General terms and conditions (GTC) of OrSuisse AG
THE FOLLOWING TEXT IS AN ENGLISH TRANSLATION OF THE GERMAN ORIGINAL VERSION WHICH IS THE ONLY LEGALLY BINDING VERSION BETWEEN THE CLIENT AND ORSUISSE
Seat: Altdorf (UR)
Commercial Register Nr.: CH-120.3.000.122-5
Address: Rathausplatz 7, CH – 6460 Altdorf
Telephone: +41 – (0)41 – 511 53 88
Date of GTC: May 2017
OrSuisse AG (hereinafter referred to as OrSuisse) is a public company incorporated under Swiss company law and has its seat in Altdorf/Switzerland. It offers its clients the storage of precious metals in specialised high security vaults in Switzerland and further coutries in accordance with art. 472 et seq. Swiss Code of Obligations. These high security vaults are independent of the banking system. In addition, OrSuisse also offers the possibility to store silver, platinum and palladium free of VAT in bonded warehouses. For the precious metals stored by OrSuisse, the client receives warehouse receipts according to article 482 in conjunction with article 1153 of the Swiss Code of Obligations entitling him to demand the surrender of the stored precious metals.
2.1 The general terms and conditions (GTC) shall apply to all transactions conducted between OrSuisse and its clients unless compulsory legal regulations require otherwise.
2.2 With the conclusion of a contract, the storage or retrieval of precious metals, the acquisition or the holding of a warehouse receipt or the utilisation of any further services provided by OrSuisse, the client accepts these GTC and agrees to their validity and applicability.
2.3 It is further possible to conclude individual agreements between OrSuisse and its clients which take precedence over the GTC. Possible GTC of the client apply only when OrSuisse has explicitly accepted them in writing.
2.4 These GTC also apply to all future transactions between OrSuisse and its clients, even if they have not been explicitly agreed upon.
3. Identification of clients
3.1 With reference to the Swiss Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector (Anti-Money Laundering Act, AMLA) in conjunction with the Swiss Anti-Money Laundering Ordinance (Verordnung der Eidgenoessischen Finanzmarktaufsicht ueber die Verhinderung von Geldwaescherei und Terrorismusfinanzierung, GwV-FINMA) issued by the Swiss Financial Market Supervisory Authority, OrSuisse is explicitly not regulated by the Swiss Financial Market Supervisory at the time of the publication of these GTC. However, OrSuisse reserves the right to identify the client without providing any reasons when concluding a contract. In the case of natural persons, the identification will be done by the production of an official identity document with a photograph and the production of a copy thereof, and in the case of legal persons, by the production of a valid trade register excerpt or of a comparable certificate of a foreign registration authority.
3.2 OrSuisse has the right to hand over data to third parties if it is required to do so by Swiss law or on the orders of Swiss official authorities.
3.3 OrSuisse also reserves the right to request a valid photo ID for verification purposes from its clients at any time.
3.4 OrSuisse expressly forbids clients from holding warehouse receipts in trust for third party accounts. This situation would occur if the OrSuisse client according to the warehouse receipt was not the Ultimate Beneficiary Owner (UBO) (see clause 20.6).
4. Ownership and collective deposit
4.1 The ownership of the precious metals stored with OrSuisse remains always with the client. The client has thus a tangible claim for restitution, permitting the separation of his or her property in the case of default of OrSuisse, and which is exempt from the statute of limitations.
4.2 According to art. 484 Section 1 Swiss Code of Obligations, in allocated storage OrSuisse is entitled to warehouse the precious metals of the client with those of other clients of the same kind (collective deposit). In this case, the client has corresponding co-ownership of the collectively deposited goods of the same kind. Each client can demand the retrieval of his lot independently of the other clients, while OrSuisse can undertake the separation of the client's lot without involvement of the other clients (art. 484, sections 2 and 3 Swiss Code of Obligations).
5. Prohibition of borrowing and pledging
5.1 OrSuisse is strictly prohibited from pledging the precious metals warehoused for its clients as collateral for credit transactions to third parties or to hand them over to anyone else except to its rightful owner without explicit instruction in writing from the client.
6. Issuance, collection and exchange of warehouse receipts, storage and retrieval
6.1 For warehousing, OrSuisse only accepts the precious metals it has confirmed to the client in the specified denominations and qualities and with the required specifications (LBMA-certified refiners etc.).
6.2 After deposit of the precious metals and upfront payment of the storage fee, OrSuisse hands over the corresponding warehouse receipts to the client or sends them to him or her by postal mail. The warehouse receipts provide binding information about quantity and type of the stored precious metals and where applicable about prepaid storage fees.
6.3 In the case of shipment of the warehouse receipts to the client by postal mail, OrSuisse commits itself to shipping these receipts within 14 days after their issuance.
6.4 The client is obliged to return the warehouse receipts to OrSuisse upon retrieval of the stored precious metals. Unless no sufficient proof of ownership is presented (e. g. incomplete chain of endorsements), OrSuisse subsequently hands over the precious metals in exactly those denominations and qualities that are mentioned in the warehouse receipt. Prior to retrieving the precious metals, the client has to settle potentially due storage fees and late charges pro rata temporis.
6.5 In allocated storage (collective deposit) OrSuisse is authorized to deliver fungible precious metals of the same class. The client may not claim delivery of refiners by specific manufacturers or issued in specific years.
6.6 In segregated storage the client has the right to receive exactly the precious metals according to the bar- and seal-numbers listed on the warehouse receipt.
6.7 OrSuisse guarantees the client the exchange of one warehouse receipt for another one entitling to the surrender of the same goods at any time.
6.8 OrSuisse verifies the authenticity of all warehouse receipts presented to it. If the result of this verification is negative, OrSuisse can seize the concerned warehouse receipt for additional examination without stating any further reasons.
6.9 A warehouse receipt is only accepted by OrSuisse when it is presented 100 % in full, and when everything written on the warehouse receipt is clearly legibile and identifiable, and when the safety features will be clearly recognisable.
6.10 The client agrees to always ship warehouse receipts to OrSuisse with adequate insurance, and in a way that enables OrSuisse to confirm the receipt. The client bears the burden of proof for the receipt of the warehouse receipts as well as the dispatch risk.
6.11 In the course of a procedure of storage, retrieval or exchanging warehouse receipts, the client is obliged to instantly send in or hand over all relevant documents, warehouse receipts or precious metals upon request (either in writing, electronically or by telephone) from OrSuisse. Should the client not meet this obligation within 7 calendar days, the client is automatically in delay without reminder, and OrSuisse may resign from the initiated procedure (storage, retrieval, exchange etc.) without stating any further reasons.
6.12 Applicable to the handing over of precious metals, warehouse receipts and all other documents issued by OrSuisse: In the case of a personal handing over, objections can only be raised on the spot. In the case of a shipment of warehouse receipts and documents objections can only be made in writing within 14 days after receipt of the shipment. Otherwise, OrSuisse considers the handing over and all related documents and warehouse receipts to be correct and binding.
6.13 The burden of proof for the deficiency of documents, warehouse receipts or precious metals handed over to the client by OrSuisse lies with the client.
6.14 All warehouse receipts issued by OrSuisse are documents of title with the quality of a security (cf. article 482 in conjunction with article 1153 Swiss Code of Obligations).
6.15 When annotating more than one person as owner (e.g. married couple) on the warehouse receipt (endorsement, original title bearer etc.) each of these persons is granted sole signatory rights.
7. Storage location
7.1 OrSuisse guarantees that it will store the precious metals of its clients exclusively in high security vaults in Switzerland and further countries, as listed on the website. At the same time, OrSuisse is free to choose among suitable high security vaults for the storage of the precious metals entrusted to it by its clients.
8. Conclusion of contract
8.1 All offers made by OrSuisse on the internet or in other media are subject to change and non-binding.
8.2 The client has to place a binding request for storage either in writing or electronically. If the request is made verbally or by telephone, the costs as well as the risks and the burden of proof of an incomplete or erroneous transmission rest with the client.
8.3 A legally valid storage contract with OrSuisse is concluded when the warehouse receipts are issued to the client after payment of all fees due.
8.4 OrSuisse is free to decline the request for storage of a client without providing any reasons.
9. Proof of authenticity, acceptance of bullions meeting LBMA standards, publication of the serial numbers of warehouse receipts
9.1 OrSuisse verifies the authenticity of all precious metals submitted for storage, as well as the warehouse receipts presented to it in order to retrieve the stored precious metals.
9.2 For warehousing in collective deposit OrSuisse only accepts bullions refiners which are certified by the London Bullion Market Association (LBMA, http://www.lbma.org.uk).
9.3 It is thus guaranteed that the client will always receive authentic precious metals and – in collective deposit – from exclusively LBMA certified refiners.
9.4 OrSuisse is further obliged to verify the external condition of the precious metals before warehousing them. OrSuisse reserves the right to decline the acceptance of precious metals for warehousing without stating any reason.
9.5 OrSuisse enables the client to search for warehouse receipt serial numbers on its webpage and to view further details of the warehouse receipt by combining the serial number with the corresponding verification code. The information thus provided is not legally binding and does not replace a proof of authenticity of the warehouse receipt, which can only be conducted by OrSuisse.
9.6 OrSuisse generally does not provide any information about the authenticity or the character of a warehouse receipt by phone. However, OrSuisse can provide the client with legally non-binding information about the existence of the serial number of a warehouse receipt.
10.1 Twice a year, a renowned auditing firm audits the holdings and the character of the precious metals warehoused in the high-security storages and their conformance with the issued warehouse receipts and prepares an official final report. OrSuisse will publish the most recent report in publicly accessible fashion on its webpage.
10.2 The auditing firm registers the number, the character and the shape of the warehoused bullions.
10.3 All deposit and retrieval operations are effected according to the dual control principle.
11. Commencement, duration and cancellation of contract
11.1 The storage contract between the client and OrSuisse commences with the issuance of the warehouse receipts after storage of the corresponding precious metals and ends with the handing over of the precious metals during the retrieval procedure.
11.2 The storage contract is generally concluded for the fixed duration of the prepayment of storage fees (period of validity).
11.3 If the period of validity of the warehouse receipt is exceeded, the storage contract is automatically renewed. In this case the client is obliged to renew his or her warehouse receipt (warehouse receipt exchange) or to retrieve the warehoused goods without any delay. The additional duration of storage will be billed to the client pro rata temporis.
11.4 The client can demand retrieval of his precious metals at any time. For this purpose, OrSuisse arranges a retrieval appointment at its offices (during its regular business hours), usually within 5 working days, at the latest within 30 days after the receipt of the client's wish to retrieve the stored goods and the confirmation of an appointment by OrSuisse.
11.5 OrSuisse may cancel the storage contract with 30 days' notice at any time.
12. Contractual incapacity and death of a client, delegation of authority
12.1 Should OrSuisse have any indication for a client's incapacity to contract, it can demand proof for the capacity to contract with a confirmation from a notary or a medical doctor.
12.2 In the case of the death of a client, OrSuisse will only hand over the warehoused precious metals against presentation of the corresponding warehouse receipts and a valid certificate of inheritance issued by the competent authority either directly to the totality of heirs or to a third party designated by them.
12.3 A client's delegations of authority have to be in written form and notarially certified by a competent person and have to refer specifically to the client's warehouse receipts. Additionally, they have to be made out to last beyond the death of the client.
12.4 A delegation of authority can only be revoked for the future by registered letter to OrSuisse. The revocation will become effective upon receipt of the registered letter by OrSuisse.
12.5 All documents in foreign languages have to be submitted to OrSuisse in a German translation attested by a notary public.
12.6 All costs incurred by OrSuisse in the context of legal clarifications of the above mentioned situations can be billed to the client or to his estate.
13. Fees and costs
13.1 For the storage of the precious metals in the high security vaults, the management and the administration of the warehoused stocks (storage costs), a fee will be charged to the client (cf. art. 485 Swiss Code of Obligations). The storage fee is shown as a percentage and is measured in grams of the corresponding precious metal, payable in Swiss Francs converted at the current exchange price of the precious metal at the time of billing.
13.2 Storage fees shall be paid in advance for a specific period of storage.
13.3 If the duration of prepayment (period of validity) is exceeded, the accruing storage fees and late charges will be billed to the client pro rata temporis either upon retrieval of the warehoused goods or upon an exchange of the warehouse receipts.
13.4 In case of retrieval of the warehoused goods before expiry of the prepaid storage time, the client will receive a pro rata credit note for the not yet begun full years. The reimbursement shall be paid out to the client at the exchange price of the precious metal at the time of the generation of the credit note, usually within 10 days after completion of the retrieval operation.
13.5 With the exchange of a warehouse receipt, the prepaid storage time is credited pro rata temporis and the new storage fees are charged to the client.
13.6 OrSuisse reserves the right to charge the client additional fees for handling (storage, retrieval, exchange of warehouse receipts, shipping costs, verification, refining etc.). The price list of OrSuisse at the time of the event shall apply.
13.7 Should OrSuisse incur any damages due to the receipt of warehouse receipts or precious metals from the client resulting from their deficiencies (damages etc.) or a deviation from the range and required specifications of products as published on the webpage of OrSuisse, it reserves the right to charge these costs to the client.
13.8 The warehouse receipt calculator and the virtual storage on the webpage of OrSuisse serve only as an indication of fees and current values. All information provided by the warehouse receipt calulcator, the virtual storage or by OrSuisse are not legally binding. A legally binding information about fees results only from invoices OrSuisse sends to the client.
14. Terms of payment, delay and counterclaims
14.1 Invoices are generally payable without delay upon receipt by the client. In the case of retrieval of the precious metals or of the warehouse receipts in person, the invoice is due immediately and payable without any deduction at the appointment. Should the client not fulfil his or her payment obligation, he or she is instantaneously in delay without further overdue notice. In this case, OrSuisse is entitled to charge the client all resulting damages from the deferred payment (variation in exchange prices of precious metals, other expenses).
14.2 A delayed delivery by OrSuisse only occurs when the delivery date which has been agreed upon with the client and 6 additional weeks after receipt of a written overdue notice from the client have passed without delivery.
14.3 A delayed delivery of OrSuisse does not affect the invoices to the client for which the exchange prices of the precious metals are used.
15. Further expenses
Shipment costs or public charges such as taxes and customs duties are charged to the client separately (cf. art. 485 Swiss Code of Obligations).
16. Charges and taxes
OrSuisse is not liable for charges, customs duties, taxes or fines incurred in relation to shipment or storage.
17.1 There is an insurance policy for the full coverage for all warehoused precious metals in the high security storage facilities. An Evidence of Insurance for the storage facility chosen by the client can be presented to the client at his or her discretion.
17.2 OrSuisse controls and obliges the respective storage facility providers to adjust the insurance coverage in the event of exceptional circumstances (insurance market problems, severely rising insurance premiums, insurance ceilings etc.).
17.3 In any case of damage, the client is only entitled to a compensation to the same amount as OrSuisse obtains from the insurance company less possible claims from OrSuisse.
18. Loss of warehouse receipts
18.1 For his own safety, the client has to report any loss of a warehouse receipt to OrSuisse immediately and in writing.
18.2 The reissuance of a lost warehouse receipt shall only be made after completion of a mortification procedure/nullification in accordance with the general and specific legal requirements of the Swiss Code of Obligations.
18.3 The initiation and conclusion as well as the costs of such a cancellation procedure fall into the responsibility of the client whose warehouse receipt was lost.
19. Right of lien and retention
19.1 Should the client be in delay with his obligations despite two overdue notices, the client grants OrSuisse a lien on all his warehoused precious metals. OrSuisse is therefore authorized to take them into possession and to sell them at customary rates on the market up to the amount of the due claims and additionally incurred costs. Any remaining residual balance from the sale will be transferred to the account specified by the client.
19.2 Regardless of this right of lien OrSuisse possesses the right of retention for its claims against the client (art. 485, section 3 Swiss Code of Obligations, art. 895 et seq. Swiss Civil Code).
20. Exclusion of clients
20.1 The client and – for legal entities – his or her authorized signatories declare not to possess citizenship or a green card of the United States of America (US), not to be domiciled there, not to be liable to pay tax in the US for any other reason (e.g. joint assessment with spouse) and that they do not fulfil the requirements of the "substantial presence test" (see IRS) and that he or she is not an unincorporated firm or corporation or any other association which was either established or is registered or liable to tax in the US, a US state, territory or possession of the US according to US law.
20.2 The OrSuisse client agrees not to hold their account in trust for a third party and particularly not for those parties mentioned in clauses 20.1, 20.3 and 20.4.
20.3 In addition to clause 20.1 this exclusion extends further to Puerto Rico (PR), United States Virgin Islands (VI), Guam (GU), Northern Mariana Islands (MP), American Samoa (AS), United States Minor Outlying Islands (UM), Marshall Islands (MH), Federated States of Micronesia (FM), Palau (PW), Afghanistan (AF) und Iraq (IQ).
20.4 Moreover sanctioned persons, entities or organizations according to the SECO (Swiss State Secretariat for Economic Affairs) sanction list are barred from purchasing or holding this warehouse receipt.
20.5 The exclusion also extends to domiciliary companies whose beneficial owners meet at least one of the above mentioned criteria for exclusion.
20.6 If Orsuisse should become aware of this adverse situation as mentioned above, OrSuisse expressly reserves the right to end the deposit agreement within a period of 30 days and to hold the client liable for all ensuing costs.
Transports of the warehoused precious metals from and to the vaults occur always in the name, at the behest, risk and cost of the client. These transports are not insured by OrSuisse and usually occur under the insurance protection of the respective transport company. OrSuisse accepts no liability for any transport damages or losses resulting from the transport.
22.1 OrSuisse is only liable to the client for damages that were caused by OrSuisse or its auxiliaries with unlawful intentions or in gross negligence regarding OrSuisse's storage obligation and for damages that were caused culpably in the context of other services. The burden of proof for the culpability of OrSuisse or its auxiliaries lies with the respective client.
22.2 OrSuisse is not liable for damages that were caused to the client by force majeure.
22.3 The client is liable to OrSuisse for all damages resulting from his warehoused goods.
22.4 OrSuisse verifies the authenticity of all precious metals on delivery and is thus able to guarantee the client the authenticity of all precious metals upon retrieval.
23. Privacy and data protection policy
23.1 All statutory provisions and limitations of the Swiss Data Protection Act will be respected in full. Exceptions are the cases mentioned in section 3.
23.2 The client agrees to the processing and use of his or her personal data for OrSuisse's internal purposes.
23.3 The client also agrees to the forwarding, processing and use of his or her personal data for the purposes of the chosen precious metals dealer in the context of an offer request from a precious metals dealer through the website of OrSuisse.
23.4 A deletion of the client's data stored with OrSuisse is impossible.
24. Reservation of the right of modification
24.1 The GTC apply in the version published on the website of OrSuisse.
24.2 Changes and addenda from the client have to be accepted by OrSuisse in writing to apply.
24.3 Changes and addenda from OrSuisse become applicable and legally effective within 14 days after publication on OrSuisse's website, unless the client objects to them in writing during this period.
24.4 In the case of an infringement by a state or an agency affiliated or related to it which poses an impending danger – even of temporary nature – to the smooth execution of its business (e.g. deposit and retrieval operations), OrSuisse is entitled to transfer its rights and obligations under the deposit agreement to one or more third parties (transfer of agreement). The transfer, mentioning all affected warehouse receipts, will be published on OrSuisse's website and will become applicable and legally binding as of the moment of publication. In the case of a transfer of contract, the client is entitled to object to the transfer or to terminate the contract with effect as of the date of the transfer within 21 days.
25. Applicable law, place of jurisdiction and final provisions
25.1 The storage contract as well as all other services provided by OrSuisse for the client are without exception subject to Swiss Law.
25.2 The place of jurisdiction for all disputes arising from the contractual relationship between the client and OrSuisse is Zurich (ZH), Switzerland.
25.3 If a condition of these General Terms and Conditions should be or become invalid or inapplicable, this will not affect the validity of the remaining conditions.