Terms of Service

1. Parties, scope and acceptance

1.1 These Terms of Service (“Terms”) govern every use of the ScaleXB platform, consisting of the application at plus.scalexb.com, the investor portal and embeddable investment widget, the public API, documentation, templates and all related services (together the “Platform”), provided by Guiding Innovators GmbH: Salzgries 21/16, 1010 Vienna, Austria, registered with the Commercial Court of Vienna under FN 536594 i (“ScaleXB”, “we”, “us”).

1.2 The Platform is offered exclusively to entrepreneurs within the meaning of § 1 of the Austrian Consumer Protection Act (KSchG), i.e. companies, funds, syndicates and other organisations acting in the course of their business (“Customer”, “you”). By registering you represent that you act for a Customer, that you are authorised to bind it, and that the Customer is not a consumer. If this representation is untrue, you are personally liable for all obligations of the Customer under the Agreement.

1.3 You accept these Terms by ticking the acceptance box during registration, by accepting an updated version in the Platform, by signing an order form or offer that refers to them, or by accessing or using the Platform in any way. We record the version you accepted and the time of acceptance; our records are conclusive evidence of acceptance.

1.4 These Terms, our Privacy Policy, the data processing agreement in section 12, the pricing published at scalexb.com/pricing and any signed order form or offer (“Order Form”) together form the entire agreement (the “Agreement”) and replace all prior discussions, proposals and representations. In case of conflict, a signed Order Form prevails over these Terms. The Customer’s own general terms and conditions do not apply, even if we do not expressly object to them or perform without objection.

1.5 We may decline to open an account, or close an account, at our discretion and without giving reasons.

2. What ScaleXB is and is not

2.1 ScaleXB is a software-as-a-service platform that Customers use to structure, run and administer private capital raises and the ongoing life of the resulting instruments. Depending on the subscription tier and activated add-ons, the Platform may provide: offering setup for tokenised equity (profit participation rights), bonds and convertibles; digital investor onboarding with identity verification (KYC/AML) and sanctions screening through integrated third-party providers; subscription agreements and e-signature; order management and payment reconciliation; a live investor register and cap table; token deployment and administration on supported blockchain networks; distributions, payouts and tax reporting; investor messaging, votes and consents; an over-the-counter transfer desk; CRM, marketing, referral, affiliate and giveaway tools; analytics; automations and an AI assistant; a legal hub with document templates and a marketplace of independent law firms; and a white-label investor app. The description of features on our website is non-binding; only the functionality actually made available in the Platform at any given time is owed.

2.2 ScaleXB is a technology provider only. We are not a bank, investment firm, crowdfunding service provider, crypto-asset service provider, investment adviser, broker, custodian, paying agent, transfer agent, registrar or securities issuer, and we are not supervised by the Austrian Financial Market Authority (FMA) or any other financial regulator. We do not hold Customer or Investor funds, do not hold private keys to Investor wallets, do not execute orders on anyone’s behalf, do not give investment, legal, tax or regulatory advice, do not review, approve, audit or endorse any offering and do not promote or place any offering. Nothing on the Platform is a recommendation to invest or an assessment of the legality of an offering.

2.3 You are the issuer and bear the entire regulatory risk. Every offering is made by the Customer (or an entity the Customer controls) in its own name, at its own risk and on its own responsibility. You alone decide whether, how, to whom, in which countries and under which exemption an instrument is offered, and you are solely responsible for compliance with the Austrian Capital Markets Act (KMG 2019), the EU Prospectus Regulation, the Alternative Financing Act (AltFG), the Financial Markets Anti-Money Laundering Act (FM-GwG), the Markets in Crypto-Assets Regulation (MiCA) where applicable, securities, tax, company, marketing, consumer, sanctions and data protection law, and the laws of every country in which you offer instruments or accept Investors. Where a prospectus, information sheet, licence, registration, notification or legal opinion is required, obtaining it is exclusively your responsibility. The Platform’s configuration options, investor limits, checklists and jurisdiction packs are technical conveniences; they do not represent that a configuration is lawful.

2.4 Investors are your customers, not ours. Investors use the Investor Portal under your terms and your privacy notice. No contract is formed between ScaleXB and an Investor by their use of the Investor Portal, and Investors are not third-party beneficiaries of the Agreement, except where a third-party service such as a wallet or on-ramp provider requires Investors to accept that provider’s own terms. You are responsible for all claims of Investors relating to your offerings.

2.5 Documents, templates, checklists, jurisdiction packs, knowledge-base articles and answers from the AI assistant or our staff are general information and starting points only. They are provided as is, may be outdated or unsuitable for your case, are not legal, tax or investment advice and do not replace advice from your own qualified advisors, which you must obtain before every offering. Law firms and other providers listed in the Legal Hub marketplace are independent; any engagement is a contract exclusively between you and that provider, and ScaleXB is not party to it, does not select or supervise them and does not vouch for their work.

3. Accounts, users and security

3.1 You must provide accurate, complete and current registration and billing information and keep it updated. We may verify the identity of the Customer and its representatives at any time and may refuse, suspend or close accounts that fail verification.

3.2 You may invite team members, consultants and partners to your tenant and assign them roles. Every person who accesses the Platform through your tenant is a “User”. You are responsible for all acts and omissions of your Users as if they were your own, for all fees incurred through your tenant, and for removing access when it is no longer needed. Anything done through your tenant is deemed done by you.

3.3 Credentials, one-time codes, API keys, webhook secrets and two-factor secrets are confidential. You must protect them with reasonable measures, must not share personal logins, and must notify us without undue delay at security@scalexb.com if you suspect unauthorised access. We are not liable for any loss arising from unauthorised use of your tenant, credentials or API keys, whether or not you were at fault, until we have received your notice and had a reasonable time to act on it.

3.4 Where you connect third-party integrations (identity verification, custody, payments, e-signature, email, storage, AI providers) using your own credentials, you are responsible for those accounts, for keeping the credentials valid, for the conduct of those providers and for the fees they charge you.

3.5 You are responsible for the equipment, software, network connectivity and security of your own systems used to access the Platform.

4. Subscription tiers, trial, add-ons and beta features

4.1 The Platform is offered in subscription tiers (currently Start and Growth) whose scope, investor limits and support levels are described on the pricing page or in your Order Form. Customers who run several offerings in parallel, or who require their own brand, their own securities register or their own custody, are served on FLORIS³ under a separate agreement and a separate price list. We may add, rename, restructure or discontinue tiers, features and limits at any time.

4.2 Free trial. New Customers may receive a free trial of limited duration at our discretion. The trial is provided as is, without any support or availability commitment, for evaluation only. We may shorten, suspend or end a trial and delete a trial tenant and its data at any time without notice and without liability. The trial ends automatically at the end of the trial period; it does not convert into a paid subscription unless you select a tier and provide a payment method. Trial tenants that are not converted are deleted 90 days after the trial ends, or earlier at our discretion. During a trial you may not run a live offering to real Investors unless we have expressly enabled it in writing.

4.3 Add-ons such as native identity verification, native e-signature, register keeping, additional offerings or the white-label investor app can be activated in the Platform or by Order Form. Add-ons are billed according to the price shown at activation (setup fee, per-unit fee, monthly fee, monthly minimum, or a percentage with a cap, as applicable). Activation in the Platform by any User is binding on the Customer.

4.4 You may upgrade at any time; the price difference is charged pro rata for the remainder of the current billing period. Downgrades take effect at the end of the current billing period and are only possible if your usage fits the lower tier.

4.5 Beta features. Features marked as beta, preview, demo, early access or experimental are provided as is, may be changed, limited or withdrawn at any time without notice, are excluded from support and from any commitment whatsoever, and may not be used for live offerings unless we state otherwise in writing. You use them at your own risk.

5. Fees, invoicing and payment

5.1 Fees consist of (a) a placement fee, calculated as a percentage of the value of the tokens allotted through the Platform and due at allocation, (b) a recurring platform fee, calculated as a percentage per year of the capital under management on the Platform, invoiced monthly and beginning with the fourth month after the first allocation, subject to the monthly minimum stated on the pricing page or in your Order Form, (c) a fixed monthly subscription fee where the tier or Order Form provides for one, invoiced monthly from the month in which you book that tier, (d) usage-based fees for add-ons, and (e) any professional services agreed in an Order Form or requested by you and performed at our hourly rates. “Value of the tokens allotted” means the number of tokens allotted multiplied by their issue price at the time of allocation; a later market value is not relevant, and tokens allotted without consideration are not counted. “Capital under management” means the capital raised through the Platform that is still outstanding, so that repayments, redemptions and conversions reduce the basis from the month following the event. All fees are in euro and exclusive of VAT and other statutory charges.

5.2 Subject to section 6, the placement fee is invoiced at allocation, any fixed monthly subscription fee is invoiced monthly in arrears from the month in which you book that tier, and the percentage platform fee is invoiced monthly in arrears beginning with the fourth month after the first allocation in your offering. Where an offering is allotted in tranches, the placement fee is invoiced on each tranche at its allocation, and the four-month period runs from the first allocation. “Allocation” means the acceptance and allotment of subscribed tokens to an Investor through the Platform. “Capital raised” means all subscriptions accepted through the Platform, regardless of whether the funds are later refunded, rescinded or clawed back for reasons not attributable to us. Usage-based fees are invoiced monthly in arrears based on the usage recorded by the Platform, which is conclusive absent manifest error. There is no minimum term; you may terminate the subscription at the end of any calendar month without notice period and without giving reasons.

5.3 All fees are non-refundable. No refund or credit is given for unused periods, unused features, downgrades, suspensions caused by you, early termination by you, or termination by us for good cause. The only exceptions are those expressly stated in sections 6.2, 12.2 (sub-processor objection), 15.2 (termination for convenience by us) and 16.2.

5.4 Invoices are due within 14 days of the invoice date without deduction. Where you have provided a payment method, you authorise us to charge it on the due date and for all fees that become due under the Agreement. Objections to an invoice must be raised in writing within 14 days of the invoice date; otherwise the invoice is deemed accepted. If you are in default, we may charge statutory default interest for business transactions (§ 456 UGB), a flat compensation of EUR 40 per invoice (§ 458 UGB), reasonable collection and legal costs, and we may suspend your tenant, offerings and widgets after 7 days’ notice until all amounts are paid, and declare all fees for the remaining term immediately due. Access to your data for export remains available during a suspension.

5.5 Fees exclude third-party costs, in particular identity verification and screening fees, payment processing fees, blockchain network (gas) fees, custody fees, e-signature fees, AI provider fees, legal fees of law firms engaged through the Legal Hub and fees of any regulated service provider. These are either paid by you directly to the provider or, where we advance them, re-invoiced at cost plus a 10% handling charge.

5.6 Recurring fees are adjusted once a year on 1 January in line with the change of the Austrian consumer price index (CPI 2020, published by Statistik Austria, or its successor) over the preceding twelve months; changes of up to 2% are carried forward and applied cumulatively; a negative index change does not reduce fees. We may in addition change list prices and fee structures with at least 30 days’ written notice; a change takes effect at your next renewal.

5.7 You may only set off claims that we have acknowledged in writing or that have been finally established by a court. You have no right of retention. You bear all taxes, duties and withholding taxes arising from the Agreement other than taxes on our income, and will gross up payments so that we receive the full invoiced amount.

5.8 Subject to section 6, we may require advance payment or security before providing or continuing services.

6. No ScaleXB fees before your first allocation

6.1 Where the pricing page in force at the time of your order states that nothing is payable until you close, we invoice you no ScaleXB fee before the first allocation in your first offering, for a maximum of twelve months from the date on which we provision your tenant; after that period we agree the terms of an extension with you. This covers the placement fee, the platform fee and any setup fee. It does not cover a fixed monthly subscription fee for a tier sold as a membership, which runs from the booking date and is payable whether or not an allocation follows. “First allocation” means the point at which subscriptions accepted through the Platform are allotted to Investors and settled and the funds are received by you, your escrow agent or your paying agent. If your offering does not reach an allocation, no ScaleXB fee becomes due for it. This commitment does not cover (a) third-party costs under section 5.5, whether you pay them directly or we advance them, (b) add-ons under section 4.3 that you activate before allocation and whose price is shown at activation, (c) professional services you request, and (d) offerings run on FLORIS³ or under a separate Order Form, which are billed as agreed there.

6.2 If we invoice a ScaleXB fee before the first allocation contrary to section 6.1, and you notify us in writing within 14 days of the invoice date, we cancel or credit that invoice. This is your sole and exclusive remedy; you have no right to withdraw from the Agreement or to damages on that basis. Section 6.1 does not oblige us to keep an offering live, to provide services beyond the tier you selected, or to waive fees for any offering after the first allocation has occurred.

7. Your obligations, representations and acceptable use

7.1 You must, at your own expense:

• obtain and maintain all licences, registrations, prospectuses, information sheets, approvals and legal opinions required for your offerings, and observe investor number thresholds, exemption limits and marketing restrictions in every relevant jurisdiction;
• fulfil your own obligations as an obliged entity under anti-money-laundering law, including the decision to accept or reject each Investor, enhanced due diligence, record keeping and reporting of suspicious transactions; the Platform provides tools and evidence but does not take these decisions for you and does not guarantee the accuracy of any third-party verification result;
• provide correct, complete and lawful information and documents, and ensure that everything you publish to Investors through the Platform is accurate, not misleading and cleared by your legal advisors;
• have a lawful basis and, where required, valid consent for every contact you import into the CRM, marketing, referral or affiliate tools, honour unsubscribes, and comply with § 174 TKG 2021, the GDPR and equivalent anti-spam laws when sending messages through the Platform;
• keep your own complete and current backups of all documents and data that are important to you, verify every export before relying on it, and verify every wallet address, amount and configuration before executing an on-chain or payment action;
• cooperate with us in analysing and resolving faults, and report defects in writing within 7 days of discovery;
• comply with all applicable laws and with the reasonable instructions and policies we publish for the Platform.

7.2 You represent and warrant, for the duration of the Agreement, that: you and your beneficial owners, directors and affiliated issuers are not subject to EU, UN, UK or US sanctions and are not located in or organised under the laws of a sanctioned or embargoed country; you are not insolvent; no regulatory proceeding is pending against you in connection with capital raising; and all information you give us is true. You must inform us immediately if any of this changes.

7.3 You must not, and must not allow Users or Investors to:

• use the Platform for any unlawful offering, for market manipulation, money laundering, terrorist financing, sanctions evasion, fraud, pyramid or Ponzi schemes, or to offer instruments to persons in jurisdictions where this is prohibited;
• offer or promote instruments to the public in a way that requires a prospectus or licence you do not hold, or represent that ScaleXB is regulated, endorses, audits or guarantees your offering;
• upload malware, attempt to gain unauthorised access to other tenants or our infrastructure, probe or test the security of the Platform without our written permission, or circumvent usage limits or access controls;
• scrape, copy, reverse engineer, decompile or create derivative works of the Platform, or resell, rent, sublicense or provide the Platform to third parties other than your Investors through the Investor Portal, except as expressly allowed for the white-label investor app;
• use the AI assistant or automations to generate unlawful, discriminatory or misleading content, or submit data to them that you are not entitled to share with the configured AI provider;
• infringe intellectual property, privacy or other rights of third parties, or use the Platform in a way that could harm our reputation or expose us to regulatory scrutiny.

7.4 We may, at our discretion and without liability, suspend or restrict a tenant, offering, widget, User, API key or feature, or remove content, immediately and with notice as soon as practicable, if we believe this section or the law is being breached, if a regulator, court, bank, payment or verification provider requires or requests it, if continued operation could expose us or third parties to material legal, financial, security or reputational risk, or if the security or integrity of the Platform is threatened. We are not obliged to investigate before acting. We will lift the suspension once we are satisfied that the cause is remedied. Fees remain payable during a suspension caused by you or by circumstances in your sphere.

7.5 We are entitled but not obliged to monitor offerings and content on the Platform. Any review we perform is for our own protection and creates no duty towards you or Investors.

8. Blockchain, wallets and digital assets

8.1 The Platform can deploy and administer smart contracts on public blockchain networks (currently Ethereum, Polygon, Avalanche, Stellar and Concordium) that you select. Blockchain networks are operated by independent third parties. We do not control them and bear no responsibility for their availability, fees, forks, reorganisations, congestion, protocol changes, consensus failures, security or the actions of their validators or of other participants.

8.2 Transactions written to a blockchain are irreversible and public. Tokens minted or transferred to a wrong address, lost because of lost or compromised keys, frozen by a network or seized by an authority cannot be recovered by us. You are solely responsible for configuring transfer restrictions and rulesets, for verifying every wallet address and amount before minting, transferring or distributing, for the actions of every address you or your Investors control, and for paying network fees.

8.3 Wallets are provided by third parties (for example embedded wallets by Magic Labs, self-custody wallets such as MetaMask or Freighter, or custody solutions such as Fireblocks that you contract yourself). Private keys are generated and held by the wallet provider or the wallet holder, never by ScaleXB. Each wallet provider’s terms apply to its users. We are not responsible for wallet providers or for any loss of access to a wallet.

8.4 Smart contracts, token standards and deployment scripts are provided as is. Software on public networks can contain undiscovered vulnerabilities, and the legal characterisation of a token can change. You must commission any audit, legal analysis and testing that your own requirements, your Investors or the law demand before a live deployment, and you deploy at your own risk. We have no liability for any loss of, or relating to, tokens, crypto-assets, funds or data on a blockchain, including losses arising from vulnerabilities, exploits, hacks, oracle failures, network failures or misconfiguration, except in cases of our intent.

8.5 Where we hold administrative rights over a smart contract on your behalf, we may pause, upgrade or restrict it without prior notice if we consider this necessary for security, legal or regulatory reasons, and we may transfer or renounce such rights on termination.

8.6 Fiat-to-crypto on-ramps (for example MoonPay or Transak) and payment gateways (for example Stripe or Checkout.com) shown in the Investor Portal are provided by those companies under their own terms and their own KYC. We are not party to those transactions and bear no responsibility for them, for chargebacks, for rejected or delayed payments or for exchange rates.

8.7 You acknowledge that digital assets are volatile, that their legal and tax treatment is uncertain and evolving, and that laws may prohibit or restrict their issuance or transfer. You bear these risks entirely.

9. “As is” provision, availability, support and warranty exclusion

9.1 The Platform is provided “as is” and “as available”. To the fullest extent permitted by law between entrepreneurs, we exclude all warranties, representations and conditions, express or implied, including any warranty of merchantability, fitness for a particular purpose, accuracy, completeness, non-infringement, uninterrupted or error-free operation, security, compatibility or that the Platform meets your requirements, the requirements of your Investors or of any law or regulator. The statutory warranty provisions of §§ 922 et seq. ABGB, including the presumption of defectiveness under § 924 ABGB, are excluded.

9.2 No availability commitment. We do not commit to any availability, uptime, response time, throughput or data durability level. The Platform may be unavailable, slow or restricted at any time, with or without notice, for maintenance, updates, security measures, capacity reasons, failures of hosting, network, blockchain or other third-party providers, or for any other reason. Where the pricing page or an Order Form mentions a target availability, this is a non-binding objective and not a warranty, and no credit, refund or damages are owed for falling short of it.

9.3 Support is provided as a courtesy by email and in-app chat on Austrian business days, with the response targets of your tier as non-binding objectives. Support covers questions about using the Platform; it does not include legal, tax, compliance or structuring advice, training beyond the onboarding included in your tier, data recovery, or work caused by your own misuse, all of which we may decline or offer at our then current hourly rates.

9.4 We continuously develop the Platform and may change, add, limit or remove features, integrations, supported networks, limits and the user interface at any time. Changes required by law, by a regulator, by a third-party provider or for security may take effect immediately. We are not obliged to maintain backward compatibility or to keep any particular feature available.

9.5 It is not technically possible to create software that is free of errors in every configuration. If you report a reproducible defect that materially impairs a core function within 7 days of discovery, we will use reasonable efforts to correct it by repair, workaround or a new version at our choice and within a period that we determine. This is our sole obligation and your sole remedy for defects. You have no right to price reduction, rescission or damages for defects except under section 14. No obligation exists for defects caused by your data, your configuration, your integrations, your modifications, third-party services, blockchain networks or use outside the documentation.

9.6 We have no obligation to keep backups for you or to restore data. Any backups we make are for our own operational purposes only.

10. Customer Data and intellectual property

10.1 All data, documents, contact lists, offering content, brand assets and other material that you or your Users and Investors upload to or generate in your tenant (“Customer Data”) remain your property or that of your Investors. You grant us a non-exclusive, worldwide, royalty-free, irrevocable licence to host, copy, process, transmit, analyse and display Customer Data to provide, secure, operate and improve the Platform, to enforce the Agreement, to comply with law and to respond to authorities, for the term of the Agreement and for as long thereafter as we retain Customer Data under section 12 or the law.

10.2 You warrant that you own or have all rights, licences, consents and lawful bases needed to upload Customer Data and to let us process it as described, that Customer Data is accurate and lawful, and that it does not infringe third-party rights. You bear sole responsibility for Customer Data; we do not review it.

10.3 The Platform, its software, smart contract templates, document templates, workflows, designs, trademarks, documentation, know-how and all improvements, modifications and derivative works, including those suggested by you, remain the exclusive property of ScaleXB and its licensors. For the term of the Agreement we grant you a non-exclusive, non-transferable, non-sublicensable, revocable right to use the Platform for your own business and to allow your Investors to use the Investor Portal. No other rights are granted, whether by implication, estoppel or otherwise. Document templates may be used only for offerings run through the Platform and may not be reused, shared or resold.

10.4 Feedback and suggestions you give us may be used by us without restriction, attribution or compensation.

10.5 We may use aggregated and anonymised usage data that does not identify you, your Users or Investors for any purpose, including to operate, benchmark and improve the Platform, to train non-personal models and to publish industry statistics.

10.6 You permit us to name you as a customer and use your name and logo in customer lists, case studies and marketing unless you object in writing; you may withdraw this permission at any time with effect for the future.

10.7 If a third party claims that the Platform infringes its rights, we may at our option modify or replace the affected part, obtain a licence, or terminate the affected service with a pro rata refund of prepaid fees for the terminated part. This is your sole remedy for infringement claims against the Platform. We have no obligation for claims arising from Customer Data, your configurations, your integrations, use in combination with third-party products or use in breach of the Agreement.

11. AI assistant, automations and the EU AI Act

11.1 The AI assistant and automation features generate content and can create or modify objects in your tenant on your instruction. They are provided as is and as available. Outputs may be inaccurate, incomplete, biased, outdated or unsuitable, and may be discontinued at any time. You must review every output before relying on it, acting on it or publishing it to Investors; you remain fully responsible for all actions taken on your instruction through these features and for all content generated with them. We have no liability for outputs or for actions executed by automations you configured.

11.2 You choose whether to use ScaleXB’s default AI provider or to connect your own provider (currently Anthropic, OpenAI or Google) with your own API key. Data submitted to the assistant is transmitted to the selected provider under that provider’s terms, for which we are not responsible. We do not use your data to train models and require our default provider not to do so, but we do not control the provider and give no warranty regarding its conduct.

11.3 You can restrict which tools the assistant may use per tenant. Tools with write access should be enabled only for Users who are authorised to make the corresponding changes; enabling them is your decision and your risk.

11.4 EU AI Act. The AI assistant and automations are AI systems within the meaning of Regulation (EU) 2024/1689 (the “AI Act”). They are general-purpose productivity tools and are not intended for any use listed in Annex III of the AI Act. Identity verification performed through the Platform uses one-to-one biometric verification to confirm that an Investor is who they claim to be; it is not remote biometric identification, biometric categorisation or emotion recognition. In line with Article 50 AI Act, the assistant is presented as an AI system and its outputs are marked as AI-generated in the Platform. This section describes our current assessment; it is not a warranty of classification, and the classification may change with the law and with your use.

11.5 You are the deployer of these features and are solely responsible for your own compliance with the AI Act. In particular you must: (a) not use them for practices prohibited by Article 5 AI Act (for example social scoring or emotion recognition) or for any Annex III purpose, such as assessing the creditworthiness of natural persons, and if you nevertheless intend a use that could make the system high-risk, you must inform us in advance in writing and carry out your own conformity assessment, and we may prohibit such use; (b) ensure that your Users who operate the AI features have a sufficient level of AI literacy as required by Article 4 AI Act; (c) keep a human in the loop for decisions about Investors and other natural persons; and (d) where you build automations that send AI-generated content to Investors, disclose that the content is AI-generated where the AI Act or other law requires it. We will provide the information about our AI features that you reasonably need and that we have available; further assistance may be charged at our hourly rates. You indemnify us against all claims and fines arising from your use of the AI features.

12. Data protection and data processing agreement

12.1 Each party complies with the GDPR and the Austrian Data Protection Act. How we process personal data of Users and other persons for whom we are controller is described in our Privacy Policy.

12.2 For personal data of Investors, contacts and other individuals that you process through the Platform, you are the controller and we are your processor. You are solely responsible for the lawfulness of the processing, for informing data subjects, for obtaining consents, for the accuracy of instructions and for answering data subject requests. This section 12 constitutes the data processing agreement under Article 28(3) GDPR:

• Subject matter and duration: provision of the Platform for the term of the Agreement and the deletion period thereafter.
• Nature and purpose: hosting, storage, transmission, organisation, analysis and deletion of personal data as required to provide the features you use.
• Categories of data subjects and data: as listed in section 4.3 of the Privacy Policy, including identity documents, financial data and, where you enable it, biometric verification results and sanctions and PEP screening results.
• Instructions: we process personal data only on your documented instructions, which are given through the configuration of your tenant and the use of the Platform’s features, unless EU or member state law requires otherwise, in which case we inform you before processing where legally permitted. We will tell you if we consider an instruction to infringe data protection law; we may suspend execution of such an instruction, and you bear the consequences of instructions you maintain.
• Confidentiality: our personnel with access to personal data are bound by confidentiality obligations.
• Security: we implement technical and organisational measures appropriate to the risk, as summarised in section 13 of the Privacy Policy, and may change them as long as the overall level of protection is not materially reduced.
• Sub-processors: you give general authorisation for the sub-processors listed in section 6.1 of the Privacy Policy and for their replacement or addition. We will inform you at least 14 days before adding or replacing a sub-processor by updating that list or informing your tenant administrators; you may object on substantiated data protection grounds within that period. If we cannot accommodate the objection, either party may terminate the affected service with effect from the change, and we refund prepaid fees for the terminated service pro rata; this is your sole remedy. Integrations you activate with your own credentials are not our sub-processors but your own processors or independent controllers.
• Assistance: taking into account the nature of the processing and the information available to us, we assist you through the self-service functions of the Platform in responding to data subject requests, in ensuring security, in breach notification, in data protection impact assessments and in prior consultations. Any assistance beyond the self-service functions is charged at our hourly rates.
• Breach notification: we notify you without undue delay after becoming aware of a personal data breach affecting your Customer Data, with the information then available to us. You are responsible for notifications to authorities and data subjects.
• Deletion and return: during the 30-day export window after termination you may export Customer Data through the self-service functions of the Platform; thereafter we may delete or anonymise it at any time and will do so within 90 days, unless EU or member state law requires storage, in which case we keep the data blocked for the statutory period only. We have no obligation to return data in any other form or to keep it beyond the export window, and no liability for deletion after that window. Data written to public blockchain networks cannot be deleted.
• Audit: we make available the information reasonably necessary to demonstrate compliance with Article 28 GDPR, in the first instance through documentation, questionnaires and, where available, third-party audit reports or certifications. Only if these are demonstrably insufficient may you audit our compliance, at most once per year, with at least 30 days’ notice, during business hours, at your cost including our time at hourly rates, through an independent auditor bound by confidentiality and approved by us, in a manner that does not compromise other customers or our security.
• Transfers: transfers outside the EEA occur only under the safeguards described in section 12 of the Privacy Policy.
• Liability: our liability under this data processing agreement is subject to section 14. You indemnify us against all claims, fines and costs arising from your instructions, your Customer Data or your breach of data protection law.

13. Confidentiality

13.1 Each party will keep confidential all non-public business, technical and financial information of the other party that it obtains in connection with the Agreement, use it only for the purposes of the Agreement and disclose it only to employees, advisors, financing parties, affiliates and subcontractors who need to know it and are bound by equivalent obligations. This does not apply to information that is or becomes public without breach, was already lawfully known to the recipient, is independently developed, or must be disclosed by law, regulator or court order, in which case the recipient will inform the other party where permitted.

13.2 The terms of the Agreement and our pricing are our confidential information. This section survives termination for five years.

14. Liability and indemnity

14.1 We are liable without limitation only for damage caused by us intentionally, for personal injury, and where liability cannot be excluded under mandatory law such as the Product Liability Act.

14.2 Liability for slight negligence is excluded entirely, including for breach of essential contractual obligations. In cases of gross negligence, our total aggregate liability for all claims arising in a contract year, regardless of the legal basis, is limited to the lower of (a) the fees actually paid by you to us for the Platform in the twelve months preceding the event giving rise to the claim and (b) EUR 50,000. This cap applies to all claims combined, including claims under the data processing agreement and indemnities, and is not increased by multiple claims or claimants.

14.3 In all cases, we are not liable for indirect, incidental, special or consequential damage, loss of profit, revenue, business, goodwill or opportunity, loss of capital raised or not raised, failed or delayed closings, loss of, damage to or inability to access tokens, crypto-assets, wallets or funds, loss or corruption of data, cost of substitute services, business interruption, reputational damage, regulatory fines or penalties imposed on you, claims of Investors or other third parties against you, or damage caused by third-party services, blockchain networks, wallet providers, identity verification results, payment providers, on-ramps, law firms, AI providers or force majeure, except in cases of our intent.

14.4 We are not liable for the legal sufficiency, regulatory compliance, tax treatment or commercial success of any offering, for any decision you or your Investors take on the basis of the Platform, its templates, its outputs or our communications, or for any action we take under section 7.4, 8.5 or 15.

14.5 Any claim for damages must be notified to us in writing within 30 days of the date on which you became aware of the damage, and asserted in court within six months of that date; otherwise it is forfeited. You bear the burden of proof for the existence of gross negligence or intent.

14.6 The limitations in this section apply to all claims, whether in contract, tort, warranty, equity, statute or otherwise, and also to the benefit of our affiliates, officers, employees, subcontractors and licensors, and to claims for reimbursement of expenses. They do not apply where excluded by mandatory law.

14.7 Indemnity. You will defend, indemnify and hold harmless ScaleXB and its affiliates, officers, employees, subcontractors and licensors from and against all claims, demands, proceedings, fines, penalties, losses, damages, liabilities and costs (including reasonable legal fees and the cost of our staff time) asserted by Investors, authorities, regulators, tax authorities, payment or verification providers or any other third party, or incurred by us, arising out of or relating to: your offerings and instruments; your Customer Data and content; your or your Users’ or Investors’ use of the Platform; your breach of the Agreement, of your representations or of applicable law; your instructions; your smart contracts and on-chain actions; your use of the AI features; and any regulatory action concerning your activities. We will notify you of a claim and may control the defence at your cost; you must not settle any claim that imposes obligations on us without our written consent.

15. Term, termination and suspension

15.1 The Agreement begins when you accept these Terms and continues for the billing period you selected (monthly or annual) and any minimum term in your Order Form. It renews automatically for successive periods of the same length unless either party terminates it in writing (email suffices) or, for you, through the cancellation function in the Platform, at least 14 days before the end of the current period, with effect from the end of that period. Monthly subscriptions can be cancelled with effect from the end of the current month.

15.2 We may terminate the Agreement or any part of the Platform for convenience at any time with 30 days’ written notice. Where you have had a live offering with capital under management on the Platform within the preceding twelve months, that notice period is three months. In either case we refund prepaid subscription fees for the period after termination pro rata; this refund is your sole remedy.

15.3 Either party may terminate the Agreement with immediate effect for good cause. For us, good cause includes in particular: a breach of section 7 or of your representations; non-payment for more than 14 days after reminder; insolvency proceedings being applied for, opened against, or refused for lack of assets in respect of you; a regulator, court, bank or key provider prohibiting, restricting or questioning the continued provision or use of the Platform for you; your conduct exposing us to legal, financial or reputational risk; a change in law or in the services of an essential third-party provider that makes continued provision commercially unreasonable; or force majeure lasting more than 30 days. No refund is owed on termination for good cause by us.

15.4 On termination or expiry: your right to use the Platform ends immediately; offerings, widgets, API keys and the Investor Portal are taken offline; all unpaid fees, including platform fees for capital raised before termination, become immediately due; and the export and deletion process in section 12 applies. We may delete Customer Data after the 30-day export window without further notice and without liability. Sections 2, 5, 7.4, 8, 9, 10, 11, 12 (deletion), 13, 14, 15.4, 15.5, 16 and 17 survive termination.

15.5 Because tokens on public blockchains continue to exist after termination, you are solely responsible for arranging their ongoing administration (register keeping, transfer control, distributions, investor communications) with another provider or yourself, and for informing your Investors. We have no obligation to continue any service, to keep smart contracts operational or to provide transition assistance; where we agree to assist, this is at our then current hourly rates, payable in advance, and we may hand over or renounce administrative control of smart contracts at our discretion.

16. Changes to these Terms

16.1 We may amend these Terms at any time, for example to reflect new features, changes in law, in our providers, in our business or to correct ambiguities. We will notify tenant administrators by email or in the Platform at least 14 days before an amendment takes effect and may ask Users to accept the new version at their next login. Amendments required by law, by a regulator or for security may take effect immediately.

16.2 If you do not agree with an amendment that materially disadvantages you and is not required by law, you may terminate the Agreement in writing before the amendment takes effect, with effect from that date; prepaid subscription fees for the period after termination are refunded pro rata, and this is your sole remedy. Continued use after the effective date is acceptance of the amended Terms.

17. General provisions

17.1 Force majeure. We are not in breach and not liable to the extent performance is prevented, hindered or delayed by events beyond our reasonable control, including war, terrorism, natural disasters, pandemics, strikes, government or regulatory action, sanctions, cyberattacks, failure of public power, internet, telecommunications, hosting, cloud, payment, verification, wallet or blockchain providers or networks, and changes in law after conclusion of the Agreement. Fees remain payable during such events.

17.2 Assignment. You may not assign or transfer the Agreement or any rights under it without our written consent. We may assign the Agreement, in whole or in part, to an affiliate, to a successor of the ScaleXB business or in connection with a financing, merger or sale of assets, and will inform you of this.

17.3 Subcontractors. We may use subcontractors and affiliates to perform any part of the Platform.

17.4 Notices. Notices to us go to legal@scalexb.com; notices to you go to the email address of your tenant administrators or are displayed in the Platform. Notices count as received on the next business day after sending or display.

17.5 Written form. Changes to a signed Order Form require written form (email suffices). Our electronic records of acceptances, configurations, usage and communications are admissible and conclusive evidence absent manifest error.

17.6 Severability. If a provision is or becomes invalid or unenforceable, the remainder stays in force and the invalid provision is replaced by a valid one that comes closest to its economic purpose. This also applies to gaps.

17.7 No waiver. Our failure or delay to enforce a right is not a waiver of it.

17.8 Non-solicitation. During the term and for twelve months thereafter you will not, directly or through third parties, solicit or hire any employee or contractor of ours who was involved in providing the Platform to you. For each breach you pay a contractual penalty of twelve gross monthly salaries of the person concerned, without prejudice to further damages.

17.9 Export control and sanctions. You will comply with all applicable export control and sanctions laws in connection with the Platform and will not make it available to sanctioned persons or territories.

17.10 Language. These Terms are concluded in English. Translations are for convenience only; the English version prevails.

17.11 Governing law. The Agreement is governed by Austrian law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

17.12 Disputes. The parties will first try to resolve disputes amicably. The competent court for the first district of Vienna, Austria, has exclusive jurisdiction for all disputes arising from or in connection with the Agreement. We may also sue you at your general place of jurisdiction or wherever you have assets.

18. Contact

Guiding Innovators GmbH · Salzgries 21/16, 1010 Vienna, Austria · FN 536594 i, Commercial Court of Vienna
Legal: legal@scalexb.com · Support: support@scalexb.com · Security: security@scalexb.com

See also our Privacy Policy and Imprint.