GENERAL TERMS AND CONDITIONS
A. GENERAL CONDITIONS
- These terms and conditions (hereinafter referred to as the “Terms and Conditions”) of Foxstone SA, Rue des Bains 35, 1205 Geneva, Switzerland (hereinafter referred to as “Foxstone”) govern the conditions of use and the rights and obligations of users (hereinafter referred as the “User(s)”) of the website foxstone.ch and consequently all the subdomains of foxstone.ch (hereinafter referred to as the “Website”). A Sponsor – as such term is later defined – is also considered as a User.
- If the User does not agree to be bound by the Terms and Conditions set forth below, it shall refrain from accessing the Website or any of its pages.
- The Website is a platform allowing property owners and real estate sponsors to enter into contact with potential acquirers or lenders interested by such properties and projects.
- By accessing and browsing the Website and its pages, the User acknowledges that it has read, understood and agreed to be bound by the Terms and Conditions and other legal provisions relating to the Website and its constituent elements in all respects. Any special agreements with respect to individual services or products of Foxstone shall be complementary to these Terms and Conditions. In the event of any conflict, the provisions contained in any such special agreements shall prevail.
- Access to the Website or to its services may be restricted any time, including when necessary for security reasons or for implementation of technical measures. No claim may derive from Users for such restrictions.
C. USER ACCOUNT
- The use of the Website is subject to the prior registration of a user account (hereinafter referred to as “User Account”) and to the agreement to the present Terms and Conditions. Each User may only register for one account, which is personal and not transferable.
- Registration is open to (i) natural persons of minimum 18 years old with capacity to act and (ii) legal entities. If an account is registered by a legal entity, the person creating the account guarantees that it has the power to represent the legal entity. Any natural or legal person who grants loans or credits professionally – as such term is defined under the Swiss Consumer Act of March 23, 2001 – are prohibited from using the Website, unless expressly accepted in writing by Foxstone. Specific additional requirements and restrictions – including in terms of domicile – may apply for specific projects, including due to the Swiss federal act on acquisition of real estate by persons abroad dated December 16, 1983 or other reasons.
- Access information of each User Account (User ID and password) is strictly confidential and shall be kept in secret under the sole liability of the user. Foxstone may not be held liable in case of undue access to the User Account by a third party. The User shall immediately inform Foxstone when a third party has unduly accessed its User Account or email, or if the User Account’s or email’s security has been compromised in any other way.
- The User guarantees that any information provided by the User to the Website is complete, accurate and truthful. The User is responsible of keeping this information up to date and to notify Foxstone should a change occur. Any information or document made available to a User, including regarding a specific real estate, shall be kept strictly confidential and not communicated to any third party except to the financial, legal or tax advisor of the User. In case of a communication of information or document to his financial, legal or tax advisor, the User undertakes to inform the said advisor about this confidentiality clause and to impose him to strictly comply with it. The User is liable in case of a breach of this confidentiality clause.
- Once the account is created, the User must pass the accreditation process, in accordance with the requirements of Foxstone’s partners, in order to access the offerings. Accreditation could be rejected without indication of grounds. Consequently, the User will be blocked and will not have access to the Website.
- After the registration, a sponsor may submit a real estate project for which it wishes to fundraise on the Website by providing a complete and detailed description of the real estate project (hereinafter referred as the “Project”). When submitting a Project, the sponsor (hereinafter referred to as the “Sponsor”) can choose between two business models: (i) direct acquisition of the real estate or (ii) crowdlending.
- Foxstone is not the Sponsor. The Sponsor is a third party that submitted a Project to Foxstone. Once the Project is accepted by Foxstone and activated, a fundraising campaign is launched on the Website (hereinafter referred to as the “Campaign”). A Project may be rejected without indication of grounds.
- During the Campaign, the Sponsor is prohibited to raise such funds through other intermediaries, in particular through any other crowdfunding or other platforms. It may however use its own equity (fonds propres) and/or financing from banks or insurance companies to complete the financing of the Project.
- Sponsor is prohibited to sell or dispose in any way the Project during the Campaign. Details are specified, as the case may be, in a separate agreement.
- Sponsors are charged with a fee due to Foxstone as specified in a specific agreement between the Sponsor and Foxstone.
- A User may browse the approved Projects on the Website for a possible subscription and may request further information on the Website.
- When proposing to subscribe to a Project, the User confirms having reviewed and understood the Project’s fundraising modalities and that it is aware of the risks related to such subscription. The User confirms having read and understood the risk factors mentioned in Annex 1 below and being aware that the list of risk factors is not exhaustive. In case Foxstone considers that the User may be eligible for a final subscription according to the whole proprietary business architecture, Foxstone will provide a subscription form and other documents in relation with the Project (the “Documents”) to the User.
- If the User’s final subscription is approved by Foxstone and its partners relevant to the Project (such as the depository bank and the Financing bank), it is concluded between the User and the Sponsor. Foxstone is not a party to this contractual relationship. The User shall assume solely all risks in relation to its subscription. Foxstone provides no warranties regarding the success of the Campaign, nor regarding the allocation made by the Sponsor of the proposed subscription made by the User.
- In case of an offline payment, the User must wire in time the contracted amount on the bank account provided according to the terms as agreed with the Sponsor. If the User fails to wire the amount within the defined period he will be liable to pay an indemnity representing [[ …] % of the sum due / CHF […]][to be completed] to Foxstone.
- In case of an electronic wallet, the User must charge his wallet before proceeding with an investment. If the account balance covers the committed amount, it will be automatically drawn from the electronic wallet. If the account balance does not cover the committed amount, the User will not be eligible for such investment.
- Foxstone is free to refuse a proposed subscription without indication of grounds.
- The User may only invest in Projects (i) for its own private investment or (ii) on behalf of a third party for its private investment based on a power of attorney or (iii) on behalf of a legal person for the purpose of the investment of the legal person concerned based on a power of attorney. In any circumstances, the name of the ultimate beneficial owner and/or the controlling person (in case of a legal entity) within the meaning of article 2a of the Swiss money laundering dated January 1, 2016 shall be disclosed in writing. The User is not authorized to subscribe to a Project for the purpose of resale to a third party, nor subscribe for another User, nor for the intermediation to third parties without the prior written consent of Foxstone.
- The User may not, without the written consent of Foxstone, acquire real estate directly or indirectly from the Sponsor and to procure any property directly or indirectly to third parties within three years after the registration on the Website. A company held directly or indirectly by a Sponsor by at least 50% of the property (or share capital in case of a legal entity), is considered as the Sponsor.
- If the minimal amount as mentioned in the Project has not been reached within the Campaign period, the subscribed amount by the User to the Project is redeemed to the User, after the deduction of the following fees: notary fees (if any), (to be completed).
- Foxstone may refuse, suspend or cancel a Project, without prior notice and without indication of grounds.
- Once the Project is approved by Foxstone, the Project is published on the Website and Users may subscribe. The Project is published exclusively with the information provided by the Sponsor and third parties. Foxstone does not guarantee the completeness or the accuracy of the information provided by the Sponsor or any other data provider involved.
- The User has to indicate the amount at which it is willing to subscribe, which has to be at least the minimum amount mentioned on the Website in relation to the Project. In the crowdlending model, the number of subscriber is expressly limited to 20, unless in presence of a bonds’ issuance, unless otherwise specified.
- Subscription made by the User is made at the risk of the User. By making a subscription, the User declares that it is aware that it is participating to a fundraising of a Project, which carries certain risks. Foxstone does not perform any verification of the suitability or appropriateness of the subscription made by the User with the experience, knowledge, financial situation and investment objectives of the User.
- The subscription made by a User constitutes an undertaking to enter into a relationship with the Sponsor, provided that the other conditions precedent (including success of the Campaign) are met and the User’s subscription is accepted.
- A Campaign runs until the given end of the raising period chosen by Foxstone.
- Foxstone gives no guarantee on the viability or the success of a Campaign and/or the Project.
- Upon successful completion of the Campaign, the Sponsor and the User enter into a relationship according to the business model chosen by the Sponsor for its Project (direct investment or crowdlending). This relationship is managed between the Sponsor and the User directly or, if specially mentioned, by Foxstone.
- Upon successful completion of the Campaign, the User receives the payment information on the Website and all the necessary information regarding its subscription. The Sponsor receives the relevant information directly on the Website or by email. No amount will be transiting on Foxstone’s bank account. Foxstone shall not receive any deposit, nor shall emit any shares or any securities. Foxstone shall not act as a financial intermediary.
- Foxstone’s implication with the Project ends with the completion of the Campaign and the transfer of information to the Sponsor and to the User respectively. Foxstone is not involved in the further relationship between the Sponsor and the User and will not do any follow-up with either party. Foxstone shall not be held liable of any loss or damages resulting from the relationship between the Sponsor and the User. The Sponsor can become insolvent, making it incapable of payment of the nominal (i.e. amount invested) and/or the interests. The investment is not guaranteed by any entity or collateral.
- Users are charged with a fee due to Foxstone as specified in the Documents.
- In no event Foxstone, its directors, officers, employees and auxiliary persons shall be liable, including in the case of negligence, for any damages, losses or liabilities including without limitation, direct or indirect, special, incidental, consequential damages, losses or liabilities, in connection with the use of the Website, account hacking, User identity spoofing or the User’s reliance on or use or inability to use the information and services on the Website, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if the User advises Foxstone of the possibility of such damages, losses or expenses. Furthermore, Foxstone disclaims all liability for any tampering with the User’s computer system by unauthorized parties.
- Foxstone does not warrant the accuracy, adequacy, completeness or timeliness of the information and services or the error-free use of the Website.
- Foxstone does not represent or warrant that the Website will be available or that it will meet the User’s requirements, that access will be uninterrupted, that there will be no delays, failures, errors or omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted or that no damage will occur to the User’s computer system. The User have sole responsibility for adequate protection and back up of data and/or equipment and for undertaking reasonable and appropriate precautions to scan for computer viruses or other destructive properties.
H. NO ADVICE, NO RECOMMANDATION
- Neither information nor any opinion expressed in this Website constitutes a solicitation or recommendation to enter into any transactions, or to conclude any legal act of any kind whatsoever.
- The information contained on the Website can not be interpreted as creating a legal relationship, in particular a mandate, between Foxstone and the User, or as a guarantee of a return on investment.
- Website information and presentations are provided on a strictly confidential basis for discussion purposes only and is not an offer to sell or a solicitation to buy.
- The content of information, graphics, reports and all the data contained on the Website is supplied for information only and is subject to change. Certain information on the Website has been obtained from sources outside of Foxstone. While such information is believed to be reliable for the purposes used herein, no representations are made as to the accuracy or completeness thereof and Foxstone takes no responsibility for such information.
- Foxstone is not responsible for the User’s investment decisions. Any investment is speculative in nature and can involve the risk of loss of one’s entire investment. Nothing contained on the Website should be construed as an investment recommendation. User should carefully evaluate his own financial position before making any investments. User should independently investigate the proposed Projects before considering potential investment, and should consult with independent qualified sources of investment advice and other legal and tax professionals prior considering a potential investment.
- Foxstone does not provide financial, tax or legal advice to the User. The User shall remain liable for its tax obligations (or any other legal obligations) associated with the investment it makes. Foxstone shall not accept any liability in this respect. Foxstone hereby recommends that the User consults a legal, financial and/or tax advisor within its tax jurisdiction.
- The User shall proceed with its own verifications on the Project and associated risks and request advice from experts selected by him (such as notary, real estate expert, financial or tax advisor) at its own costs and liability.
I. LINKED SITES
- Links on the Website may be directed to third party websites, which are not owned nor controlled by Foxstone. Access to these third party website is at the User’s own risk and sole responsibility.
J. INTELLECTUAL PROPERTY
- All information available on the Website such as images, information about the deals, contracts etc. is protected by copyright and is the property of Foxstone, without prejudice to the copyright of third parties. No information contained on this Website shall be construed as granting any license or right to use any image, trademark, service mark, or logo of Foxstone. In no event shall the User acquire title to any software or material by downloading it, or otherwise copying it, from the Website. The User may save or print out a hard copy of individual pages and/or sections of the Website, provided that the User do not remove any copyright or other proprietary notices. With any saving or otherwise copying from the Website the Terms and Conditions for use shall be deemed to have been accepted. All property rights shall remain with Foxstone who is the sole owner.
- Foxstone reserves its rights with respect to copyright and ownership of all information available on the Website and shall enforce such rights to the full extent permitted by applicable law.
K. MEANS OF COMMUNICATION
- All communication between the User and Foxstone are made by email to the email address associated with the User Account.
- The User’s attention is hereby drawn to the considerable risks caused by using emails (hacking, viruses, message modification or transmission problems etc.) and the confidentiality problems these may bring about. The User alone shall bear the risks inherent to the use of email. Foxstone may not be held liable for any loss caused as a result thereof. Moreover, Foxstone shall not be liable for any damage resulting from the use of emails or any other means of transmission, particularly in the case of loss, delay or alteration.
L. NON SOLLICITATION
- The User undertakes not to, directly or indirectly, contact the Sponsor or related companies in relation to the Project for a period of two years after having access to the information about the Project. In case of violation of this non-competition clause, the User shall be liable to pay damages to Foxstone.
M. CHANGES TO THE TERMS AND CONDITIONS
- Foxstone reserves the right to amend the Terms and Conditions at any time.
- The User will be notified by email to the email address associated with the User Account of any amendment made to the Terms and Conditions.
- The most current version, published on the Website, applies between the User and Foxstone.
N. PLACE OF JURISDICTION AND APPLICABLE LAW
- Use of the Website shall be subject to Swiss law, which shall exclusively govern the interpretation, application, and effect of all the conditions of use set out above. The courts of Geneva, Switzerland shall have exclusive jurisdiction over all claims or disputes arising out of or in connection with the Site and its use.
Updated on January 2018.