Legal Terms – Bismarck Select / Swan

Article 1: Preamble

The General Terms of Use, hereinafter “ToU”, are concluded between

• Swan SAS – Zweigniederlassung Deutschland, Friedrichstr. 114A, 10117 Berlin, the branch of SWAN SAS, a simplified joint-stock company (société par actions simplifiée) with a capital of €22,840.20, having its registered office at 95 avenue du président Wilson, 93100, Montreuil – RCS 853 827 103. SWAN is an electronic money institution authorised to provide payment services, approved under number (CIB) 17328 by the French Prudential Supervisory Authority (Autorité de contrôle prudentiel et de résolution (ACPR), 4, place de Budapest CS92459 – 75436 Paris Cedex 09 and subject to the supervision of this authority.

  Hereinafter “SWAN” or the “Institution”, on the one hand, And

• The End Customer, a legal entity or natural person acting on their own behalf for professional or non-professional purposes,

  Hereinafter referred to as the “End Customer”, on the other hand.

  Together referred to as the “Parties”.
  The ToU also include the tariff conditions attached thereto.

  The End Customer accepts without reservation the ToU brought to their attention when subscribing to the Services.

  The End Customer may at any time request a copy of the ToU from SWAN in a durable medium.

Article 2: Definitions

In the ToU, capitalised terms and expressions have the meanings set out below, whether

used in the singular or plural.

Card: means the means of payment in the form of a physical or virtual card issued by SWAN allowing the End Customer to make payments and withdrawals.

Swan Account or Account: means a payment account opened with Swan in the name of the End Customer

• End Customer: means any legal or natural person, registered or resident in one of the Member States of the European Union (EU) or the European Economic Area (EEA) that holds or wishes to hold a Swan Account. The End Customer may act for professional purposes (commercial, industrial, craft, liberal or agricultural) as an entrepreneur within the meaning Sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch; “BGB”) (Unternehmer) or for non-professional purposes as a consumer within the meaning of Sec. 13 BGB, which can lead to specifications in certain Articles.

Security Code: means the personalised code of the End Customer or Authorised User allowing them to access the Swan Interface through the Personal Strong Authentication Device.

Personal Strong Authentication Device: means the technical device belonging to the End Customer in order to verify their identity or the validity of a Payment Order, and meeting the applicable legal and regulatory requirements. The use of the strong authentication device involves the use of Personalised Security Credentials.

Personal data: means any information relating to an identified natural person or person who is identifiable, directly or indirectly.

Personalised Security Credentials: means the personalised data that authenticates the identity of the End Customer through the use of the Personal Strong Authentication Device.

Swan Interface: means the Swan Account management module accessible from a website made available to the End Customer by SWAN and the Partner. The Swan Interface allows the End Customer to consult their Swan Account and to prepare or carry out Payment Transactions. The Swan Interface can be accessed at the following address: https://banking.swan.io.

Business Days: means any calendar day on which SWAN maintains the business operations necessary for the execution of Payment Transactions. SWAN maintains the business operations necessary for the execution of Payment Transactions on all working days excluding Saturdays, December 24th (Heiligabend) and 31st (Silvester), public holidays in Berlin and working days on which SWAN’s account keeping office is closed due to local peculiarities (e.g., carnival etc.) and these have been published in due time by the branch.

Payment Transaction: means the withdrawal of funds or the transfer of funds from an End Customer to the account of the payee, carried out in accordance with the conditions set out in these ToU.

Order: means the instruction given by an End Customer to SWAN, carried out under the conditions provided for in these ToU, in order to execute a Payment Transaction.

After carrying out the necessary checks, SWAN accepts the opening of the Account or refuses it either on a discretionary basis or, if required by law (e.g. due to the results of the carried-out checks), without giving reasons or the right to compensation of any costs incurred by the End Customer in the account opening process. Swan always and indicates its decision to the End Customer.

The opening of an Account is done on the basis of the information transmitted by the End Customer or the Partner (after agreement of the End Customer) to SWAN. The End Customer must ensure that this information is true, accurate and complete.

In the case of use for nonprofessional purposes, the End Customer must be of full age, capable and in possession of a valid identity document (national identity card, passport or residence permit in particular).

In the case of use for professional purposes, the End Customer must be:

• a legal person or a natural person of full age, capable, acting for their own account

  for professional purposes (commercial, industrial, craft, liberal or agricultural);

• and its representative has all necessary authorisations to open and use the Swan Account.

  For the opening of the Account, SWAN may ask to collect the information and documents listed below, in whole or in part:

  The End Customer is a legal or natural person acting for professional purposes:
  

  • its name, legal form, capital, address of its registered office, description of its activity and identification number;

  • an extract from the official register establishing its legal existence and containing the above information;

  • a copy of a valid official identity document of the legal representative and their telephone number;

  • a copy of the articles of association;

  • any appropriate document or evidence enabling the identification of persons involved in the use of the Swan Account, i.e. the beneficial owners within the meaning of banking regulations (which are understood in particular, within the meaning of Sec. 3 of the German Money Laundering Act (Geldwäschegesetz,“GwG”), as the natural person(s) who hold, directly or indirectly, more than 25% of the Company’s share capital or voting rights or who exercise, by any other means, a power of control over its management, administrative or executive bodies or over the general meeting of its shareholders);

  • the details of an account opened in an establishment in the European Union or the European Economic Area;

  • a description of its activity;

  •  its last tax return or its equivalent in foreign law;Payment Transactions on the Swan Account are denominated in Euros. SWAN does not provide currency exchange services.

     any other supporting documents required by SWAN for conducting its due diligence or required by European or German Law.
    
    The End Customer must inform SWAN as soon as possible of any information or modification of information concerning their situation.

    Where the End Customer is a natural person, they confirm that they are not a US national within the meaning of Decree No. 2015-1 of 2 January 2015. Where the End Customer is a legal entity, it confirms that none of its beneficial owners (within the meaning of Sec. 3 para. 1-2 GwG) is a US national within the meaning of the same text.

    At any time, SWAN may ask the End Customer for additional documents justifying the information already provided. In the absence of a response from them, their Swan Account may be closed.

    Article 5: Functioning of the Swan Account

    5.1. How the Swan Account works

    Orders and Payment Transactions can only be carried out within the credit balance of the Swan Account. Before carrying out Payment Transactions, the End Customer must ensure that they have an available and sufficient balance in their Swan Account, taking into account all Orders and Payment Transactions already carried out and not yet debited.

    5.1.1. Crediting the Swan Account

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    The funds in the Swan Account do not constitute repayable deposits from the public within the meaning of banking and financial regulations. The Account is a non-interest-bearing account. The funds of the End Customer are protected by being kept in a dedicated account with a French credit institution. This means that the funds collected can never be used to settle SWAN’s debts in the event of insolvency and cannot be seized by any of SWAN’s creditors.

    5.1.2. Execution of Payment Transactions

    The End Customer may, within the limits set out in these ToU, issue and receive Payment Transactions.

    The execution of a Payment Transaction implies, on the part of the End Customer, the transmission of an Order to SWAN. To transmit an Order, the End Customer must first authenticate themselves using the Personal Strong Authentication Device.

    Before transmitting an Order, it is the End Customer’s responsibility to ensure that they have sufficient funds in their Account to cover the amount of the Payment Transaction concerned and any related fees, as agreed in the pricing conditions attached hereto.

    Where applicable, it is up to the End Customer to fund their Account under the conditions provided for in Article 5.1.1 hereof, before the Order can be validly transmitted to SWAN for execution. The Order is likely to be refused if the balance of the Account is lower than the amount of the Payment Transaction (including fees) on the date of execution of the Order by SWAN.

    Orders are executed within one (1) Business Day of transmission of the Order (and on the agreed execution date for forward or standing Orders). Any Order sent to SWAN after 9:00 p.m. is deemed to be sent on the following Business Day. If this transmission takes place outside a Business Day, the Order is deemed to have been transmitted on the following Business Day. As an exception, Orders to execute Payment Transactions between two Swan Accounts are executed on the same day, in real time.

    The execution of an Order may be suspended by Swan for the time necessary to conduct further checks, such as investigating the nature and purpose of the transaction according to GwG. Swan may contact the End Customer to obtain information about the Payment Transaction and may request supporting documentation relating to the Payment Transaction.

    5.1.3. Payment orders linked to the payment account Use of the Card

    The Card is strictly personal and nominative and remains the property of SWAN.

    The Security Code or the Personal Strong Authentication Device is necessary for the payment of a good or a service to a merchant equipped with a physical or virtual Electronic Funds Transfer at Point of Sale (Eftpos) terminal bearing the Mastercard logo.

    The use of the Card may be subject to restrictions. Those restrictions may be defined by the Partner, according to its own terms of use which have been approved by the End Customer.

    Payment Transactions will be immediately deducted from the available balance on the End Customer’s Swan Account and will be debited from the Swan Account as soon as SWAN receives the debit request from the creditor.

    The payment Order is irrevocable from the entry of the Security Code or another authentication (such as the use of the Personal Strong Authentication Device). Consequently, the End Customer cannot withdraw their acceptance. SWAN is not involved in any dispute that may exist between the End Customer and the payee.

    SWAN may refuse without prior notice Orders or Payment Transactions due to their nature or amount, in the context of fighting against fraud or meeting regulatory requirements. The End Customer is informed by means of an e-mail or by phone by SWAN and provided that this information is compatible with the applicable regulations.

    The storage and use of the Cards handed over to them is the sole responsibility of the End Customer.

    If a physical Card is ordered, SWAN sends the Card(s) to the address indicated by the End Customer. The Security Code is communicated separately.

    If a virtual Card is ordered, it can be accessed directly from the Swan Interface. For security reasons, the use of the Personal Strong Authentication Device is necessary to reveal the information allowing its use (card numbers, expiry date).

    If the Security Codeis entered incorrectly three times in a row when using a Card, the Card will be blocked. The End Customer must then contact SWAN to order a new physical Card, under the pricing conditions appended to these ToU.

    Funding the Account by Card

    The End Customer can credit their Swan Account by credit and/or debit card they hold, which is issued by a third-party payment services provider, on a one-off or recurring basis. The credit and/or debit card by which the Swan Account will be credited must be held by the End Customer and must have been previously registered and validated on the Swan Interface.

    The maximum amount with which the End Customer can credit their Swan Account at each top-up as well as the maximum top-up limit over a given period is determined by SWAN which reserves the right to reserve this functionality to eligible Customers only. The available top-up amount corresponds to the difference between the maximum amount and the amount consumed over the given period.

    If they are eligible to use this functionality, the End Customer may authorise SWAN to top up their Swan Account with the credit and/or debit card previously registered on the Swan Interface in order to execute a payment Order for which the balance of their Swan Account is insufficient, within the limit of the available amount of the top-up by card.

    Card top-up Orders are automatically debited from the account on which the card operates.

    The End Customer, holder of the card to be debited, must ensure that on the day of the execution of the transfer of funds by card, the account on which the card operates has a sufficient and available balance and maintain it until the corresponding debit.

    Cash withdrawals

    The End Customer may, subject to authentication, make cash withdrawals with their Card at all cash withdrawal devices displaying the Mastercard logo, within the limits determined with SWAN and, if applicable, the Partner, and of the provision on their Swan Account.

    Receipt of SEPA transfers

    The End Customer expressly mandates SWAN to receive on their Swan Account Payment Transactions by SEPA transfer in Euros from an account opened with an institution located in the European Union or the European Economic Area.

    SWAN receives the funds in the name and on behalf of the End Customer and credits their Swan Account immediately upon receipt of a valid and executable instant SEPA Transfer Order.

    As soon as the Payment Transaction is credited to the End Customer’s Swan Account, they receive a payment summary. It is up to the End Customer to inform SWAN as soon as possible if the funds are not intended for them.

    SWAN is not involved in any dispute that may exist between the End Customer and the issuer of the payment.

    Issue of SEPA transfers

    The End Customer may issue a payment Order by transfer from their Swan Account to an account opened in an institution located in the European Union or the European Economic Area.

    A transfer payment Order may be one-off or standing, conventional or instant, and must include the information requested on the Swan Interface and, where applicable, by the Partner. The SEPA Transfer Order is denominated in Euros.

    Transfer payment Orders may be prepared from the Partner’s interface, if the End Customer has given it permission to do so. Validations of transfers by the End Customer are collected by their Personal Strong Authentication Device. They are time-stamped and kept for the applicable statutory period by SWAN.

    Transfer payment Orders are irrevocable from the moment they are put into circulation in the payment system by SWAN. After this date, no cancellation is possible. SWAN may refuse to execute a transfer payment Order that is incomplete, incorrect or for any other reason. Considering that no overdraft is allowed on the Swan Account, in the event of an insufficient balance, the transfer payment Order will be automatically refused. In the event of an anomaly or material error, SWAN may refuse the Order and will indicate to the End Customer the reason for the error, unless this is impossible or legally prohibited, as well as, if possible, the procedure to follow to correct the anomaly.

    In case of suspicion of fraudulent use of the Swan Account, of unauthorised use, or for reasons relating to security, SWAN may block a transfer payment Order, without the need to give reasons to the End Customer. A payment transfer Order refused by SWAN is deemed not to have been received and cannot engage SWAN’s liability for any reason and in no case give rise to the payment of compensation to the End Customer.

    The transfer payment Order is confirmed to the End Customer directly on the Swan Interface.

    Standard SEPA transfers – Execution times

    For standard SEPA transfers, the time of receipt of a transfer payment Order is the date on which SWAN confirms its receipt to the End Customer. If the transfer payment Order is received after 9:00 pm on a Business Day or is presented on a day that is not a Business Day, the Order is deemed to have been received by SWAN on the next Business Day.

    The transfer payment Order is executed within one (1) Business Day from the date of its receipt by SWAN.

    This period may be extended when verifications are necessary to check its validity, in particular but not exclusively, in case of serious doubts as to a fraudulent use of the SWAN Account or because of the rules relating to the fight against money laundering and terrorist financing.

    Instant SEPA transfers – Specificities and execution times

    The instant SEPA transfer is an occasional SEPA transfer with instant execution.

    Subject to service availability, the instant SEPA transfer is available without interruption 24 hours a day, 7 days a week, every day of the year. These transfers are limited to a maximum amount of one hundred thousand Euros (€100,000).

    The recipient must have a bank or payment account opened with an institution located in the European Union or the European Economic Area and able to execute instant SEPA transfers.

    The time of receipt of an instant transfer payment Order is the date on which SWAN confirms its receipt to the End Customer. The amount of an instant transfer is then credited to the beneficiary’s account no later than ten (10) seconds after the transfer is accepted.

    This period may be extended when verifications are necessary to check its validity, in particular but not exclusively, in case of serious doubts as to a fraudulent use of the SWAN Account or because of the rules relating to the fight against money laundering and terrorist financing.

    Receipt of SEPA Direct Debit Orders

    When the End Customer wishes to authorise a creditor to issue a SEPA Direct Debit transaction in Euros and SWAN to debit their Swan Account, they give SWAN the power to accept on their behalf the SEPA Direct Debit or B2B mandate provided by its creditor.

    The creditor must have a bank or payment account opened with an institution located in the European Union or the European Economic Area.

    SWAN must have received the SEPA Direct Debit Payment Order at the latest one (1) Business Day before the scheduled execution date.

    The value date of the Payment Transaction in question cannot be earlier than the day the amount is debited from the Swan Account. SWAN may reject or return a Direct Debit Payment Transaction upon presentation of the Direct Debit Payment Order or subsequently within four (4) Business Days for any authorised reason and in particular in case of insufficient funds on the Swan Account.

    In all cases where the End Customer, acting for non-professional purposes, is entitled to do so (for example, if they have not given their acceptance to the creditor), the End Customer, acting for non- professional purposes has the possibility with SWAN:

    • to stop a Direct Debit Payment Order before its execution, at the latest at the end of the Business Day preceding the due date before the deadline defined by SWAN;

    •  to revoke a mandate and withdraw its acceptance to any Direct Debit Payment Order related to this mandate at the latest at the end of the Business Day preceding the due date, before the deadline defined by SWAN. It will only take effect for Direct Debit Payment Orders attached to this mandate that have not yet been transmitted to the creditor’s payment service provider.

      This revocation is made to their creditor by mail or, where appropriate, according to the procedure laid down by the creditor. Subject to the moment of irrevocability specified above, the effect is that any subsequent Direct Debit Transaction attached to the revoked mandate is deemed unauthorised. The request for revocation or opposition must be made in writing to SWAN’s customer service department at the following address: support@swan.io or from the Swan Interface.It is specified that a SEPA Direct Debit Payment Order may be the subject of a reimbursement request by the End Customer acting for non-professional purposes to SWAN within eight (8) weeks from the debiting of the Swan Account or, in case of unauthorised Payment Orders, within thirteen (13) months, leading to the automatic reversal of the debit of the End Customer’s Swan Account by SWAN, without prejudice to the results of the search for proof. No requests for partial reimbursement are allowed. The period shall commence only if SWAN has informed the End Customer of the debt in accordance with information requirements under Article 248 Sec. 7, 10 or Sec. 14 of the Introductory Act to the German Civil Code (Einführungsbuch zum Bürgerlichen Gesetzbuche, “EGBGB”); otherwise, the commencement of the period shall be determined by the date of such notification.A SEPA Direct Debit Payment Order may be the subject of a reimbursement request by the End Customer acting for professional purposes to SWAN within seven (7) Business Days from the debiting of the Swan Account or, in case of unauthorised Payment Orders, within one (1) month, resulting in the automatic reversal of the debit entry on the End Customer’s Swan Account by SWAN, without prejudice to the results of the search for proof. No requests for partial reimbursement are allowed.

       

      Funding of the Account by SEPA Direct Debit

      When the End Customer wishes to credit their Swan Account by direct debit, they expressly mandate SWAN to receive on their Swan Account SEPA Direct Debit Payment Transactions in Euros from a bank account in their name at an institution located in the SEPA zone.
      The End Customer is responsible for the validity of the mandate and the information it contains. The mandate must contain the numbers of the accounts to be debited and credited, the identity of the holders of the accounts to be debited and credited, the postal address of the creditor, the identification of the bank in which the account to be debited is domiciled, the date of signature of the mandate and the mandate reference.

      SWAN receives the funds on behalf of and for the account of the End Customer and credits their Swan Account immediately after receiving the funds from the other institution of the End Customer.

      Finally, the End Customer receives a payment summary. It is up to the End Customer to inform SWAN as soon as possible if the funds are not intended for them.

      At any time, the End Customer may decide to terminate the SEPA mandate by informing SWAN at the following address: support@swan.io. Termination of the mandate will be effective no later than three (3) Business Days from the date of receipt by Swan. Direct Debit Orders made on a date prior to the effective termination date of the mandate will not be affected by the termination and will remain in full force and effect.

      SWAN may at any time limit the possibility for the End Customer to top up their Swan Account by direct debit above a certain amount for a certain period of time. Moreover, when the End Customer funds their account by a SEPA direct debit, SWAN may have to block all or part of the credited funds for a period of three to five interbank working days. These two limitations will be based on a risk assessment analysis conducted by Swan depending on the characteristics of the End Customer. Swan will undertake to inform the End Customer about the limitations applicable to them.

      Issuance of SEPA Direct Debit Orders

      Subject to SWAN’s approval of their eligibility for this functionality, the End Customer acting for professional purposes may expressly mandate SWAN to receive on their Swan Account SEPA Direct Debit Payment Transactions in Euros originating from a bank account in the name of one of its customers in an institution located in the SEPA zone.

      The End Customer must first fill in the information relating to their professional activity in the corresponding section on the Swan Interface. SWAN then performs an analysis of their eligibility to receive SEPA Direct Debits. SWAN reserves the right to apply limits at any time to the value of SEPA Merchant Direct Debit Payment Transactions that may be issued in connection with the End Customer’s Swan Account.

      A mandate authorising SEPA direct debits, whether one-off or recurrent, must be filled in by the holder of the account to be debited and contain the numbers of the accounts to be debited and credited, the identity of the holders of the accounts to be debited and credited, the creditor’s postal address, the identification of the bank where the account to be debited is domiciled, the date of signature of the mandate and the mandate reference. The End Customer is responsible for the validity of the mandate.

      If it is evident to SWAN that a creditor’s information provided by the End Customer cannot be allocated to a payee, a payment account or a payment service provider of the payee, SWAN shall inform the End Customer thereof without undue delay and, if necessary, return the amount of the credit transfer to the End Customer.

      SWAN receives the funds in the name and on behalf of the End Customer and credits its Swan Account immediately after receiving the funds from the End Customer’s customer, debtor of the Payment Transaction.

      Finally, the End Customer receives a payment summary. It is up to the End Customer to inform SWAN as soon as possible if the funds are not intended for them.

      The End Customer may only reimburse the sums deducted if the reimbursement is linked to the transaction covered by the mandate, is made after the receipt of said sums in their Swan Account and in no case for an amount greater than the sums initially debited.

      When the End Customer receives SEPA direct debits, the End Customer accepts that SWAN mitigates its financial security risk by preventing the balance on the End Customer’s Swan Account from falling below a certain amount. This amount is determined at Swan’s discretion according to the risks specific to the End Customer’s operations and its characteristics (sector of activity, value and frequency of operations, etc.). In order to mitigate this risk, the End Customer may also agree to provide personal security which will be subject to Swan’s written acceptance.

      SWAN reserves the right to suspend SEPA Merchant Direct Debit payments to the End Customer’s Swan Account at any time if it deems such suspension to be necessary (for example, but not limited to, excessive or excessively early reimbursements or any other suspicious activity related to the End Customer’s Swan Account).

      SWAN is not involved in any civil or commercial dispute that may exist between the End Customer and its own customer who holds the account to be debited.

      Issuance of internal direct debit orders
      
      Subject to Swan’s approval of its eligibility for this functionality, the End Customer may expressly authorise Swan to receive on its Swan account Payment Transactions initiated by it and originating from other accounts opened with Swan.

      Eligibility for this service is conditional on the debtor signing an internal direct debit mandate. This mandate authorising internal direct debits must be filled in by the holder of the account to be debited and contain the numbers of the accounts to be debited and credited, the identity of the holders of the accounts to be debited and credited, the postal address of the creditor, the date of signature of the mandate and the mandate reference. The End Customer is responsible for the validity of the mandate.

      If it is evident to SWAN that a creditor’s information provided by the End Customer cannot be allocated to a payee, a payment account or a payment service provider of the payee, SWAN shall inform the End Customer thereof without undue delay and, if necessary, return the amount of the credit transfer to the End Customer.

      SWAN credits the creditor End Customer’s Swan account instantly after the execution of the Payment Transaction.

      Finally, the creditor End Customer receives a payment summary. It is up to the End Customer to inform SWAN as soon as possible if the funds are not intended for them.

      When the End Customer receives internal direct debits, the End Customer accepts that SWAN mitigates its financial security risk by preventing the End Customer’s Swan Account balance from falling below a certain amount. This amount is determined at Swan’s discretion according to the risks specific to the End Customer’s operations and its characteristics (sector of activity, value and frequency of operations, etc.). In order to mitigate this risk, if necessary, the End Customer may also agree to provide personal security which will be subject to Swan’s written acceptance.

      SWAN reserves the right to suspend internal direct debit payments to the End Customer’s Swan Account at any time if the End Customer does not have sufficient funds to cover the internal direct debit, the identification details are incorrect or the execution would violate other legal provisions. .SWAN shall notify the End Customer without delay about the suspension and shall, as far as possible, indicate the reasons and the possibilities for correcting errors that have led to the suspension. The indication of the reasons may be waived to the extent that it would violate other legal provisions.

      SWAN is not involved in any civil or commercial dispute that may exist between the End Customer and their debtor, holder of the account to be debited.

      Receipt of Internals direct debit Orders

      When the End Customer has authorised a creditor, who also holds an account with SWAN, to issue a direct debit transaction and SWAN to debit their Swan Account, they give SWAN the power to accept the direct debit mandate on their behalf.

      SWAN submits the internal direct debit payment Order to the debtor End Customer at the latest one (1) Business Day before the scheduled execution date. The value date of the Payment Transaction cannot be earlier than the day on which the amount is debited from the End Customer’s Swan Account.

      The End Customer may reject the internal direct debit without giving any reason at the latest on the scheduled execution date and time.

      After this date, the End Customer has a period of eight (8) weeks to request reimbursement of the internal direct debit if they are a natural person acting for non-professional purposes.

      It is specified that an internal direct debit payment Order may be the subject of a reimbursement request by the End Customer who is a natural person acting for non-professional purposes to SWAN within thirteen (13) months, leading to the automatic reversal of the debit of the End Customer’s Swan Account by SWAN, without prejudice to the results of the search for proof. No requests for partial reimbursement are allowed.

      The period shall commence only if SWAN has informed the End Customer of the internal direct debit payment Order in accordance with information requirements under Article 248 Sec. 7, 10 or Sec. 14 EGBGB; otherwise, the commencement of the period shall be determined by the date of such notification.

      The revocation of an internal direct debit payment Order is made by the End Customer to their creditor, by mail or, where appropriate, according to the procedure laid down by the creditor. Subject to the moment of irrevocability specified above, the effect is that any subsequent Direct Debit Transaction attached to the revoked mandate is deemed unauthorised. The request for revocation or opposition must be made in writing to SWAN’s customer service department at the following address: support@swan.io or from the Swan Interface.

      5.2. Information provided to the End Customer

      5.2.1. Account Statement

      A Payment Transaction Statement summarising all the information relating to each Payment Transaction carried out is accessible to the End Customer on the Swan Interface.

      In the event of a dispute, the production of the Account Statement (or a copy thereof) is deemed to be proof for execution of the Payment Transactions recorded therein, except in the case of error, omission or fraud.

      5.2.2. Annual fee statement
      

      A statement of the fees collected on the Swan Account during the previous calendar year for the Services provided to the End Customer under the ToU is also accessible on the Swan Interface.

      5.2.3. Notice of refusal to execute a Payment Transaction

      In the event that SWAN is unable, for any reason whatsoever, to execute a Payment Transaction, it will inform the End Customer by means of an e-mail or by phone, including on the Swan Interface, no later than one (1) Business Day following receipt of the payment Order by SWAN.

      5.3. Access to the Swan Interface and Use of the Card

      Access to the Swan Interface is reserved for the End Customer and any Authorised User. The End Customer is obligated to access and use the SWAN Interface only in accordance with rules relating to the access and use of the SWAN Interface stated in these ToU. The End Customer must ensure compliance by the Authorised User with the rules relating to the access and use of the Swan Interface stated in these ToU.

      The Personal Strong Authentication Device and the Security Code are secret and strictly confidential. The End Customer undertakes to take the necessary measures to avoid its disclosure and compromise. The provision of the Security Code to the End Customer or Authorised User completes this Personal Strong Authentication Device.

      Necessary measures to avoid disclosure and compromise of the Security Code and the Personal Strong Authentication Device include especially:

      not storing the Security Code unsecured electronically,

       

      • not noting the Security Code on the Card,

      • ensuring that no third parties spectate the Security Code, when entering it,

      • not communicating the Security Code verbally (e.g., by telephone or in person), or

        passing it on in text form outside of the Swan Interface (e.g., by e-mail or messenger service),

      • ensuring that no unauthorised persons can access the End Customers Personal Strong Authentication Device.

      • Furthermore, the Card must be kept with special care to prevent it from being lost or misused. Anyone in possession of the Card has the opportunity to make unauthorised Payment Transactions with the Card. In particular, the Card must not be left unattended.

        The End Customer communicates to SWAN the identity of the Authorised User(s), the mobile phone number for the initialization of the Personal Strong Authentication Device and the access rights and restrictions by Authorised Users.

        The End Customer may decide at any time to designate other Authorised Users or to remove an Authorised User’s access to the Swan Interface, giving Swan two (2) Business Days’ notice.

        5.3.1. Swan Interface data

        The data accessible on the Swan Interface is given to the End Customer for information purposes only.

        5.3.2. Availability of the Swan Interface

        SWAN implements reasonable means to provide access to the Swan Interface 7 days a week.

        However, SWAN may interrupt access to all or part of the Swan Interface for security, technical and/or maintenance reasons, such as e.g. based on a general, customary change in the technical standards, the specifications of the banking industry or the statutory or regulatory requirements. For the same reasons, SWAN may modify the Services provided.

        SWAN reserves the right to take any appropriate action to stop any unlawful conduct or conduct contrary to the agreed use of the Swan Account.

        In particular, Swan reserves the right, at its discretion and without prior notice, to suspend, remove and/or block any access of an End Customer to the Swan interface, including but not limited to: (i) in the event of a suspected malicious or fraudulent attempt to access or authenticate to the Swan Interface, threatening the confidentiality of any information and data relating to the End Customer or Authorised User, (ii) as well as in the event of loss, theft, disclosure or any other Personalised Security Credentials.

       

       

      SWAN shall inform the End Customer by the agreed means of information, stating the relevant reasons, as far as possible before, but at the latest without undue delay after, the blocking. Reasons may not be given if SWAN would violate legal obligations as a result.

      SWAN shall lift a blocking of the access of End Customer to the SWAN interface if the reasons for the blocking no longer apply. It shall inform the End Customer of this without undue delay.

      Article 6: Partners

      The offer proposed by SWAN is likely to have been presented to the End Customer through the Partner. The Partner is likely to collect the elements and supporting documents from the End Customer necessary to open the Swan Account, as defined in Article 4. Subject to the agreement of the End Customer, the Partner sends these elements and supporting documents to SWAN in order to allow it to open a Swan Account.

      It is specified that only SWAN verifies the fulfilment of the conditions of access to the Services and retains sole responsibility for the decision of access to its Services by the End Customer.

      The End Customer agrees that Swan may delegate certain tasks to the Partner, such as the display of the Swan Account or the preparation of Payment Transactions related to the account.

      Payment Orders and Transactions may, where applicable, be prepared, accepted or refused by the Partner in accordance with these ToU.

      In the event of a Payment Transaction dispute, the End Customer will contact the Partner, where applicable.

      Article 7: Unauthorised overdrafts

      Without prejudice to the Payment Transactions being executed, the End Customer’s Swan Account may not be overdrawn.

      if, as a result of a deliberate action by the End Customer, the Swan Account shows a debit balance that has not been settled within two days, Swan reserves the right to charge the End Customer an intervention fee for managing this overdraft. These fees and their amounts are defined in the Appendix 1 to these Terms of Use.

      Article 8: Stop requests

      The End Customer shall inform SWAN without undue delay, as soon as they become aware of the loss, theft, disclosure or misappropriation of their Security Code or any other Personalised Security Credentials, and more generally of any unauthorised access or attempt to access the Swan Interface, for the purpose of blocking the Swan Account or the Card, indicating the reasons why they are requesting this block.

      This block request can be sent at any time to the following address:

      support@swan.io

      The request for opposition (or blocking) is immediately taken into account and a blocking reference is communicated.

      In case of theft or fraudulent use of the Swan Account or misappropriation of the data linked to its use, SWAN reserves the right to request the End Customer to produce a receipt or a copy of the complaint.

      SWAN cannot be held responsible for the consequences of a block request that does not come from the End Customer and/or that does not comply with the provisions of this article. Moreover, a stop request made in bad faith has no effect.

      In general, SWAN reserves the right to block, at any time, the use of the Swan Account for security reasons, without the exercise of this right giving rise to any compensation. This decision is notified to the End Customer by means of an e-mail or via phone.

      In the event where the reasons for the block no longer exist, Swan will lift the block and inform the End Customer as soon as possible.

      Article 9: Notification of unauthorised or incorrectly executed Payment Transactions

      The End Customer must notify SWAN without undue delay upon detection of an unauthorised or incorrectly executed payment transaction.

      Article 10: Liability of the parties

      10.1. Liability of SWAN

      When the End Customer, acting for non-professional purposes, denies having given their consent to carry out a Payment Transaction by means of their Swan Account, it is up to SWAN to restore the balance of the Swan Account or to provide proof that the Payment Transaction has been duly authenticated, recorded and accounted for and that it was not affected by a technical problem. This proof may be provided by e.g. means of electronic equipment recordings or their reproduction on a computer medium for the use of the Personal Strong Authentication Device.

      It is the responsibility of any other End Customer, acting for professional purposes, to prove that the Payment Transaction carried out was not duly authenticated, recorded and accounted for.

      Furthermore, SWAN cannot be held liable towards the End Customer for any damages resulting from unusual and unforeseeable events over which SWAN has no control and whose consequences cannot be avoided despite the exercise of due care, or events that result from a legal obligation.

      If the End Customer disputes the execution of a Payment Transaction beyond the period provided for in Article 11 “Exclusion of liability and objection”, SWAN cannot be held liable.

      10.2. Liability of the End Customer

      he End Customer is responsible for the payment of all amounts due and owing on their Swan Account and Card at any time except if SWAN is liable for reimbursement under Article 10.

      The End Customer, acting for non-professional purposes, assumes the consequences of the use of their Swan Account and their Card as long as they have not made a block request, under the conditions set out in Article 8 “Block requests”, only to a limited extent if the End Customer should have been aware of the theft, loss or other misuse of the Person Strong Authentication Device or without limitation if the End Customer acts with fraudulent intent or the damage occurs due to an intentional or grossly negligent breach of contractual obligations (such as Article 10).

      The End Customer, acting for professional purposes, assumes the consequences of the use of their Swan Account and their Card as long as they have not made a stop request, under the conditions set out in Article 8 “Stop requests”. They also assume these consequences after they have made a block request when their Personal Strong Authentication Device has been used only if the End Customer violates his/her contractual obligations wilfully or negligent.

      The End Customer must ensure that sufficient funds are available in their Swan Account to cover the total amount of the Payment Transactions. If applicable, they must assume the consequences of the refusal to authorise a Payment Transaction.

      The End Customer is liable for the financial consequences of keeping their Personal Strong Authentication Device.

      Article 11: Reimbursement of unauthorised or incorrectly executed Payment Transactions

      11.1. Unauthorised Payment Transaction

      (1) In the event of an unauthorised Payment Transaction, SWAN shall not be entitled to claim reimbursement of its expenses (Aufwendungen) from the End Customer. SWAN shall immediately reimburse the End Customer for the amount of such unauthorised Payment Transaction and, if the amount has been debited from the Account, restore the account balance to the amount in which it would have been, had the unauthorised Payment Transaction not been debited. This is to be done without undue delay and at the latest by the end of the Business Day following the day on which SWAN was notified that the Payment Transaction was unauthorised or otherwise became aware.

      (2) When the End Customer is acting for non-professional purposes, in the event of loss, theft or other misappropriation of the End Customer’s Personal Strong Authentication Device, Security Code, or other Personalised Security Credentials, unauthorised Payment Transactions carried out prior to the notification of the stop request are the responsibility of the End Customer, up to a limit of fifty (50) Euros, irrespective of a personal responsibility of the End Customer.

      (3) However, the End Customer shall not be obligated to compensate for damages under paragraph (2) of this Article, if:

      •  it was not possible for the End Customer to prevent or detect the loss, theft or misappropriation of its Personal Strong Authentication Device, Security Code, or other Personalised Security Credentials, prior to the unauthorised Payment Transaction, or

      • the loss or disclosure of its Personal Strong Authentication Device, Security Code, or other Personalised Security Credentials had been caused by an employee, agent, a branch/office of SWAN, or any other entity to which SWAN’s activities have been outsourced.

        (4) Prior to the notification of the stop request by the End Customer, the End Customer bears all losses caused by unauthorised Payment Transactions resulting from fraudulent conduct on their part or a wilful or grossly negligent breach of one or several of his/her obligations under Article 5.3 and Article 8 of these ToU. This can particularly be the case, but not exclusively, when the End Customer (i) has not taken all reasonable measures to preserve the security of their Personalised Security Credentials as outlined in the article 5.3, or (ii) has not transmitted to SWAN their stop request or notification of an unauthorised Payment Transaction without undue delay or (iii) is manifestly in bad faith. Even after SWAN received a stop request by the End Customer, the End Customer bears all losses caused by unauthorised Payment Transactions resulting from fraudulent conduct on their part.

        (5) Unless the End Customer has acted with fraudulent intent, the End Customer shall not be obligated to compensate for damages under this Article, if

      • SWAN does not require the use of a strong authentication device, or the recipient or its institution do not accept the use of a strong authentication device,

      • the use of a Personal Strong Authentication Device, Security Code, or other Personalised Security Credentials, which caused the damage, occurred after the End Customer had lodged a stop request, or

      •  the End Customer was unable to give the stop request because SWAN had not ensured the possibility of receiving the stop request.

      (6) If the End Customer is obligated to compensate SWAN for damages pursuant to this Article 11, the account balance of the Account will not be restored.

       

       10.2. Incorrectly executed Payment Transaction

      The End Customer, acting for non-professional purposes, is reimbursed, without undue delay, the amount of the incorrectly executed Payment Transaction and, if the amount has been debited from the Account, has his account balance restored to the amount in which it would have been, had the incorrect Payment Transaction not been debited.

      The End Customer may, in addition to paragraph 1, claim reimbursement from SWAN for any fees and interest to the extent that they were invoiced to the End Customer or debited to the End Customer’s Account in connection with the non-execution or defective execution of Payment Transaction.

      In the event of late execution of an authorised Payment Transaction, the End Customer may demand that SWAN requires the payee’s payment service provider to credit the payee’s payment account with the payment amount, as if the Payment Transaction had been duly executed. If SWAN proves that the payment amount was received in due time by the payee’s payment service provider, this obligation shall not apply.

      With regards to the End Customer acting for professional purposes, the incorrectly executed transaction for which SWAN is liable is returned to the End Customer.

       

       

       

      Article 12: Exclusion of and liability and objection

       

      (1) The liability under Article 10.1. or reimbursement under Article 11 is excluded, if the End Customer does not notify the SWAN customer service (support@swan.io) of the loss, theft, misappropriation or other unauthorised use of the Card immediately, i.e., without undue delay (ohne schuldhaftes Zögern) after becoming aware of it, or irrespective of the knowledge obtained, for the End Customer acting for non-professional purposes after expiry of thirteen (13) months from the debiting of the Swan Account or, for the End Customer acting for professional purposes after expiry of eight (8) weeks from the debit date. The period shall commence only if SWAN has informed the End Customer of the debt in accordance with information requirements under Article 248 Sec. 7, 10 or Sec. 14 EGBGB otherwise, the commencement of the period shall be determined by the date of such notification.

      (2) SWAN’s Liability under Article 11.2 is excluded if:

      •  SWAN proves to the End Customer that the transaction amount was received by the payee’s payment service provider on time and in full.

      • The Payment Transaction was executed in accordance with the payee’s incorrect customer identification code provided by the End Customer (see Article 5.1.3). In this case, however, the End Customer may require SWAN to use its best endeavours to recover the payment amount. If it is not possible to recover the amount of the Payment Transaction, SWAN shall be obligated to provide the End Customer, upon written request, with all available information to enable the End Customer to make a claim for reimbursement of the amount of the Payment Transaction against the actual recipient of the Payment Transaction.

        (3) Liability claims are generally excluded if the circumstances giving rise to a claim:

         

        • are based on an unusual and unforeseeable event over which the party invoking this event has no control and the consequences of which could not have been avoided

          by it despite exercising due care

        • SWAN is obligated to act in accordance with the law.

      When the End Customer wishes to credit their Swan Account by direct debit, they expressly mandate SWAN to receive on their Swan Account SEPA Direct Debit Payment Transactions in Euros from a bank account in their name at an institution located in the SEPA zone.

      The End Customer is responsible for the validity of the mandate and the information it contains. The

     

    Article 13: Term and termination

     

    These ToU are concluded for an indefinite period.

    The Cards have a validity period, the expiry date of which is indicated on the Cards. The expiry date of the Cards does not affect the duration of the ToU.

    The ToU may be terminated at any time by the End Customer or by SWAN, without having to justify it. Termination automatically results in the closure of the Swan Account.

    The termination takes effect within one (1) month in case it is requested by the End Customer. In case SWAN terminates the ToU, the termination takes effect within two (2) months after the End Customer has received the notice of termination in text form within the meaning of Sec. 126b BGB and in German language.

    SWAN is entitled to terminate these ToU without notice for a compelling reason (wichtiger Grund). There is a compelling reason if SWAN, taking into account all the circumstances of the specific case and weighing the interests of SWAN and the End Customer, cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period. A compelling reason is deemed to obtain, including without limitation, in the following cases:

    • Death or incapacity of the End Customer;

    • Dissolution of the legal entity End Customer;

    • The End Customer provided SWAN incorrect information regarding their personal details and identity when concluding the Agreement which would not have been 

      concluded with the End Customer if the correct information had been provided or refusal to provide information required by the statutory law or by these ToU, which is necessary for SWAN to perform of the Services in accordance with the statutory law and/or these ToU;

      • Non-compliance with any of the obligations set out in these ToU, which present such serious breach, that SWAN can not be reasonably expected to stay in the contractual obligation for two (2) months of notice period

      • Abnormal operation of the Swan Account presenting high risk of money-laundering, terrorist financing or financing other illegal activities;

      • Serious misconduct or irretrievably compromised situation of the End Customer

      If the compelling reason for a termination without notice comprises the breach of a contractual obligation, a termination is only possible after the unsuccessful expiry of an appropriate grace period or after an unsuccessful warning, unless this is dispensable due to the particularities of the individual case (Sec. 323 para. 2 and para. 3 BGB).
      SWAN reserves the right to carry out the necessary measures in order to terminate the Account, and in particular to carry out a SEPA transfer of the credit balance present on the Swan Account at the date of the closure to a bank account opened with an institution of the European Union or of the European Economic Area whose identification has been communicated by the End Customer.

      Article 14: Tariff conditions
      The financial terms and conditions are appended to these ToU.

      Article 15: General provisions

      14.1. Modification of the ToU
      
      Any legislative or regulatory provisions that would make it necessary to modify all or part of the ToU will be automatically applicable from the date they come into force, without prior notice. The End Customer will be informed.
      SWAN reserves the right to modify the ToU. The End Customer shall be notified of any proposed changes to the ToU in writing two (2) months before they come into force. The absence of a written objection by the End Customer within two (2) months after this communication constitutes acceptance of the modifications to the ToU. The relationship between the Parties will then be governed by the new version of the ToU as of the effective date indicated.
      In the event of refusal by the End Customer, this refusal will give rise, without charge or compensation, to the termination of the Agreement and the reimbursement of the balance of the Account.

      14.2. Professional secrecy

      SWAN is bound by professional secrecy, which may, however, be lifted in the cases provided for by law, in particular with regard to the supervisory authorities, tax administration and the criminal authorities.

      The End Customer may also indicate the third parties to whom they authorise communication of their personal information, in particular the Partner, where applicable.

      The End Customer expressly authorises SWAN to communicate any useful information concerning them, to the extent strictly necessary, to any natural or legal person contributing to the performance of the Services. This includes, for example, SWAN’s external service providers for the performance of certain functions, or other entities of the SWAN group.

      14.3. Fight against money laundering and terrorist financing

      The End Customer acknowledges that SWAN is bound by a duty to identify, update and remain vigilant under the applicable law on the fight against money laundering and terrorist financing.

      In this respect, the End Customer undertakes to provide SWAN with all useful information and, if necessary, supporting documents, to update the SWAN’s knowledge of the End Customer and the nature of the business relationship, on the purpose of the Payment Transactions or transactions carried out, on the origin and the destination of funds, to the extent necessary for SWAN to comply with the statutory anti-money laundering requirements.

      The End Customer is informed that a Payment Transaction carried out within the framework of these ToU may at any time be subject to the exercise of the right of communication of the national financial intelligence unit.

      The End Customer will not be able to hold SWAN liable if SWAN has made declarations to the competent authorities in good faith.

      14.4. Protection of personal data

      The conditions under which SWAN processes the End Customer’s Personal Data are described in the Personal Data Protection Policy accessible by following this link: Personal data protection and cookies policy

      14.5. Derogation for the End Customer acting for professional purposes

      When the End Customer acts for professional purposes within the meaning of Sec. 675e para. 4 BGB, the Parties agree to expressly waive the provisions of the following sections or paragraphs of the BGB: Sec. 675f para. 5 sentence 2, Sec. 675j para. 2, Sec. 675p, Sec. 675v, Sec. 675w, Sec. 675x, Sec. 675y para. 3 and 4, 675z and modify the periods in Sec. 676b para. 2 and 4 BGB from thirteen (13) months down to one (1) month and undertake to comply with the provisions of the Agreement.

      14.6. Specificities applicable to the End Customer acting for non-professional purposes

      In accordance withSec. 312g para. 1 BGB, the End Customer acting for non-professional purposes has a right of withdrawal that can be exercised within a period of fourteen (14) days, starting from the conclusion of these ToU. To comply with the withdrawal period, according to Sec. 355 para. 1 sentence 4 BGB it is sufficient if the End Customer acting for non-professional purposes sends the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

      The ToU may, however, commence before the end of the withdrawal period with the express consent of the End Customer. The End Customer acting for non-professional purposes acknowledges, in this respect, that any commencement of use of the Services shall constitute an express request on their part to commence performance of the Agreement before the expiry of the aforementioned period.

      If the End Customer withdraws from the Agreement, SWAN must return to them all payments that they have received from the End Customer immediately and no later than thirty (30) days from the day on which SWAN received the notification of withdrawal from the Agreement. For this repayment, SWAN will use the same means of payment that the End Customer used for the original transaction, unless expressly agreed otherwise with the End Customer. In no case they will be charged for this reimbursement.

      If the End Customer requested that the Services begin during the withdrawal period and was made aware of this consequence before entering into the Agreement, they must pay SWAN a reasonable amount, which corresponds to the proportion of the Services already provided up to the time at which the End Customer notified SWAN before exercising the right of withdrawal with regard to the contract, compared to the total scope of the service provided for in the Agreement.

      The End Customer acting for non-professional purposes must submit their withdrawal request with a clear notification to the SWAN customer service under the conditions of Article 14.8, informing SWAN of their decision to withdraw from this contract.

      14.8. Customer Service and complaint handling

      The End Customer can obtain all information relating to the execution of the ToU or file a complaint by contacting the SWAN customer service at the following address: support@swan.io.

      Furthermore, the End Customer may at any time complain about alleged violations of the German Payments Services Act (ZAG), Sec. 675c to 676c BGB or Article 248 EGBGB, free of charge, to the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, “BaFin”) via the online complaint form: https://www.bafin.buergerservice-bund.de/Formular/BankenFormular or by letter or fax at the following address about violations, by SWAN:

      Federal Financial Supervisory Authority Graurheindorfer Strasse 108 53117 Bonn
      or
      Marie-Curie-Str. 24 -28
      60439 Frankfurt am Main
      Fax: + 49 (0)228 4108-1550

      In case of extrajudicial settlement of disputes arising from the application of Sec. 675c to 676c BGB or Art. 248 EGBGB, the German Federal Bank is responsible. In this context, the End Customer acting for non-professional purposes has the possibility to submit an application for the implementation of a dispute resolution procedure in text form.

      The application form: https://www.bundesbank.de/resource/blob/613612/145c6b080
      db58353c511c6444fd2f6a 5/mL/schlichtungsantrag-data.pdf of the Deutsche Bundesbank can also be used for this purpose. The application must be sent to the office of the conciliation body at the following address:

      Conciliation Board at the Deutsche Bundesbank PO Box 10 06 02
      60006 Frankfurt am Main Wilhelm-Epstein-Strasse 14
      60431 Frankfurt am Main
      E-mail: schlichtung@bundesbank.de

      In order to settle the dispute, SWAN will participate in a dispute resolution procedure before this body. Details of the procedure are set out in the Financial Conciliation Service Ordinance (Finanzstellenschlichtungsverordnung), which can be obtained from the Deutsche Bundesbank. Further details are available on the Deutsche Bundesbank’s website https://www.bundesbank.de/de/service/schlichtungsstelle.

      The right to appeal to a court of law remains unaffected.

      The European Commission has set up a European online dispute resolution platform (ODR platform) at http://ec.europa.eu/consumers/odr/. A consumer can use the ODR platform for

      the out-of-court settlement of a dispute arising from online contracts with a company established in the EU.

      The End Customer, acting for non-professional purposes, who wishes to contest a Payment Transaction not authorised by them or incorrectly executed must contact SWAN by registered letter with acknowledgement of receipt as soon as possible after becoming aware of the anomaly and at the latest within thirteen (13) months after the debit date. The period shall commence only if SWAN has informed the End Customer of the information relating to the payment transaction in accordance with Article 248 Sec. 7, 10 or Sec. 14 EGBGB; otherwise, the commencement of the period shall be determined by the date of such information.

      The End Customer and SWAN retain the right to refer the matter to the competent court in the absence of prior recourse to the mediator or following a mediation procedure.

      14.9. Applicable law and place of jurisdiction for merchant and public End Customers

      The pre-contractual relations and the Agreement are subject to German law and, subject to the applicable legal provisions, to the exclusive jurisdiction of the competent courts of Berlin if the End Customer is a merchant, legal person under public law, or a special asset (Sondervermögen) under investment services regulations.

      ANNEX 1 / APPENDIX 1:
      SWAN ACCOUNT FINANCIAL CONDITIONS

      • Funding an account by credit card: 0.7% of the amount deposited + €0.12 incl. VAT

      • Cash withdrawals at ATMs in the SEPA area: €1, incl. VAT

      • Cash withdrawals at ATMs outside the SEPA area: 2% of the amount withdrawn

      • Payment for goods and services in shops or remotely outside the SEPA area: 2% of the amount paid

      • Call to “Customer Service”: cost of a local call, depending on the operator

      • Improper use of the account (attempting or performing acts in violation of the law and/or this Account Agreement): €180, incl. VAT

      • Processing of judicial or administrative seizures, notice to third party holders: An amount equal to 10% of the amount of the seizure, up to a maximum of €20 incl. VAT per file

      • Fee for direct debit rejections due to an insufficient balance: €10 incl. VAT per rejected direct debit, up to the amount of the rejected direct debit

      • Drafting a circulation letter for a legal entity holder: €54, incl. VAT

      • Intervention fee for managing unauthorised overdrafts: €8 incl. VAT per transaction, up to a maximum of €80 incl. VAT per month.

        On the date of signature of this Agreement, the SEPA area includes: all European Union countries, the United Kingdom, Iceland, Liechtenstein, Norway and Switzerland.

      ANNEX 1: TERMS FOR SWAN (CARD & ACCOUNT)
      APPENDIX 2: CAPITAL DEPOSIT – TERMS OF SERVICE

      Article 1 – Preamble

      These Terms of Service concerning the capital deposit are only applicable when this offer is made to the End Customer by the Partner. The capital deposit offer can only be made to the End Customer if it is a company in the process of formation domiciled in France.

      The Terms of Service for the share capital deposit are concluded between

      SWAN, a simplified joint-stock company (société par actions simplifiée) with a capital of €22,840.20, having its registered office at 95 avenue du président Wilson, 93100, Montreuil – RCS 853 827 103.

      SWAN is an electronic money institution authorised to provide payment services, approved under number (CIB) 17328 by the French Prudential Supervisory Authority (Autorité de contrôle prudentiel et de résolution (ACPR)), 4, place de Budapest CS92459 – 75436 Paris Cedex 09 and subject to the supervision of this authority.

      Hereinafter “SWAN” or the “Institution”, on the one hand, And

      The End Customer, a company in the process of formation, represented by its legal representative, Hereinafter referred to as the “End Customer”, on the other hand.

      Together referred to as the “Parties”.

      The End Customer accepts without reservation the terms and conditions of service brought to its attention when it subscribes to the Services.

      The End Customer may request a copy of these terms of service from SWAN at any time.

      Article 2 – Description of the capital deposit Services

      SWAN assists the End Customer in its procedures for depositing share capital. This procedure consists in

      inviting subscribers to the share capital of the company being formed to pay into a dedicated Swan Account the amount of the shares subscribed by each of the company’s partners (the “contributions”).

      When all the partners have paid the amount of their contribution (the “payment of the shares”) in full and have provided all the documents required by SWAN, the funds resulting from the payment of the shares are transferred to the account of the Swan’s notary partner opened in the books of the Caisse des dépôts et consignations. This transfer is carried out by Swan as agent of the company being formed.

      The Notary partner will then issue a certificate of capital deposit which Swan will transmit to the End

      Customer. This certificate will be necessary for the End Customer to continue with the registration of the company.

      With the certificate of capital deposit, it is up to the End Customer to take the necessary steps at the registry of the competent commercial court to register the company being formed.

      Once the company has been registered, it is up to the End Customer to send Swan the relevant supporting documents, in particular the extract of the certification of incorporation (Kbis). Swan will forward the documents to the Notary and request him to transfer the amount of the paid-up share capital to a Swan account opened in the name of the End Customer.

      The End Customer then has access to their Swan Account and can carry out the operations provided for in the Terms of Use to which these Terms of Service are attached.

      Swan reserves the right not to provide these Services to the End Customer in the event of suspected fraud or other illegal activity.

      Article 3 – Transmission of documents by the End Customer

      In order to obtain the certificate of capital deposit, it is up to the End Customer to provide a certain amount of information and documents on the company being formed and on the shareholders. This may include the following documents:

      Proof of the company’s business address Signed draft articles of association

      Proof of address of the Legal Representative less than three months old Official identity document of the Legal Representative

      Proof of address of each partner less than three months old Official identity document of each partner

      Where the partner is a legal person, this may include the following documents: Proof of registration of the legal person in an official register

      Official identity document of the legal representative of the legal person

      Swan reserves the right to request any additional documentation from the End Customer in order to comply with its Know Your Customer and anti-fraud regulatory obligations.

      Article 4 – Tariff conditions

      The capital deposit services described in this appendix and provided by Swan are free of charge to the End Customer.

       

      ANNEX 1: TERMS FOR SWAN (CARD & ACCOUNT)
      APPENDIX 2: Swan conditions of partnership with
      Bismarck Select

      1. Preamble

      The Conditions of Partnership with Bismarck Select (hereinafter the “CPs”) define the intervention of [Missing company name] (hereinafter the “Partner”) in the operation of the Swan Account and the main payment services offered to the End Customer (hereinafter the “Account”), and opened by the End Customer, with Swan, an electronic money institution authorised to provide payment services (hereinafter “Swan or the Institution”).

      Swan, a simplified joint-stock company (SAS) with a capital of € 22 840,20, whose registered office is at 95 avenue du président Wilson, 93100, Montreuil – registered with the Trade and Companies Register under number 853 827 103, is an electronic money institution authorised to provide payment services, approved under number 17328 by the French Prudential Supervisory Authority (Autorité de contrôle prudentiel – ACPR) 4, place de Budapest CS92459 – 75436 Paris Cedex 09 and subject to the supervision of this authority. The list of electronic money institutions is available from the ACPR and on the website https://acpr.banque- france.fr.

      Bismarck Select brand under which the Partner, [Missing company name], whose registered office is at [Missing company address] – [Missing company registration number], markets its offer to the End Customer.

      2. Definitions

      The words and expressions used in this document will have the meaning given to them in the General Terms of Use.

      3. Purpose

      These CPs apply in addition to the General Terms of Use and specify the conditions under which the Partner will assist the End Customer and/or Swan in the preparation and execution of transactions on their Swan Account.

      The End Customer is informed of the conclusion of a partnership agreement between Swan and the Partner. In this context, the End Customer accepts and acknowledges that the Partner may be required to carry out the following operations:

      > Transmission of information to Swan for the opening of the Swan Account;
      > Preparation of Card orders;
      > Preparation of transfer and direct debit orders;
      > Preparation of internal direct debits for which the creditor is the End  Customer and for which the debtors are other end customers of Swan;
      Invalidation of transfers, direct debits or Card payments; Preparation of loading of the Swan Account by payment card;
      > Preparation of the reimbursement of the balance of the Electronic Money Account;
      Transmission of requests to contest payment transactions.

      4. Opening the account and the electronic money account

      The Partner, who does not have the status of Intermediary in Banking Transactions and Payment Services (IOBSP), sends Swan the contact details of the End Customer who wishes to be put in contact with Swan. The End Customer will then have a unique relationship with Swan who will open the Swan Account.

      If the Partner has an IOBSP or commercial agent mandate, the End Customer may transmit to Swan, from the Partner’s interface, the documents necessary for the opening of the Swan Account. The End Customer guarantees the absolute accuracy and completeness of these elements.

      When the Partner does not have the status of IOBSP, the End Customer must transmit from the Swan interface the documents necessary to finalise the opening of the Swan Account.

      5. Operation of the Swan Account and services offered by the Partner

      a. Ordering the Card

      The End Customer may ask the Partner to prepare a Card order. This request is transmitted to Swan who confirms it to the End Customer from the Swan Interface.

      If a physical Card is ordered, Swan will inform the Partner of the dispatch of the physical Card and will send it directly to the End Customer.

      b. Card payments or withdrawals

      When an End Customer makes a payment or cash withdrawal using a Card, the transaction is first authorised by Swan. Before final acceptance of the transaction,

      a notification may be sent to the Partner which may invalidate it on the basis of the conditions of use communicated by it to the End Customer.

      c. Issue of SEPA transfers

      The transfer request of the End Customer can be made from the Partner interface. The latter prepares the transfer and transmits it to Swan.

      The verification and then confirmation of the transfer is carried out by the End Customer with Swan via the Swan Interface.

      When a transfer order is authorised by Swan, a notification may be sent to the Partner before the transaction is carried out. The Partner may then invalidate it on the basis of the conditions of use communicated by it to the End Customer.

      As soon as the transfer order has been executed, the Partner is informed by Swan.

      d. SEPA direct debits

      When a direct debit order is authorised by Swan, a notification may be sent to the Partner before the transaction is carried out. The Partner may then invalidate it on the basis of the conditions of use communicated by it to the End Customer.

      Upon receipt of the direct debit, the Partner is informed by Swan and may send a notification to the End Customer.

      e. Loading the Swan Account

      When the End Customer wishes to load their Swan Account by payment card, the Partner may prepare the card payment order with Swan by indicating to Swan the amount to be loaded.

      f. Transactions to and from the Electronic Money Account

      An End Customer wishing to send or receive electronic money transfers from and to an electronic money account opened with Swan may make a request to the Partner who will then be able to prepare the internal transfer and forward this request to Swan.

      g. Reimbursement of the balance of the Electronic Money Account

      When the End Customer wishes to obtain a reimbursement of all or part of the available balance on their Electronic Money Account, they can make a request to the Partner who will prepare and transmit this request to Swan.

      h. Internal Direct Debit Mandate

      By signing the CPs, the End Customer accepts that the Partner gives the instruction to SWAN to directly debit. The End Customer authorises SWAN to debit their account according to the Partner’s instructions.

      The amount of the payment transactions executed in this framework will be communicated to the Final Customer by SWAN or by the Partner in the form of a payment schedule.

      The conditions of execution of internal direct debit operations, including the possibility for the end client to be reimbursed, are described in the general terms of use of the Swan Account.

      6. Disputes

      To dispute a payment transaction, the End Customer can contact the Partner.

      The Partner will then forward this dispute to Swan who will process it in accordance with the General Terms Of Use.

      Swan will then inform the Partner of its decision regarding the End Customer’s dispute and, if applicable, will reimburse the disputed amount.

      7. Term and termination

      The CPs are concluded for an indefinite period.

      The CPs can be terminated at any time by the End Customer or by Swan without having to justify it. In this case, the End Customer’s Swan Account will be available directly at the following address [https://banking.swan.io]{.underline}, according to the General Terms of Use of the Swan Account.

      8. General provisions

      a. Modification of the CPs

      Any legislative or regulatory measure resulting in a modification of all or part of the products and services will be automatically applicable as of its entry into force.

      Swan reserves the right to modify the CPs. The new conditions are brought to the attention of the End Customer in writing one (1) month before they come into force. The absence of a written objection by the End Customer within one (1) month after this communication constitutes acceptance of the modifications to the CPs. In the event of disagreement, the End Customer may terminate the CPs at no cost and in the manner provided for in the article “Term and termination”. Failing termination, the modification will apply.

      b. Professional secrecy

      Swan is bound by professional secrecy, which may, however, be lifted in the cases provided for by law, in particular with regard to the supervisory authorities, tax administration and the criminal authorities.

      The End Customer expressly authorises Swan to communicate information concerning them to the Partner.

      The End Customer expressly authorises Swan to communicate any useful information concerning them to any natural or legal person contributing to the performance of the services provided for by the Agreement or which may be subsequently attached thereto, in particular to service providers for the execution of subcontracted work and/or to companies of the Swan group for their use for the purpose of studying and managing files, in particular for the granting and execution of services and, where applicable, collection.

      c. Applicable law

      The pre-contractual relations and the Agreement are subject to French law and, subject to the applicable legal provisions, to the exclusive jurisdiction of the courts within the jurisdiction of the Paris Court of Appeal.