General terms and conditions (GTC) of OrSuisse AG

1. Overview

OrSuisse AG (hereafter OrSuisse) is a limited company (Aktiengesellschaft) incorporated under Swiss company law with its head office in Altdorf, Switzerland. OrSuisse provides clients with facilities for the storage of precious metals in specialist high-security vaults in Switzerland and other countries in accordance with art. 472 et seq. Swiss Code of Obligations. These high-security vaults are independent of the banking system. More specifically, OrSuisse provision also includes an option to store silver, platinum and palladium ex-VAT in bonded warehouses. OrSuisse issues warehouse receipts to clients for all precious metals held in storage. These documents, issued in full compliance with Art. 482 in conjunction with Art. 1153 of the Swiss Code of Obligations, entitle clients to retrieve stored precious metals on demand.

2. Scope of Application

2.1     These General Terms and Conditions (GTC) apply to all transactions between OrSuisse and its clients, unless compulsory legal regulations dictate otherwise.

2.2     By concluding a contract, storing or retrieving precious metals, purchasing or possessing a warehouse receipt or using any other services provided by OrSuisse, the client is deemed to accept these GTC and acknowledge their validity and relevance.

2.3     Individual agreements concluded between OrSuisse and its clients may sometimes take precedence over these GTC. However, any alternative client GTC will not apply until OrSuisse has expressly accepted them in writing.

2.4     Even where not explicitly agreed, these GTC will also apply to all future transactions between OrSuisse and its clients.

3. Client identification

3.1     The client is any natural person or legal entity who can identify themselves and is in possession of a valid warehouse receipt with a complete chain of endorsements. In certain instances, OrSuisse reserves the right to specify the presentation of additional documents for identification purposes.

3.2     As regards the provisions of the Swiss Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector (Anti-Money Laundering Act, AMLA) in conjunction with the Swiss Anti-Money Laundering Ordinance (Verordnung der Eidgenössischen Finanzmarktaufsicht über die Verhinderung von Geldwäscherei und Terrorismusfinanzierung, GwV-FINMA) issued by the Swiss Financial Market Supervisory Authority, OrSuisse is not regulated by the Swiss Financial Market Supervisory Authority at the time of the publication of these GTC. However, when concluding a contract, OrSuisse reserves the right to verify a client’s identify without providing any reason. In the case of natural persons, identification will require the presentation of a valid photo ID plus a copy of the same, while legal entities must present a valid trade register excerpt or comparable certification from a foreign registration authority.

3.3     Client data is treated as strictly confidential and only processed for the purpose of storing precious metals. In particular, data will not be passed on to any third parties, except data required in connection with the selected high-security storage facilities insofar as they require the data for storage purposes. OrSuisse reserves the right to release such data to the relevant legal authorities when legally obliged to do so.

3.4     OrSuisse also reserves the right to request valid photo ID documentation from clients at any time for verification purposes.

3.5     OrSuisse expressly forbids clients from holding warehouse receipts in trust for third party accounts.

3.6     OrSuisse reserves the right to reject blank endorsed warehouse receipts.

4. Ownership and title

4.1     Precious metals stored with OrSuisse always remain the property of the client. Any client thus has a legal right to recover their possessions. This also permits the separation of their property in the event of default by OrSuisse. These rights are also exempt from any statute of limitations.

5. Prohibition of borrowing and mortgaging

5.1     OrSuisse is strictly prohibited from mortgaging precious metals warehoused on behalf of its clients as collateral for credit transactions with third parties, or to surrender them to anyone other than the rightful owner without explicit written instructions from the client.

6. Storage and retrieval: Issue, collection and exchange of warehouse receipts

6.1     Clients have the option to store their precious metals by type (type, weight, quantity, denomination) or in segregated storage. When storing by type, clients will receive back precious metals of the same type. With segregated storage, clients will receive back the self same precious metal holdings they deposited for storage (identified by means of the bar or seal numbers noted on the warehouse receipt).

6.2     For all warehousing purposes, OrSuisse will only accept the precious metals it has confirmed to the client in the specified denominations and qualities and bearing the requisite specifications (LBMA-certified refiners etc.).

6.3     After deposit of the precious metals and advance payment of the storage fee, OrSuisse will hand over the respective warehouse receipts to the client or send them via postal mail. Warehouse receipts contain binding information about the quantity and type of the stored precious metals, and include information about prepaid storage fees where applicable.

6.4     When warehouse receipts are sent to the client via by postal mail, OrSuisse commits to sending all such receipts within 14 days from the date of issue.

6.5     The client is obliged to return the relevant warehouse receipts to OrSuisse upon retrieval of the stored precious metals. Unless insufficient proof of ownership is presented (e. g. an incomplete chain of endorsements), OrSuisse will subsequently hand over precious metals in the exact denominations and with the same qualities as described in the warehouse receipt. Prior to retrieving precious metals, the client must settle any storage fees potentially due and/or late charges accrued pro rata temporis.

6.6     OrSuisse guarantees that, at any time, the client can exchange one warehouse receipt for another one entitling the client to the surrender of the same goods. Such exchange requires the presentation of documents for identification with the same validity as when retrieving.

6.7     OrSuisse will seek to verify the authenticity of all presented warehouse receipts. If the verification outcome is negative, OrSuisse can confiscate the respective warehouse receipt for additional examination without giving any further reasons.

6.8     OrSuisse will only accept a warehouse receipt if it is genuine and complete, if everything it contains is clearly recognisable and legible, and if the security features of the relevant warehouse receipt are wholly clear, intact and unambiguous.

6.9     The client agrees to always ship warehouse receipts to OrSuisse with adequate insurance, and in a way that enables OrSuisse to acknowledge and confirm their safe arrival. The burden of proof for the safe receipt of warehouse receipts and all associated shipping risks lies with the client.

6.10     In the course of a procedure of storage, retrieval or exchanging warehouse receipts, the client upon request is obliged to instantly send in or hand over all relevant documents, warehouse receipts or precious metals to OrSuisse. Any client not meeting this obligation within 7 calendar days will be automatically deemed in default without reminder, and OrSuisse may cancel the initiated procedure (storage, retrieval, exchange etc.) without stating any further reasons.

6.11     The following applies to the handover of precious metals, warehouse receipts and all other documents issued by OrSuisse: Complaints can only be raised immediately during a personal handover. Any complaints relating to the shipment of precious metals, warehouse receipts or documents, should be made in writing within 14 days of receipt. Otherwise, OrSuisse considers the handing over and issue of all related documents and warehouse receipts to be a correct and binding arrangement.

6.12     The burden of proof for any deficiency (in documents, warehouse receipts or precious metals handed over to the client by OrSuisse) lies entirely with the client.

6.13     All warehouse receipts issued by OrSuisse are documents of title which are also recognised as securities (cf. article 482 in conjunction with article 1153 Swiss Code of Obligations).

6.14     When several people are noted as owners (e.g. a married couple) on the warehouse receipt (as original owners, via endorsements, etc.), OrSuisse grants each noted person individual signing authority.

7. Storage location

7.1     OrSuisse guarantees to store precious metals on behalf of its clients exclusively in high security vaults in Switzerland and further countries, as listed on its respective website. OrSuisse is free to choose which of those suitable high security vaults to use for storage of the precious metals entrusted to it by its clients. OrSuisse will ensure all such high-security facilities have appropriate insurance cover.

8. Conclusion of contract

8.1     All offers made by OrSuisse on the Internet or via other media are non-binding and subject to change.

8.2     The client usually has to place a binding request for storage either in writing or via electronic means. Where requests are made verbally or by telephone, all costs, as well as the risks and burden of proof of an incomplete or erroneous transmission, rest with the client.

8.3     A legally valid storage contract with OrSuisse is concluded once the warehouse receipts are issued to the client after payment of all fees due.

8.4     OrSuisse is free to decline any client’s storage request without providing any reason.

9. Proof of authenticity, acceptance of bullion meeting LBMA standards, publication of warehouse receipt serial numbers

9.1     OrSuisse will verify the authenticity of all precious metals submitted for storage, as well all warehouse receipts presented for the retrieval of stored precious metals.

9.2     Furthermore, OrSuisse will also check the external condition of any precious metals to be deposited in storage. OrSuisse reserves the right to decline to accept certain precious metals for warehousing without stating any reason.

9.3     OrSuisse enables clients to search for warehouse receipt serial numbers on its webpage, and to view further details of the warehouse receipt by combining the serial number with the relevant verification code. The information thus made available is not legally binding and does not replace the proof of authenticity provided by a warehouse receipt, which can only be confirmed by OrSuisse.

9.4     OrSuisse does not generally provide any information about the authenticity or character of a warehouse receipt over the telephone. However, OrSuisse can provide the client with legally non-binding information about the existence of the serial number of a warehouse receipt.

10. Auditing

10.1     Twice a year, accredited professional auditors conduct an audit of the stock and categories of precious metals warehoused in high-security storage to verify they correspond with the warehouse receipts issued. An official final report is then prepared, which clients may view by prior appointment.

10.2     The auditors register the number, type and format of warehoused bullion stock.

10.3     All precious metal deposits and retrievals are conducted and regulated via a dual control operating and monitoring system.

11. Contract inception, duration and cancellation

11.1     The storage contract between the client and OrSuisse becomes effective from the issue of warehouse receipts upon storage of the corresponding precious metals, and ends with the handing over of precious metals during the retrieval procedure.

11.2     The storage contract is generally concluded for a fixed duration upon prepayment of the appropriate storage fees (the duration of the respective warehouse receipts).

11.3     A storage contract is automatically renewed once the period of validity of the warehouse receipt expires. In this event, clients are obliged to renew their warehouse receipt (i.e. effect a warehouse receipt exchange) or arrange to retrieve the warehoused goods without delay. Any additional storage duration will then be billed to the client pro rata temporis.

11.4     Clients can retrieve their precious metals on demand at any time. OrSuisse will arrange a retrieval appointment (during regular business hours). Confirmation of an OrSuisse appointment usually occurs within 5 working days, but at the latest within 30 days of receiving the client’s retrieval instructions.

11.5     OrSuisse may terminate a storage contract at any time with 30 days’ notice.

12. Power of attorney, death or contractual incapacity of a client

12.1     Should OrSuisse have any evidence or indication of a client’s incapacity to act, it may demand proof of capacity with confirmation from a notary or doctor.

12.2     Clients agree to take all necessary precautions to maintain communication. Clients agree to inform OrSuisse immediately about any change of address.

12.3     Once OrSuisse learns of the death of a client, OrSuisse will only deliver the precious metals stored by the client upon presentation of the corresponding warehouse receipts and a legally acceptable certificate of inheritance from the authorities responsible for processing the estate, and only to all of its heirs directly or to third parties jointly designated by them, or otherwise dispose of it in accordance with the joint instructions of the heirs. OrSuisse is not obliged to conduct its own clarifications. The proven legitimacy of the executor or estate administrator remains reserved. In addition, the relevant original warehouse receipt must always be presented.

12.4     The client’s powers of attorney must be in writing and notarized by a responsible person, and must expressly refer to the client’s warehouse receipts. In addition, any powers granted must extend beyond the client’s death or loss of full capacity.

12.5     A delegation of authority can only be revoked for the future by registered letter to OrSuisse. Any revocation will then become effective upon receipt of the registered letter by OrSuisse.

12.6     All foreign-language documents must be submitted to OrSuisse including a German translation attested by a notary public.

12.7     All costs incurred by OrSuisse in the context of legal clarifications of the above mentioned situations can be billed to the client or to his estate.

13. Fees and costs

13.1     Fees will be charged to the client for the storage of precious metals in high security vaults and the management and administration of warehoused stocks (storage costs) (cf. art. 485 Swiss Code of Obligations). The storage fee is shown as a percentage and measured in grams of the corresponding precious metal. Fees are payable in Swiss Francs converted at the current exchange price of the precious metal at the time of billing.

13.2     Storage fees must be paid in advance for a specific period of storage.

13.3     Should the duration (period of validity) of any prepayment be exceeded, any accruing storage fees and late charges will be billed to the client pro rata temporis, either upon retrieval of the warehoused goods or upon a subsequent exchange of warehouse receipts.

13.4     In the event of a retrieval of the warehoused goods before the expiry of the prepaid storage period, the client will receive a pro rata credit note for any unexpired full years. Reimbursement will be paid out to the client at the exchange price of the precious metal at the time of creation of the credit note, usually within 10 days after completion of the retrieval operation.

13.5     When there is an exchange of warehouse receipts, any prepaid storage time will be credited pro rata temporis and new storage fees charged to the client.

13.6     OrSuisse reserves the right to charge clients additional fees for handling costs (storage, retrieval, exchange of warehouse receipts, shipping costs, verification, refining etc.). The price list applicable will be the OrSuisse price list at the time of the event.

13.7     Should OrSuisse incur any loss or damage due to the receipt of warehouse receipts or precious metals from the client as a result of any deficiencies (damage etc.) or any deviation from the range and required specification of such products as published on OrSuisse webpages, OrSuisse reserves the right to charge these costs to the client.

13.8     The warehouse receipt calculator and virtual storage information on the OrSuisse webpages merely serve as an indication of fees and current values. All information provided by the warehouse receipt calculator, virtual storage guide, or by OrSuisse, is not legally binding. The only legally binding information about fees can be found on the respective OrSuisse invoices sent to clients.

14. Terms of payment, default and counterclaims

14.1     Invoices are generally payable without delay upon receipt by the client. In the case of retrieval of the precious metals or of the warehouse receipts in person, the invoice is due immediately and payable without any deduction at the time of the appointment. Clients who do not fulfil their payment obligation, are immediately deemed to be in default without further notice. In this event, OrSuisse is entitled to charge the client for all resultant loss or damage incurred from the deferred payment (for example, variation in precious metal exchange rates and other expenses).

14.2     An OrSuisse delayed delivery only occurs when the delivery date agreed with the client has passed without delivery and a further six weeks has passed (still without delivery, and despite a written reminder from the client).

14.3     A delayed OrSuisse delivery does not affect client invoices, which employ the exchange prices of the precious metals to calculate the storage fees.

15. Further expenses

Shipment costs or public charges such as taxes and customs duties are charged to the client separately (cf. art. 485 Swiss Code of Obligations).

Any extraordinary expenses OrSuisse may incur in connection with death, loss of legal capacity, dormancy, client identification – especially as regards matters of legitimacy and verification – will be charged to the client or their heirs (external costs according to the invoiced amount, internal costs at the appropriate hourly rate).

Any reminder fees and other expenses OrSuisse may incur in connection with unpaid invoices will be charged to the client in accordance with the expenditure incurred.

16. Charges and taxes

OrSuisse is not liable for any charges, customs duties, taxes or fines incurred in relation to shipment or storage.

17. Insurance

17.1     There is an insurance policy providing full cover for all warehoused precious metals in high-security storage facilities (effective from the date of entry into storage). At their discretion, clients may request a coverage confirmation (Evidence of Insurance).

17.2     OrSuisse monitors the storage facilities it selects and requires them to adjust and maintain the insurance provision at a level appropriate to current conditions.

17.3     For each instance of loss or damage, the client is only entitled to compensation from OrSuisse to the extent that the insurance company provides indemnity to the high-security storage facility or to OrSuisse, less any possible claims or compensation due to OrSuisse.

18. Loss of warehouse receipts

18.1     For their own protection, clients must report any loss of warehouse receipts to OrSuisse immediately and in writing.

18.2     A lost warehouse receipt will only be reissued after a mortification procedure/declaration of invalidity has been legally concluded in accordance with the general and specific legal requirements of the Swiss Code of Obligations (OR). Likewise, the return of deposited precious metals to the entitled party is only possible after the declaration of invalidity has been legally concluded.

18.3     The initiation, conclusion and associated costs of such a cancellation procedure are the responsibility of the client whose warehouse receipt was lost.

19. Right of lien and retention

19.1     Should the client remain in default with his obligations despite two reminder notices, the client grants OrSuisse a lien on all his warehoused precious metals. OrSuisse is thus authorised to take possession of the goods and to sell them at normal market rates up to the amount of the due claims, plus any additional costs incurred. Any residual balance from the sale in favour of the client will be transferred to an account specified by the client.

19.2     Regardless of this right of lien, OrSuisse also has a statutory right of retention for its outstanding claims against the client (art. 485, section 3 Swiss Code of Obligations, art. 895 et seq. Swiss Civil Code).

20. Client exclusions and international sanctions

20.1     The client and – for legal entities – their authorised signatories declare not to possess citizenship rights or a green card for the United States of America (US), not to be domiciled there, not to be liable to pay tax in the US for any other reason (e.g. joint assessment with spouse), and also that they do not fulfil the requirements of the “substantial presence test” (see IRS) nor are they an unincorporated firm or corporation or any other association which was either established or is registered or liable to pay tax in the US, or in a US state, US territory or possession as defined by US law.

20.2     OrSuisse clients agree not to hold the warehouse receipts in trust for a third party, and especially not for those parties mentioned in clauses 20.1, 20.3 and 20.4.

20.3     In addition to clause 20.1 this exclusion further extends to Puerto Rico (PR), United States Virgin Islands (VI), Guam (GU), Northern Mariana Islands (MP), American Samoa (AS), United States Minor Outlying Islands (UM), Marshall Islands (MH), Federated States of Micronesia (FM), Palau (PW), Afghanistan (AF) and Iraq (IQ).

20.4     Furthermore, the acquisition and holding of OrSuisse warehouse receipts by persons, companies and organizations sanctioned by SECO (Swiss State Secretariat for Economic Affairs) is prohibited.

20.5     This exclusion also extends to domiciliary companies whose beneficial owners meet at least one of the above mentioned criteria for exclusion.

20.6     Should OrSuisse become aware of any adverse situation as mentioned above, OrSuisse expressly reserves the right to end the storage agreement within a period of 30 days and to hold the client liable for all ensuing costs. OrSuisse may refuse to release stored precious metals to such persons (see Sections 20.1 – 20.5 above) and may discuss the matter with the relevant authorities.

20.7     OrSuisse is not obliged to fulfil the contract and is in no way liable to the client for any damages if the contract cannot be fulfilled, or cannot be fulfilled in a timely manner, due to coercive measures adopted by Switzerland in accordance with the Embargo Act or other legislation designed to enforce international sanctions.

20.8     OrSuisse liability is also completely excluded in situations where the insurance provider used for valuables can refuse to provide services due to exclusion clauses citing international sanctions.

21. Transports

Transports of warehoused precious metals to and from vaults are always conducted in the name of the client, on behalf of the client, at the client’s risk and at the client’s expense. Such transports are not insured by OrSuisse and usually take place under the insurance protection of the respective transport company. OrSuisse accepts no liability for any transport damage or losses resulting from such transports. The client is responsible for the provision of insurance cover for precious metals during transport to and from high-security storage facilities. The provision of insurance cover associated with storage begins once precious metals are deposited in a high-security storage facility, and ends as soon as they have departed.

22. Liability

22.1     OrSuisse is only liable to the client for damages that were caused by OrSuisse or its auxiliaries with unlawful intent or through gross negligence regarding OrSuisse’s storage obligation, and for damages that were likewise culpable in connection with other services. The burden of proof for negligence on the part of OrSuisse or its auxiliaries lies with the respective client.

22.2     Liability for minor negligence is expressly excluded. There is also no liability for indirect or consequential loss or damage.

22.3     In the event of any claim, the client is always responsible for providing proof of loss or damage. The client is obligated to cooperate to the extent necessary to establish and clarify the facts.

22.4     OrSuisse is not liable for damages suffered by the client which are attributable to force majeure.

22.5     Clients are liable to OrSuisse for all loss or damage caused to OrSuisse by their warehoused goods.

22.6     OrSuisse verifies the authenticity of all precious metals on delivery and is thus able to guarantee the authenticity of all precious metals to the client upon retrieval.

22.7     In particular, OrSuisse is not liable for loss or damage as a result of:

– changes in temperature, humidity, air dryness, water seepage and the like;
– nuclear radioactive contamination, ionising radiation, chemical, biological, biochemical and electromagnetic trials or experiments;
– force majeure such as terrorism, war, cyber attack, contamination by communicable diseases, business interruptions due to pandemics, environmental pollution or other contamination, confiscation, damage or destruction by official decree, etc.;
– an operational disruption or due to legally binding official measures (e.g. access to the safe deposit system is temporarily restricted);
– loss or damage that cannot be attributed to an explicable cause (a so-called “mysterious disappearance”).

22.8    The client must check their valuables for loss or damage and report any such loss or damage to OrSuisse before leaving the high-security room. If this report is not submitted in a timely manner, any subsequent claims will be forfeited.

23. Privacy and data protection policy

23.1     All statutory provisions and limitations of the Swiss Data Protection Act will be respected in full.  The client confirms the receipt of OrSuisse’s data protection regulations (see www.orsuisse.ch) and expressly agrees to data processing to the indicated extent.

23.2     Clients agree to the processing and use of their personal data for internal OrSuisse procedures.

23.3     Clients also agree to the forwarding, processing and use of their personal data for the purposes of communicating a client’s declaration of intent to purchase precious metals to a precious metal dealer chosen by the client, sent via the OrSuisse website.

23.4     Deletion of client data stored with OrSuisse is only possible in accordance with the process outlined in the OrSuisse data protection regulations.

23.5    When a client sends an email to OrSuisse, or provides their email address to OrSuisse, this is deemed to be a consent which allows OrSuisse to communicate with the client by email in unencrypted form using the email address data provided. This may also include sensitive information such as invoices, storage/retrieval confirmations, etc. OrSuisse is not liable if emails are corrupted or intercepted, or if unauthorised persons should gain access to the client’s email account.

24. Reservation of the right of modification

24.1     The GTC applicable are deemed to be the version published on the OrSuisse website.

24.2     Any changes and additions by the client only apply when OrSuisse have accepted them in writing.

24.3     Changes and additions by OrSuisse become applicable and legally effective 14 days after publication on the OrSuisse website, unless the client submits a written objection within this period.

24.4     In the event of a government intervention, or an intervention by an agency affiliated or related to it which poses an impending danger – even of temporary nature – to the smooth execution of its business (e.g. deposit and retrieval operations), OrSuisse is entitled to transfer its rights and obligations under the deposit agreement to one or more third parties (transfer of contractual agreement). The transfer, mentioning all affected warehouse receipts, will be published on OrSuisse’s website and will become applicable and legally binding as of the moment of publication. In the event of a transfer of contract, the client is entitled to object to the transfer or to terminate the contract with effect from the date of the transfer, provided the client takes such action within 21 days.

25. Applicable law, place of jurisdiction and final provisions

25.1     The storage contract, as well as all other services provided by OrSuisse for the client, are without exception subject to Swiss Law.

25.2     The place of jurisdiction for all disputes arising from the contractual relationship between the client and OrSuisse is Zurich (ZH), Switzerland. At the discretion of OrSuisse, action can also be taken against any client at their domicile or registered office.

25.3     If parts of these General Terms and Conditions should be or become invalid or inapplicable, this will not affect the validity of the remaining conditions.