remove coins or tokens from the list of permitted Digital Assets or to place or not to place Orders in compliance with these Terms of Use) shall be construed by Customer as a guarantee or indication as to the profitability or desirability of the Orders placed from time to time by Customer or of the Transactions executed by Hercle in the interest of Customer. Hercle does not, likewise, provide advice or recommendations regarding the tax consequences, accounting treatment, or legal or regulatory framework for operating with Digital Assets.

6. These Terms of Use are strictly personal. Therefore, unless otherwise agreed between Hercle and the Customer, the Platform, APIs, or Services may only be enjoyed by the Customer in its exclusive interest. In the event that the Customer is operating in the interest of a third party, this circumstance must be communicated to Hercle in advance during the Registration Procedure.

2. General predictions and definitions

1. These Terms of Use govern Customer's use of the Services provided by Hercle. However, for legal and fiscal reasons one or more Services may be provided by other entities participated by Hercle S.r.l. and in this case the Terms of Use shall govern the provision to Customer of the Services actually provided by Hercle's participated entities. The Services are provided on the basis that these Terms of Use and the Annexes form a single agreement between Hercle and Customer. Hercle's acceptance of these Terms of Use does not imply the assumption by Hercle of any obligation or burden, of whatever nature, other than those expressly set forth in the Terms of Use themselves, including the Annexes or provided for by mandatory provisions of law.

2. Unless otherwise stated, Hercle is not authorized to provide investment services or activities and does not hold authorizations or licenses to provide investment services and activities within the meaning of Directive 2014/65/EU ("MiFID II") and related European and national legislation. Likewise, Hercle offers the Services only for those Digital Assets that it believes, in good faith and based on available information assessed in its prudent judgment, do not qualify as a financial instrument or product. Neither the Services nor the Platform constitute a trading venue within the meaning of Directive 2014/65/EU.

9. Hercle exclusively supports the Digital Assets set forth at the following link:https://hercle.financial/supported-assets which shall be deemed to be referred to in its entirety and incorporated, in the version published from time to time on the Site, as an Annex to these Terms of Use. Through the Platform, Admitted Channels, or APIs, Customer may not operate with digital assets that are not among the supported Digital Assets by Hercle. Customer assumes all liability and thus holds Hercle harmless and indemnified from the consequences of using the Services to conduct Transactions involving unsupported Digital Assets. Customer may request and Hercle may, in its sole discretion, evaluate whether to grant a request to include a Digital Asset among the permitted Digital Assets. Hercle may consider, in its sole discretion, whether to extend the ability to transact with such new digital asset to all Platform Customers or to limit such ability exclusively to the Customer who has requested it and/or to other Customers identified by Hercle.

10. Capitalized terms in these Terms of Use have the meanings indicated below:

3. Services, use of the Account

11. These Terms of Use shall govern, subject to the application of any additional and further terms and conditions provided by Hercle:

1. the use of the Services;

2. the use of the Platform;

3. the use of the API.

12. The following features available to the Customer upon completion of the Registration Procedure are considered Services under these Terms of Use:

1. buy or sell Digital Assets against FIAT Currencies;

2. exchange Digital Assets with other Digital Assets;

3. receive personalized assistance in using Services where expressly agreed upon between the Customer and Hercle;

4. deposit in custody Digital Assets.

13. With respect to individuals, the Services are available only to persons who are over the age of 18 or are of legal age under the Applicable Law of the state in which they reside or have their domicile.  

14. Customer may use the Services, subject to any additional terms and conditions applicable to the relationship between Hercle and Customer, through the Platform, Admitted Channels, and APIs. The provisions applicable to the Services, Platform, and APIs are described in more detail in Article 5 below.

15. For the provision of the Services and, more specifically, for the receipt and sending of FIAT Currency resulting from the execution of Customers' Orders, Hercle makes use of banking partners that make available to Hercle, as the case may be, one or more current accounts together with virtual IBANs, in the name of Hercle and associated with such accounts, to allow: (a) the receipt or sending of FIAT Currency funds related to Customers' Orders; (b) the reconciliation of the movements on the aforementioned accounts of Hercle. By signing these Terms of Use, Customer expressly acknowledges that the virtual accounts and IBANs, used by Hercle, are in the name of Hercle itself to enable the operations related to the Services and, therefore: (x) they are not in the name of or usable by Customer for the receipt of FIAT Currency from third parties and other than Customer or for purposes other than the receipt or sending of FIAT Currency funds related to Customer Orders; and (y) the FIAT Currency amounts in the accounts held in the name of Hercle are in the full availability and responsibility of Hercle and do not enjoy the protections provided by the Deposit Guarantee Scheme or the segregation purposes provided by Applicable Law and payment services regulations (by way of example only, D.Lgs. 11/2010, as amended).

4. Registration procedure, activation, login credentials

1. In order to use the Services, Platform and APIs, the Customer must successfully complete the Registration Procedure, which involves, in particular: (a) the creation of a Customer profile; and (b) the successful completion of the checks required under the Applicable Law and the AML Regulations.

17. To complete the Registration Procedure, Hercle asks the Customer for the following data and documents:

1. biographical data, including tax data (e.g., social security number);

2. residential address;

3. copy of a valid identification document;

4. where applicable, residence permit;

5. master data of the legal person Customer (e.g., registered office, name, VAT number, tax code, etc.);

6. a copy of the Customer'svisura or company register excerpt, if applicable, generated and downloaded no later than six months prior to the date of initiation of the Registration Process;

7. master data of the legal representative of the Customer legal person;

8. master and identifying data of any Authorized Representatives;

9. billing data;

10. a valid certified electronic mail (CEM or “PEC” under Italian law) address;

11. proof of residency;

12. contact information (e.g., e-mail, phone number, etc.);

13. additional information or documents requested as part of the Registration Procedure including, but not limited to, politically exposed status, employment status, sources and level of income, and/or source of funds.

18. The data that Customer must provide to Hercle under Article 4.2 above must be true, complete, and correct. In order to provide its Services, Hercle is required to comply with the AML Regulations in a timely manner. Therefore, it is essential that the Customer completes the Registration Procedure and successfully passes the AML/KYC checks put in place by Hercle both during registration and during the constancy of the relationship.

19. Hercle is required by law to conduct certain AML audits, and Customer acknowledges that failure to pass such audits will result in Hercle's objective inability to provide the Services and/or to enter into other contractual relationships with Customer, at Hercle's discretion. The Customer further acknowledges that the provision of the Services under these Terms of Use is subject, in addition to the additional conditions indicated, to compliance with the obligations set forth in the AML Regulations including, Hercle's obligation to request additional information from the Customer, at any time during the relationship, regarding the Customer's identity, that of beneficial owners, or other personal, financial, tax or other information. The Customer agrees to provide the information requested by Hercle, promptly and truthfully and understands that failure to provide such information or the late provision of such information or the provision of false, incomplete or inaccurate information will, without prejudice to all other remedies available to Hercle under these Terms of Use and Applicable Law including the AML Regulations, in Hercle's sole discretion result in the immediate suspension of the Services or cancellation of the Customer Account and, therefore, the permanent termination of the relationship between the Customer and Hercle. Customer agrees to notify Hercle promptly and in the manner set forth in these Terms of Use, of any changes in the data provided to Hercle during the Registration Process as well as any data, information, event or circumstance that is relevant to the AML Regulations or is reasonably likely to impact the information required by the AML Regulations.

20. Following the Registration Process and subject to its successful completion, the Customer will have access to its Customer Account accessible through the Site or, as the case may be, through the Platform. He/she will also be able to use the Services, access the Platform or APIs subject to these Terms of Use.

21. The use of the Services, the Platform or the APIs is in any case prohibited to individuals or legal entities who:

1. are resident in, domiciled in, or otherwise have a material connection with the Excluded Countries set forth at the following link https://hercle.financial/policies which shall be deemed to be referred to, as amended from time to time on the Site, as an Annex to these Terms of Use. In the event that the Customer is a resident of, is domiciled in, or has a material connection with a country on the list of Excluded Countries during the term of these Terms of Use, Hercle shall have the right to terminate the relationship with the Customer with immediate effect and, in any event, not to execute any Orders or Transactions entered by the Customer. Likewise, Hercle will terminate Customer's access to the Services, Platform, and APIs in the event of orders, judgments, orders, or other binding acts from competent Authorities;

2. are recipients of EU/US/UK/UN sanctions or are persons or entities on the list of Specially Designated Nationals and Blocked Persons maintained by the US Office of Foreign Asset Control ("OFAC") or are on equivalent lists maintained by the EU;

3. use Shell Banks.

22. Customer expressly acknowledges and agrees that Hercle may decide, based on its prudent judgment, not to accept Customer's registration request if there is a suspicion that Customer's registration and/or use of the Services, Platform or APIs will violate Applicable Law or these Terms of Use.

23. During the Registration Procedure, the Customer shall create a secure username and password in accordance with the generation parameters provided within the appropriate form. The aforementioned elements, together with the OTPs or additional data generated and/or requested from the Customer as part of the 2FA procedure, constitute the Credentials with which the Customer will access its Customer Account and the Platform and through which the Customer will use the Services. The API Key shared by Hercle with Customer for use of the APIs will also be considered Credentials.

24. The Customer is obligated to store Credentials securely and, in the case of a legal entity Customer, to share Credentials exclusively with its Authorized Representatives. The Customer must implement appropriate technical, IT, organizational and security measures to avert the risk of loss or theft of the Credentials, not inferior in robustness and security to the technical, IT, organizational measures used by the Customer to store its most confidential data. In the event of loss, misappropriation, or breach of Credentials (or the occurrence of circumstances, events, or occurrences that result in reasonable doubt that such loss, misappropriation, or breach has occurred or is likely to occur) the Customer shall immediately notify Hercle in writing. The Customer that qualifies as a legal entity agrees to allow the use of the Services only by its Authorized Representatives who, in the use of the Services, will act as direct agents of the Customer. The Customer undertakes to provide, prior to the fruition of the Services, the identification data of the Authorized Representatives to Hercle. The Customer is prohibited from allowing persons other than the Authorized Representatives to use the Services. The Customer, therefore, agrees to make every reasonable effort to ensure that only its Authorized Representatives use the Services, the Platform and the APIs, where applicable, and also agrees to put in place the technical and procedural measures required to enforce, within its organization, the provisions of these Terms of Use.

25. The Customer expressly acknowledges that any Order entered or Transaction executed directly by the Customer or, in the case of a Customer qualifying as a legal entity, upon action of an Authorized Representative or, in any event, by use of Credentials, will be considered by Hercle as coming from the Customer. It is understood that the Customer shall remain solely responsible for the proper use of the Services and for the full compliance with the provisions of these Terms of Use also on behalf of its Authorized Representatives pursuant to Article 1381 of the Italian Civil Code.

26. The Customer will promptly inform Hercle of any requests, inspections, recommendations or directions received from the Authorities in connection with the Services.

27. Following the Registration Process and subject to its successful completion, Customer will receive confirmation of successful registration by email and will be able to: (a) access the Customer Account and the Platform using its Credentials; (b) subject to any additional applicable terms and conditions, enjoy the Services and use the APIs.

5. Provisions applicable to the Services, Platform, and API.

Transfer of FIAT Currencies / Digital Assets

1. Except in cases of Delayed Settlement Orders, where authorized by Hercle, in order to execute an Order, the Customer must have the necessary supply of FIAT Currency or Digital Assets of the type necessary to execute the Order prior to the time the Order is placed. The availability of funds denominated in FIAT Currency or Digital Assets is determined on the basis of data recorded and stored in Hercle's IT systems. In this regard:

1. in the event it is necessary to create the supply of FIAT Currency, the Customer may transfer the funds, to the extent required, by bank transfer to the current account indicated by Hercle on the understanding that: (a) the bank account from which the funds are to be received must be in the Customer's name; (b) Hercle reserves up to a maximum of 2 (two) Business Days from the crediting of the funds to Hercle's bank account to confirm the availability of the funds for the execution of subsequent Orders;

2. in the event it is necessary to create the supply of Digital Assets, Customer may transfer the necessary amount of Digital Assets to the correct Hercle Wallet assigned to Customer (in the event that different Hercle Wallet addresses are provided for different types of Digital Assets, Customer shall make the transfer to the address compatible with the Digital Assets that Customer intends to transfer) it being understood that: (a) the Customer Wallet used by Customer shall be in Customer's name; and that (b) Hercle reserves time, consistent with the necessary confirmations required by the DLT underlying the Digital Assets being transferred, from the execution of the on-chain transfer of the Digital Assets submitted by Customer, to confirm the availability of the Digital Assets for the execution of subsequent Orders.

29. In the event that the Customer establishes the supply by transferring funds denominated in a FIAT Currency other than Euro, Hercle may proceed, taking into account the nature of the Order(s) entered by the Customer, to the prior conversion of the Customer's funds necessary for the execution of the Order(s) into Euro or another FIAT Currency. In this case, Hercle will apply the exchange rates applied by its banking partner at the time the conversion is executed. All conversion costs shall be borne by the Customer.

30. Hercle reserves the right at any time to perform, directly or through third parties, on-chain and/or off-chain analysis on the Digital Assets deposited by Customer and to delay or refuse the completion of the deposit in the event that it detects elements that, in its prudent and unquestionable judgment, present indications of anomaly or are, in Hercle's reasonable judgment, suspect. In the event of a refusal by Hercle to proceed with the deposit of Digital Assets by Customer, the Digital Assets subject to the attempted deposit by Customer will be transferred back to the source address. Hercle shall have the right but not the obligation to notify the Customer of the results of its analysis.

31. The Customer may withdraw the funds denominated in FIAT Currency pertaining to him/her. In such case, Hercle will execute the Customer's request by arranging for a wire transfer to the bank details provided by the Customer for the amount requested, it being understood that: (a) Hercle reserves up to a maximum of 24 (twenty-four) hours to execute the transfer from when the request has been properly submitted by the Customer; (b) the account to which Hercle will make the transfer must be in the direct name of the Customer. Hercle reserves the right to withhold, and thereby deduct from the amount transferred, any amount owed by Customer to Hercle itself and to request additional information from Customer, including proof of ownership of the target account, before executing the transfer of funds to and/or whitelisting the account.

32. A withdrawal order for Digital Assets or funds denominated in FIAT Currency placed by Customer: (i) shall in no event be for an amount in excess of Customer's holdings of funds or Digital Assets as resulting from Hercle's IT systems less any costs, fees or amounts payable to or retained by Hercle to fulfill obligations imposed by Applicable Law or any additional applicable limits; (ii) shall be executed by Hercle within twenty-four (24) hours after Customer submits it. Customer may request and Hercle may grant, in its sole discretion, the ability for Customer to make instant withdrawals upon Customer's request. Withdrawals of funds in FIAT Currency shall be made by Hercle in Euros only.

Execution of Orders

33. An Order will only be considered executable and, therefore, executed by Hercle provided that: (i) such Order is properly entered via the Platform, API or an Admitted Channel; (ii) the Customer has Digital Assets and/or FIA Currency in sufficient quantity to execute the Order; (iii) any additional conditions have been met such as, for example, compliance with the 2FA confirming the identity of the Customer and/or the Order or any limits applicable to the Order itself. Hercle will confirm the execution of an Order by appropriate message sent via the Platform, API or Admitted Channel used by Customer, it being understood that failure to confirm an Order shall not be a condition for deeming the Order invalid. Once the Order has been placed in compliance with the terms and conditions set forth in these Terms of Use, Hercle will execute the Order. Customer expressly acknowledges that once an Order has been placed, it may not be revoked or modified by Customer and, once executed, will be final.

34. In addition to any other right to restrict the provision of the Services under these Terms of Use, Hercle reserves the right not to process an Order when, based on the information available to it and/or based on its prudent judgment: (i) the execution of the Order would result, even if only on the basis of an assessment based on reasonable probability, in a violation of the Applicable Law; (ii) the Order is entered in a manner that may result in a risk to the security, reliability or integrity of the Platform, Services or APIs; (iii) the authentication methods and/or Customer's behavior present indications of anomalies that may reasonably suggest a violation of these Terms of Use, a violation of the Applicable Law and/or the misuse of Customer's Credentials.

35. Orders are understood to have been entered by the Customer whose Credentials were used to initiate the session and/or opening of the Admitted Channel, Platform or API communication by which the Order was placed. Hercle is under no obligation to ask for additional information about Customer's identity when placing or subsequently executing the Order.

36. Hercle agrees to execute Orders promptly and in accordance with the parameters, from time to time, identified by Customer with the understanding that Hercle makes no specific warranty as to compliance with specific speed parameters or manner of execution of Orders entered by Customer unless such parameters or manner have been previously and expressly agreed upon between Customer and Hercle.

37. The Customer expressly acknowledges that Hercle does not perform any consulting or verification of the suitability, appropriateness or convenience of the Orders entered by the Customer. The Customer is solely responsible for the parameters of the Orders entered and the consequences, financial, tax and legal of the execution of such Orders.

38. Where required by Applicable Law, orders or instructions from Competent Authorities or to ensure the safe delivery of the Services, Hercle reserves the right to impose limits on the size or type of Orders executable through the Platform. Hercle agrees, where reasonably practicable, to provide at least forty-eight (48) hours' notice of the application of any applicable limits. Hercle reserves the right not to execute Orders that do not comply with any applicable limits.

39. Customer may request Hercle - which may, in its sole discretion, grant or deny such request - to be expressly authorized to place Delayed Settlement Orders ("Delayed Settlement Order"). The placing of Delayed Settlement Orders entails the ability of the authorized Customer to place an Order in the event that the supply of FIAT Currency or Digital Assets is insufficient for the execution of such Order provided that the Customer transfers to Hercle, no later than 48 (hours) following the placing of a Delayed Settlement Order the necessary provision of funds denominated in FIAT Currency or Digital Assets. Customer expressly acknowledges that Hercle reserves the right to: (i) withhold the amounts, denominated in FIAT Currency or the quantities of Digital Assets obtained from the execution of the Order until the necessary funding is paid by Customer; (ii) in the event of Customer's failure to pay the necessary funding within the aforementioned period, to arrange for the sale of the Digital Assets obtained through the execution of a Delayed Settlement Order in order to cancel its effects. This shall be without prejudice to Hercle's right to demand from Customer the payment of such sums as may be necessary in order to cancel the effects resulting from the execution of a Delayed Settlement Order that has not been followed by Customer's payment of the required funds within the time limits set forth in these Terms of Use.

40. The Services are offered to Customer via the Platform and/or via APIs made available by Hercle. Additional terms and conditions may be provided at Hercle's discretion, which Customer must accept in order to use the Services.

41. In the execution of Orders involving the exchange or purchase and sale of Digital Assets, Hercle may, at its discretion, act as Customer's counterparty or execute the Order on third party exchange systems. Customer expressly agrees that at the time the Order is executed, Hercle may, in its own interest or in the interest of other customers, hold similar or opposite positions to the one that is the subject of Customer's Order. Hercle will take reasonable steps to avoid acting in a conflict of interest or, if a potential or actual conflict of interest is detected and the same cannot be eliminated, Hercle agrees to: (i) notify the Customer of the existence of a potential or actual conflict of interest; (ii) take reasonable steps to mitigate the risks of conflict of interest detected. Hercle may fulfill its commitment to disclose potential or actual conflicts of interest through general notices on the Site or through the Platform.

Pricing of Digital Assets

42. Digital Assets prices (as applicable expressed by "Digital Asset/FIAT Currency" or "Digital Asset/Digital Asset" pairs) are available, either immediately or upon request, through the Platform, Admitted Channels and Hercle's APIs. In the event that Customer: (a) requests a price quotation ("RFQ"); or (b) places an Order without, however, executing it immediately, Hercle reserves the right to indicate the maximum time, expressed in the relevant units of time, in which the Order may be executed at the indicated price, subject to the limits set forth in Article 5.16 below. Once the aforementioned time limit has elapsed without the Customer having perfected the placing of the Order, Hercle reserves the right to generate a new RFQ or display a different price at which to execute the Order.

43. In this regard, Customer expressly acknowledges and agrees that: (a) Hercle does not guarantee that the price formation mechanisms are immune from exogenous factors including, but not limited to, alterations in the operation of the DLT, the behavior of miners or validator nodes, behavior of other users of the underlying DLT network, or other events or circumstances likely to impact price formation; (b) it agrees to execute any Order placed by Customer at the price displayed by Hercle at the time the Order is placed. As a partial exception to the preceding sentence, the Customer expressly acknowledges that the prices displayed are based on normal market conditions. Customer expressly acknowledges that in the event of high market volatility or in the presence of non-ordinary events or circumstances Hercle may execute the Order at a price different from the displayed price.

Case

44. The Customer's Digital Assets transferred to Hercle are held by virtue of an irregular deposit (i.e., under Italian law a “deposito irregolare”). Therefore, Customer expressly acknowledges and agrees that: (a) Customer's Digital Assets may be commingled with other Digital Assets pertaining to other customers without the same being subject to further segregation; (b) Customer shall have the right to withdraw a certain amount of the type of Digital Assets deposited, but the Digital Assets delivered by Hercle in implementation of such request may not coincide, in whole or in part, with the Digital Assets originally deposited by Customer.

Customer Wallet

45. For the transfer of Digital Assets to Customer or from Customer to Hercle, Customer shall use or indicate, as applicable, a Customer Wallet compatible with the Digital Assets that are the subject of an Order entered by Customer. In the absence of the indication of a Customer Wallet, Hercle reserves the right not to process the Digital Assets Transfer Order entered by Customer. Hercle has no obligation to perform any testing or other forms of verification on the Customer Wallet.

Hercle User Acceptance Testing Environment

46. Upon written agreement with Hercle, Customer may have access, for a predetermined time and under predetermined conditions, to the sandbox/testnet developed by Hercle ("User Acceptance Testing Environment"). To the User Acceptance Testing Environment (“UAT”), the general covenants set forth in these Terms of Use shall apply, unless otherwise specified by Hercle, including the payment of any agreed upon fee. It is hereby expressly understood that: (i) the purpose of the User Acceptance Testing Environment is solely to facilitate Customer's setup and/or integration activities with the APIs and/or, as the case may be, with the other technologies or services made available by Hercle as well as to allow Customer to perform tests with respect to the functionality and/or other technologies made available by Hercle; (ii) unless otherwise expressly stated by Hercle, the transactions performed within the User Acceptance Testing Environment are simulated and are not perfected and therefore do not entitle Customer to obtain Digital Assets or FIAT Currency; (iii) in light of the very nature of the User Acceptance Testing Environment, it is possible that inefficiencies and/or anomalies may occur with respect to which Hercle disclaims, to the fullest extent permitted by the Applicable Law, any liability for such inefficiencies and/or anomalies; (iv) the anomalies and/or inefficiencies resulting from Customer's use of the User Acceptance Testing Environment shall not be imputed, under any circumstances, to the calculation of any availability parameters expressly agreed between Customer and Hercle.

Demo Software

47. Hercle may make available to Customer, in its sole discretion, new technologies or features within the User Acceptance Testing Environment (such new technologies or features hereinafter "Demo Software"). In such case, Customer expressly agrees and acknowledges that: (i) the choice to make the Demo Software available to Customer is the free prerogative of Hercle and that entering into these Terms of Use does not imply any obligation on Hercle to make such Demo Software available to Customer; (ii) the Demo Software is made available on an "as is" basis and without any warranty, implied or express, as to its proper functioning or its usefulness or suitability for a particular use; (iii) the Demo Software may be in a state of partial development and, therefore, may have even obvious anomalies in its operation with respect to which Hercle disclaims any liability to the fullest extent permitted by law; (iv) the use of Demo Software does not automatically entitle the Customer to benefit from the related functionalities or technologies in a production environment where these Terms of Use do not apply to such new technologies, functionalities or services; (v) all technology, functionalities, software forming part of the Demo Software is subject to the provisions relating to intellectual and industrial property contained in these Terms of Use with respect to the Services, Platform and APIs and, more generally, to Hercle's know-how.

6. Third-party services

1. Through the Platform, Services or APIs, it is possible for Customer to take advantage of Services provided by third parties ("Third Party Services") that may be governed by terms and conditions separate and different, even in part, from these Terms of Use. As appropriate, Hercle will make available to Customer a list of or a link to the terms applicable to the Third Party Services via email and/or on its website and/or through the Platform. In the event of any conflict between the terms applicable to the Third Party Services and the terms of these Terms of Use, the terms applicable to the Third Party Services shall prevail solely with respect to the Third Party Services to which such terms pertain.  

7. Fee

1. The methods of calculating, displaying and paying the fees for the use of the Services, the Platform and/or the APIs, are visible on a specific page at https://hercle.financial/fees, which shall be deemed attached to these Terms of Use in the version published from time to time on the Site. Hercle reserves the right at any time to unilaterally and at its sole discretion change the amount of the fees or the manner in which they are calculated or withdrawn by updating the relevant page. In the event that late payment interest is due, it shall be considered part of the Fee due by the Customer to Hercle.

50. For Services that are contracted on a bilateral basis between Hercle and the Customer, Hercle reserves the right to formulate a specific quote for the Customer that is not subject to prior or subsequent publication on the Site.

51. Unless specified by Hercle, network fees applicable to any Order or Transaction placed, including the withdrawal and deposit of Digital Assets by the Customer will be charged to Customer.

8. Obligations of the Customer

1. The Customer is obligated to strictly adhere to the provisions of these Terms of Use and in particular:

1. observe the Applicable Law at all times;

2. promptly provide Hercle with any information, documents or data requested by Hercle as part of its verification and monitoring activities, including of the Applicable Law, Platform, Services and APIs;

3. take all reasonable security measures to prevent unauthorized use of the Platform, Services, and APIs by persons related to Customer, including Authorized Representatives;

4. provide true, correct, and complete information to Hercle whenever such information is requested and promptly notify Hercle of any changes in such information during the course of the relationship.        

53. The Customer also agrees not to:

1. circumventing, disabling or otherwise interfering with the delivery of the Services, Platform or API or related functionality, including security features or features that impose limitations (including geographical limitations) on the use of the Services, Platform or API (by way of example, the use of VPNs or similar systems);

2. disassemble, reverse engineer, decode, modify, translate, alter or decompile the Services, Platform or API;

3. distribute, copy, rent, lease, sublicense, assign, transmit, sell, or otherwise transfer the Services or any rights therein;

4. violate or share their Credentials with unauthorized third parties;

5. interfere, or attempt to interfere, with the integrity or proper functioning of the Services, Platform, or API;

6. use the Services, Platform or API in an illegal manner or in violation of Applicable Law or, otherwise, in a manner inconsistent with these Terms of Use;

7. use any Hercle Trademarks without Hercle's prior written consent;

8. delete, remove, obscure or in any way alter the copyright or any Hercle Distinctive Sign or any third party trademark or other distinctive sign that may appear for any reason in the use of the Services or within the Platform;

9. use the Services, Platform or APIs for the purpose of conducting, including in the interest or for the benefit of third parties, any comparison, competitive analysis, penetration testing, resilience or vulnerability assessment, security protocol sealing or other similar activities, via software and/or hardware, without Hercle's prior written consent.

54. In the case of a legal entity Customer, the commitments referred to in this Article 8 are assumed by the latter pursuant to Article 1381 of the Civil Code also for employees and collaborators, including Authorized Representatives, of the Customer.

9. Limitation of liability

1. To the maximum extent permitted by Applicable Law, with the express exclusion of cases of willful misconduct and gross negligence, Hercle disclaims any direct or indirect liability with respect to the Services, Platform and APIs. The Services, Platform and APIs are always provided on an "as is" and "as available" basis. To the fullest extent permitted by Applicable Law, Hercle does not make and disclaims any liability or warranty, direct or indirect, express or implied, that the Services, Platform, or APIs will meet Customer's requirements or expectations or be error-free or operate without interruption. Hercle does not and cannot warrant or guarantee, except in cases of willful misconduct or gross negligence, that the Services, including data and information transmitted or shared with Customer will be error-free, accurate, reliable, or complete.

56. Hercle disclaims, to the fullest extent permitted by the Applicable Law, any responsibility for the pricing of the Digital Assets and/or the operation of the markets in which the Digital Assets are traded or on which the Order is executed. By way of example and not limitation, Hercle disclaims, to the fullest extent permitted by the Applicable Law, any responsibility for the correctness, reliability, or consistency of the price formation mechanisms with respect to the Digital Assets or as to the absence of events likely to manipulate, alter, or otherwise interfere with the functioning of the markets for the Digital Assets.

57. The Customer shall have the obligation to indemnify and hold harmless Hercle, its employees and/or contractors, and/or partners from any and all disputes, charges, expenses, condemnation to do and/or give, claims for or condemnation of damages, penalty or loss (including any legal fees incurred) that are a direct or indirect consequence of (i) a breach of these Terms of Use by the Customer; (ii) of the infringement of third party rights by Customer resulting from Customer's non-compliant use of the Services, Platform or API; (iii) of Customer's use of the Services, Platform or API in violation of the terms contained in these Terms of Use.

58. It is understood and expressly agreed by Customer that, in any event and without prejudice to any of the limitations set forth above, Hercle's maximum liability for any compensable damage, charge or injury under these Terms of Use shall not exceed the sum of all fees paid and/or owed to Hercle by Customer in the 12 (twelve) months immediately preceding the time of the occurrence of the compensable breach.

59. Customer expressly acknowledges that Third Party Service providers are not under the control of Hercle and Hercle cannot under any circumstances be responsible for the provision of such Third Party Services, including, without limitation, the quality, compliance with Applicable Law, or availability of such Third Party Services. Customer further acknowledges that: (i) if it were to access such Third Party Services directly, such Third Party Services may be subject to terms of use that differ from those set forth in these Terms of Use or, otherwise, applicable to the Services provided directly by Hercle; (ii) in the event of Customer's direct access to Third Party Services, Hercle will not be a contractual party to the relevant relationship and, therefore, will remain uninvolved in the contractual affairs of the relationship between the providers of the Third Party Services and Customer, unless otherwise specified by Hercle in writing. Customer expressly acknowledges that the use of the Third Party Services may, as the case may be, be a prerequisite for the use of the Services, Platform or APIs and that, in the absence of the relevant contractual relationship between Customer and the Third Party Service provider, Hercle may not be in a position to, without fault, deliver the Services, grant access to the Platform or APIs. Hercle reserves the right to change Third Party Service providers by replacing them at any time with providers capable of delivering similar services without any prejudice to Hercle as a result of such decision. Messaging or communication services provided by third parties and recognized by Hercle as Admitted Channels (e.g., Telegram) are also considered Third Party Services, unless otherwise expressly stated by Hercle.

60. The Customer will be solely responsible for the verification of APIs end-points, the secure storage of the API Key, its own internal databases for order management as well as any other software, firmware or hardware element that the Customer uses to enjoy the Services, including the Internet connectivity used by the Customer, the network infrastructure or, more generally, the connectivity services used.

61. The Customer is, likewise, solely responsible for tax, accounting and regulatory (including regulatory) assessments with respect to the Customer's use of the Services.

62. The Customer assumes all responsibility with respect to the use of its Customer Wallet. By way of example only, Customer assumes all responsibility arising from incompatibility with a particular type of Digital Asset for the receipt and safekeeping of Digital Assets associated with said Customer Wallet as well as for the safekeeping of any private key associated with the Customer Wallet. Hercle disclaims any responsibility for: (i) the security, reliability, usability or any other property or feature of the Customer Wallet used by Customer, it being expressly understood that any loss or damage generated by the use thereof shall be the sole responsibility of Customer; (ii) any specific risk related to the Digital Assets or DLT, including but not limited to the security, reliability and stability of the computer protocols underlying the Digital Assets or DLT, the operation of the transaction validation protocol on the DLT network, the behavior of the network as a whole, including the operation of the miners or validator nodes.

10. Duration of the relationship, termination and termination

63. The contractual relationship governed by these Terms of Use does not have a term of duration. In this regard, the Customer who qualifies as a consumer under Legislative Decree No. 206 of September 6, 2005, may withdraw at any time without penalty or expense:

• By sending an appropriate e-mail to the address given in Article 12 below; or

• by sending a registered letter with return receipt to the following address: Hercle S.r.l., Via Salasco 3, 20136, Milan, Italy.

he Customer who does not qualify as a consumer (e.g., a legal entity) has the right to terminate upon notice to Hercle sent to the address indicated in Article 12 with at least 30 (thirty) days' notice. Hercle has the right, in any case, to terminate the contractual relationship with the Customer, without the obligation to provide any reasons, by sending the Customer a written notice at least 30 (thirty) days in advance.

64. Hercle may immediately terminate the contractual relationship with Customer by sending a written notice to the contact details set forth in Article 12 below in the following cases: (a) in the event that Customer's uses of the Platform, APIs or Services are found to be contrary to these Terms of Use; (b) in the event that Customer's uses of the Platform or Services are found to be causing, or, which on the basis of Hercle's reasonable and prudent judgment may cause, damage, interruption or disruption to the Services, APIs or Platform; (c) in the event that Customer is in violation of requirements established by law or by Hercle with respect to the Applicable Law, including the AML Regulations; (d) Customer fails to comply with a request for supplementation of information, data or fails to cooperate with Hercle as requested by Hercle; (e) Customer fails to make payment of amounts owed by Customer to Hercle within 24 (twenty-four) hours from the date of a Delayed Settlement Order and 3 (three) days in all other cases. In cases where Hercle has the right to terminate the contractual relationship, Hercle may, before resorting to termination of the relationship, apply suspension of the Services, including any Orders entered on the date of suspension, and request additional data or information from the Customer. If Hercle does not consider such data or documents to be complete, true, adequate or sufficient, it may, in its sole discretion, proceed to terminate the contractual relationship with the Customer under the terms set forth above.

65. The termination of the contractual relationship between Customer and Hercle, resulting from a termination or cancellation scenario pursuant to Article 10.2 above, will authorize Hercle to: (i) immediately discontinue the provision of all Services as well as the validity of the Credentials and, where the use of the Hercle APIs has been contemplated, the use of the APIs and the deactivation of the relevant API key. Hercle will retain the data required by the Applicable Law within the terms thereof.

11. Changes to Terms of Use and technical interventions on the Platform, Services, or APIs

1. Hercle reserves the right to make unilateral changes to these Terms of Use at any time. In the event of unilateral changes, the following provisions will apply:

1. in the event that the changes are a consequence of regulatory interventions, orders of the competent Authorities, are in the reasonable judgment of Hercle necessary to increase the security or reliability of the Platform, or are ameliorative towards the Customer, Hercle may make such changes at any time and the same shall be effective immediately without prejudice to Hercle's commitment to notify the Customer as soon as possible after the implementation of the aforementioned changes;

2. in the event that the changes result in a worsening of the contractual conditions for the Customer, Hercle will notify the Customer in advance of the planned changes prior to the implementation date of the changes. Within the period specified in the notice, the Customer may terminate these Terms of Use. If the Customer accesses the Platform subsequent to the aforementioned notice, uses the APIs or Admitted Channels to place an Order, or does not exercise the right to withdraw within the specified deadline, the changes will be deemed to have been finally accepted by the Customer.

67. Hercle may perform routine or extraordinary maintenance work at any time and at its sole discretion on the Platform, Services or APIs. Customer agrees that such interventions may result, without triggering Hercle's liability under these Terms of Use, in temporary suspension of the Services and/or temporary unavailability of one or more features of the Platform and/or APIs. Where possible, Hercle will inform the Customer in advance of the unavailability of the systems and/or functionality indicating the time required to perform the interventions. If it contains expected restoration or completion times, this indication shall always be considered indicative and not binding for Hercle.

68. Hercle reserves the right to make updates to the Services, Platforms or APIs at any time. Customer acknowledges and agrees that, where deemed appropriate in Hercle's sole discretion, updates may result in modifying or eliminating certain functionality of the Services and/or Platform and/or API. Customer releases Hercle from any liability related to any damages resulting from potential updates and interventions, unless such damages result from Hercle's willful misconduct or gross negligence.

12. Communications and complaints

1. Customer may communicate with Hercle by sending an e-mail to the following address: support@hercle.financial. In the event that the Services offered include Third Party Services and a direct contact address is available, Customer shall send an e-mail to such direct contact address if its communication relates to Third Party Services. If, in Hercle's judgment, the communication sent by Customer pursuant to this Section 12.1. relates to Third Party Services, Hercle reserves the right to forward the communication to the providers of the Third Party Services and to notify Customer at the same time.

70. Hercle will make communications to Customer: (a) by means of an e-mail sent to the e-mail address provided by Customer to Hercle during the registration process on the Platform, as may be updated by Customer over time; (b) by means of the Platform at which Customer elects as of now domicile for communications relating to the Services; (c) other means or channels identified by Hercle and communicated in advance to Customer.

71. Hercle reserves the right to make general communications (including but not limited to: changes to the general operation of the Site, API or Platform) via the Site. The Customer agrees to regularly access the Site and Platform to monitor for any relevant communications.

72. If the Customer wishes to file a formal complaint, he/she may send an e-mail tosupport@hercle.financial. The complaint, in order to be properly handled by Hercle, must contain, under penalty of inadmissibility: (i) the Customer's first and last name or its name in the case of a legal entity; (ii) a summary description of the fact, behavior or event that led the Customer to make the complaint; (iii) where possible and applicable, a quantification of the value of the complaint in Euros.  The complaint may be written in Italian or English. Hercle agrees to respond, in writing, to any properly filed complaint within the next 30 (thirty) days. Hercle reserves the right to forward the complaint to its partners if required by the Applicable Law or by the contractual provisions governing the relationship between Hercle and the said partner.

13. Intellectual Property

1. All intellectual property rights in and to the Hercle Distinguishing Marks, the Platform, API, Services and Site and all related material (including, but not limited to, derivative works, titles, computer code, graphics, music or sound, text, screenshots, methods of operation, moral rights, "applets" embedded in the Platform or any other software, hardware or sign used by Hercle and related documentation) are owned by Hercle or its licensors or licensees.

74. The Platform, the Services, APIs, and the contents thereof are granted for use by Customer under a limited, revocable license. The Platform may contain material licensed by third parties and, in such case, the parties owning the intellectual property rights to such content may protect, including directly, their rights in the event of a breach of these Terms of Use by the Customer. Reproduction or representation of such licensed material, in any form and for any reason, without the prior consent of Hercle and, where applicable, Hercle's licensors and representatives is prohibited. Except as explicitly set forth in these Terms of Use, all rights not granted to the User are explicitly reserved to Hercle.

75. If Customer chooses to submit feedback or suggestions relating to the use of the Platform, API or Services by signing these Terms of Use, Customer acknowledges that any feedback, questions, suggestions, observations, technical reports, including automated reports, transmitted by any means, relating to the Services, Platform or API shall become the exclusive intellectual property of Hercle. Likewise, Customer expressly acknowledges that: (i) Hercle shall have no obligation to implement feedback, suggestions or observations from Customer; (ii) Customer shall not be entitled to any intellectual or industrial property rights to the Services, Platform or APIs or any right to compensation or benefits of any nature whatsoever as a result of the implementation of comments, feedback, suggestions or observations from Customer.

76. The Customer expressly acknowledges the confidential, proprietary nature as well as the commercial value of the Services, Platform and APIs and is also aware that any disclosure of information relating to or unauthorized use of the Services, Platform or APIs and, more generally, Hercle's technology and know-how, will cause substantial damage to Hercle.

14. Regulatory and Tax Treatment of Digital Assets

1. Hercle does not provide any form of advice regarding the tax and regulatory treatment of Digital Assets or Transactions involving Digital Assets and disclaims any liability in this regard.

78. Except as: (i) imperatively provided for by the Applicable Law; (ii) provided for by Hercle in these Terms of Use; and/or (iii) expressly agreed in writing between the Parties, Hercle shall not assume towards Customer and/or towards third parties (including Italian Tax Authorities) any monitoring and/or tax substitution or similar role with respect to the transactions carried out by Customer and, therefore, the relevant fulfilments shall remain the sole responsibility of Customer. The provision of report generation tools and/or the creation of reports by Hercle, including those of an accounting or financial nature, in the interest of the Customer shall not constitute an exception to the provisions of this Article. In the event that Hercle is obligated under the Applicable Law to act as a tax withholding agent, Hercle shall only responsible for the proper discharge of its legal obligations under the Applicable Law.

79. In the event that Hercle is required to make deductions, withholdings, payments, or any other payment and/or deed, Customer hereby agrees and acknowledges that Hercle may give effect to such actions, including by direct withdrawal of the necessary funds and/or Digital Assets, without Customer's prior consent or authorization.

15. Intransferability of contractual obligations

1. The contractual relationship governed by these Terms of Use is personal. Therefore, the assignment of the same, in whole or in part, or of any of its obligations, rights or faculties by the Customer to any third party without the prior written consent of Hercle is prohibited. Hercle may assign all or part of this contractual relationship (or any of its obligations, faculties or rights) to third parties, including Hercle's own controlled companies, without the need for specific prior authorization from Customer, which, in any event and for all legal purposes, shall be deemed to have been granted by Customer in advance.

16. Processing of personal data

1. Hercle processes the Customer's personal data according to the Applicable Law on the processing of personal data including, in particular, the GDPR. The privacy policy is available at the following link: https://hercle.financial/policies-privacy .

82. The Customer expressly acknowledges that in order to comply with its obligations under the Applicable Law, Hercle reserves the right to record, retain and transfer to third parties (including competent Authorities) data generated by the Customer and/or transmitted at any time to Hercle. Data transmitted via Admitted Channels are also subject to monitoring, retention and analysis.

17. Language and translations

1. In the event that Hercle makes one or more translations of these Terms of Use available to Customer, such translations shall be deemed equivalent to the original. In the event that conflicts of interpretation arise between the Italian version of these Terms of Use and any translations, the Italian version shall prevail over the others.

18. Applicable law and jurisdiction

1. These Terms of Use are governed by and shall be construed exclusively and in their entirety in accordance with the laws of the Italian Republic.  

85. The Customer who qualifies as a consumer resident in Europe should be aware that the European Commission has established an online platform that provides an alternative dispute resolution tool. This tool can be used by the European consumer to non-judicially resolve any dispute relating to and/or arising from contracts for the sale of goods and services concluded online. Accordingly, the Consumer Customer may use such platform for the resolution of any dispute arising from the online contract. The platform for alternative dispute resolution is available at the following link (http://ec.europa.eu/consumers/odr/). Hercle is available to respond to any queries forwarded by e-mail to the contact details indicated in these Terms of Use.

86. For any dispute that may arise in relation to the execution or interpretation of these Terms of Use, the Court of Milan shall have exclusive jurisdiction with the express exclusion of any other jurisdiction that may be concurrent except in the case where the Customer qualifies as a consumer in which case the court of the place of residence or domicile of the Customer shall have jurisdiction pursuant to and for the purposes of Legislative Decree September 6, 2005, no. 206.

Clauses subject to express acceptance by the Customer:

• Article 1.5 "Absence of Advice or Recommendation on Orders or Transactions."
• Article 1.6. "Use of the Services in the exclusive interest of the Customer."
• Article 3.5 "Disclosure of accounts used by Hercle";
• Article 4.4. "Customer's obligation to disclose updated information during the course of the relationship;
• Article 4.6 "Excluded Countries and Further Limitations."
• Article 5 "Provisions applicable to Services, Platforms and APIs."
• Article 7 "Fee"
• Article 8 "Obligations of the Customer"
• Article 9 "Limitation of Liability"
• Article 10 "Term of Relationship, Termination and Termination."
• Article 11 "Changes to the Terms of Use and Technical Interventions on the Platform, Services and APIs"
• Article 14 "Regulatory and Tax Treatment of Digital Assets"
• Article 15 "Intransferability of contractual obligations"
• Article 18 "Applicable Law and Jurisdiction."

Further specific consent:

• Appendix A "Risks of Digital Assets"

APPENDIX A - RISKS OF DIGITAL ASSETS

The Customer expressly agrees and acknowledges that the Digital Assets are characterized by a number of risks and more specifically:

1. Technology Risk: Customer acknowledges and accepts that there may be a risk of malfunction, improper or abnormal operation of the underlying DLT, miners, validators, or other entities, infrastructure, or systems whose activities are necessary for the proper functioning of the DLT. This could adversely affect the availability and proper functioning of the Digital Assets.

2. Volatility Risk: Customer understands and accepts that the value of Digital Assets may vary significantly relative to other Digital Assets or relative to FIAT Currencies. Such volatility may result in a significant increase or decrease in the value of the Digital Assets, depending on market conditions.

3. Risk of Loss of Value: Customer acknowledges and accepts the risk that the Digital Assets may lose value, either partially or totally and suddenly. This could result in the loss of Customer's entire investment in the Digital Assets.

4. Legal and Regulatory Risk: The Customer acknowledges and accepts that the absence of clear and unambiguous regulation of Digital Assets and related services may result in legal and regulatory risks that may adversely affect the value of the Digital Assets or the Customer's ability to transfer or trade such assets.

5. Cyber Risk: Customer acknowledges and accepts the risk that the systems of Hercle, third party service providers and/or Customer may be subject to cyber intrusion, attack or failure, which may result in the temporary or permanent unavailability of Digital Assets or Services.

6. Counterparty Risk: The Customer acknowledges and accepts the risk that, for most Digital Assets, there is no counterparty or issuer against which the Customer can exercise its rights. This may result in the risk of loss of value, failure to realize the transaction, or other adverse consequences.

Customer expressly acknowledges and agrees that the above risks are beyond Hercle's control and that Hercle assumes no liability for such risks.