Terms of Use
Please read this document carefully, as it sets out the terms and conditions on which Novaheat OÜ (referred to as "Swell") will provide services to you through our websites, APIs, or mobile applications.
Last updated: September 24th, 2021
Introduction
1.1 Novaheat OÜ is a company, organized and existing under the laws of Estonia, and having its principal place of business at 40108 Puhade, Hiiemetsa kula, Narva-Joesuu linn, Estonia. It is registered by The Consumer Protection and Technical Regulatory Authority of Republic of Estonia under number FVT000356.

1.2 In this document, references to we/our/us are to Swell. Any references to Customer/you/your are references to you as a customer of Swell and user of our services. Any references to the "Service" includes websites, APIs, or mobile applications

1.3 By signing up to use an account through swellexchange.com or any of our associated websites, APIs or mobile applications (collectively the "Site"), you agree that you have read, understood, and accept all of the terms and conditions contained in this Agreement, as well as our Privacy Policy and Cookie Policy.

1.4 This Agreement will govern the use of the Services provided by Swell. By using the Services you agree to be bound by the terms and conditions set out on this Site (the "Agreement"). This Agreement will come into effect when you confirm electronically that you agree to it. We recommend that you retain a copy of this Agreement and transaction records.

1.5 Use of cryptocurrency may be illegal in some jurisdictions. It is your responsibility to know the regulatory requirements concerning transactions with cryptocurrency in your jurisdiction before using the Services.

1.6 For the purposes of this Agreement a "Business Day" is any day which is not a Saturday, Sunday or public holiday in Estonia and which the banks are open for business in Estonia.

DISCLAIMER: The risk of loss in trading or holding any cryptocurrency can be substantial. You should therefore carefully consider whether trading or holding a cryptocurrency is suitable for you in light of your financial condition. In considering whether to trade or hold a cryptocurrency, you should be aware that the price or value of a cryptocurrency can change rapidly, decrease, and potentially even fall to zero.
Eligibility
To be eligible to use any of the Swell Services, you must be at least 18 years old, have capacity to enter into legally binding contracts and reside in a country in which the relevant Swell Services are accessible.
Provided Services
3.1 Swell will act as your commercial agent and by agreeing with these Terms of Use you are explicitly giving Swell permission to act on your behalf and fulfil your order for Cryptocurrency as instructed.

3.1.1 As your Commercial Agent, Swell will purchase Cryptocurrency on your behalf and send / deliver it to the wallet address indicated at the time of the order subject to the conditions of these Terms of Use.

3.1.2 At no point during the purchase, will Swell be in possession or in control of client funds.

3.2 Swell DOES NOT provide Crypto / Digital Asset wallets, nor does Swell host wallets or is custodian of funds or assets.

3.3 Purchases / orders through Swell are one-offs and executed individually, one by one.

3.4 Together, the services set out in clause 3 are referred to in this Agreement as the "Services".

Swell DOES NOT facilitate or provide trading or investment or brokerage accounts or facilities, nor does Swell provide investment or any other financial advice.
Customer
registration
process
4.1 To use the Swell Services, you will need to register for an account by providing your name, email address and accepting the terms of this Agreement. By using Swell Services, you agree and represent that you will use the Swell Services only for yourself, and not on behalf of any third party. You are fully responsible for all activity that occurs under your Swell account. We may, in our sole discretion, refuse to open a Swell account for you, or limit the number of accounts that you may hold or suspend or terminate any account.

4.2 To become a Customer you must also provide Swell with the information that is requested as part of the account opening process to verify your identity and the detection of anti-money laundering terrorist financing, fraud, or any other financial crime and permit us to keep a record of such information.

4.3 You will need to complete certain verification procedures before you are permitted to start using the Swell Services.

4.4 The information we request may include certain personal information including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, information regarding your bank account (such as the name of the bank, the account type, routing number, and account number) network status, customer type, customer role, billing type, mobile device identifiers (IMSI and IMEI) and other subscriber status details. In providing us with this or any other information that may be required, you confirm that the information is accurate and correct and you agree to keep us updated if any of the information you provide changes. We will treat this information in accordance with the Data Protection provisions of this Agreement.

4.5 You authorise us to make enquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these enquiries, you acknowledge and agree that your personal information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our enquiries in full. This is an identity check only and should have no adverse effect on your credit rating. Additionally, we may require you to wait some amount of time after completion of a transaction before permitting you to use further Swell Services and/or before permitting you to engage in transactions beyond certain volume limits.

4.6 Failure to provide any information that Swell reasonably requests from you pursuant to applicable money laundering laws and regulations after you have become a Customer shall be grounds for the suspension of the provision of Services to you (including access to your account) and/or the termination of this Agreement. The nature and extent of the information you are required to provide may differ, for example, based on the Services provided to you under this Agreement and/or the means of payment you use.
Transactions limits and enhanced due diligence
5.1 The use of all Swell Services is subject to a limit on the volume, stated in GBP, EUR or other fiat currency you may transact or transfer in a given period (e.g. daily). To view your limits, login to your Swell account Your transaction limits may vary depending on your payment method, verification steps you have completed, and other factors. We reserve the right to change applicable limits as we deem necessary. If you wish to raise your limits beyond the posted amounts, you may submit a request at support@swellexchange.com.

5.2 We may require you to submit additional information about yourself and provide additional records, if you wish to raise your limits ("Enhanced Due Diligence"). In our discretion, we may refuse to raise your limits, or we may lower your limits at a subsequent time even if you have completed Enhanced Due Diligence.
Cryptocurrency purchase
6.1 You will be able to purchase Cryptocurrencies from us and through our partner’s mobile applications and websites subject to the applicable fees displayed during the purchase flow. The price, exchange rate and amount of the Cryptocurrency that you wish to purchase will be confirmed at the time that you place an order for a Cryptocurrency Purchase.

6.2 Acceptance by us of an order for a Cryptocurrency Purchase does not guarantee that you will receive the corresponding amount of Cryptocurrency. The Cryptocurrency Purchase is conditional upon actual receipt by us of the funds from your credit or debit card, as well as payment of any applicable fees.

6.3 Subject to clause 6.2 and the transaction being honoured by the Customer’s bank, card provider or other relevant party, Cryptocurrency Purchases shall be credited to any Cryptocurrency wallet, as provided by you at the time of the order, as soon as possible once the Cryptocurrency Purchase has been confirmed by the Cryptocurrency network. Once submitted to a Cryptocurrency network, a Cryptocurrency Purchase will be unconfirmed for a period of time pending sufficient confirmation of the transaction by the Cryptocurrency network. Cryptocurrency transactions that are in a pending state will not be credited to the wallet.

6.4 Payment Services Partners. Swell may use a third-party payment processor to process any fiat payment between you and Swell.

6.5 Recurring Transactions. If you set up a recurring purchase of Cryptocurrencies (a "Future Transaction"), you authorize us to initiate recurring electronic payments in accordance with your selected Cryptocurrency Purchase. Your Future Transactions will occur in identical, periodic instalments, based on your period selection (e.g., daily, weekly, monthly), until either you or Swell cancels the Future Transaction. This authorization will remain in full force and effect until you change your Future Transaction settings or until you provide us with written notice via https://support.swell.com.
Cancellations
and refunds
7.1 Once an order / purchase to buy Cryptocurrency has been made it cannot be cancelled or recalled.

7.2 All orders / purchases are final and cannot be refunded once the Cryptocurrency has been sent to the Cryptocurrency wallet indicated at the time of purchase.

7.3 Once an order / purchase has been sent to the Cryptocurrency wallet indicated at the time of purchase it cannot be recalled or retrieved under any circumstances.

7.4 You hereby agree that upon delivery, you will not be entitled to any credit or refund and all purchases are final. Moon Pay Limited's obligation towards you will be absolutely discharged upon delivery of the product to you and shall have no claim or right against Moon Pay Limited upon such delivery.
Suspension, termination and cancellation
8.1 Swell may: (a) refuse to complete, or block or cancel you have authorized,(b) suspend, restrict, or terminate your access to any or all of the Swell Services, and/or (c) deactivate or cancel your Swell Account with immediate effect for any reason, including but not limited to where:

8.1.1 we reasonably believe that we need to do so in order to protect our reputation;

8.1.2 we are, in our reasonable opinion, required to do so by applicable law, regulation or any court or other authority to which we are subject in any jurisdiction;

8.1.3 we reasonably suspect you of acting in breach of this Agreement;

8.1.4 we have concerns that a transaction is erroneous or about the security of your Swell Account or we suspect the Swell Services are being used in a fraudulent or unauthorized manner;

8.1.5 we suspect money laundering, terrorist financing, fraud, or any other financial crime;

8.1.6 use of your Swell Account is subject to any pending litigation, investigation, or government proceeding and / or we perceive a heightened risk of legal or regulatory non-compliance associated with your Swell Account activity; and / or

8.1.7 you take any action that may circumvent our controls such as opening multiple Swell Accounts or abusing promotions which we may offer from time to time.

8.1.8 you fail to provide on request such documentation as Swell (or any third party whose services we use in providing the Services to you under this Agreement) reasonably requires in order to comply with its obligations under applicable money laundering laws and regulations or otherwise to ensure the verification of your identity and/or funding sources to Swell satisfaction.

8.1.9 any Cryptocurrency Purchase is significantly larger in size;

8.1.10 Swell reasonably believes that it is necessary or desirable to do so in order to protect the security of the Account, including circumstances where any Account Details may have been lost or stolen.

8.2 In the case of any such suspension, Swell shall make reasonable efforts to inform you about the withholding or suspension, provided that such disclosure:

8.2.1 is not in breach of any applicable law or regulation and does not contravene the instruction of any competent authority or regulator; and

8.2.2 would not compromise Swell's reasonable security measures.

8.3 Swell shall not be liable to you for any losses you may suffer as a result of any reasonable action it takes to suspend the Account or withhold settlement of a Cryptocurrency Purchase in accordance with this clause 8.

8.4 Where the reasons for Swell's actions under this clause 8 cease to exist, Swell may, at its discretion, either reinstate access to the Account and the Services and/or issue the Customer with new Account Details and reserves the right to ask you to re-complete the account opening procedures as outlined in these Terms and to resolve any open issues with your account before a restriction can be removed.

We may suspend, restrict, or terminate your access to any or all of the Swell Services and/or deactivate or cancel your Swell Account, without reason by giving you one months’ notice. You acknowledge that our decision to take certain actions, including limiting access to, suspending, or closing your Swell Account, may be based on confidential criteria that are essential for the purposes of our risk management and security protocols. You agree that we are under no obligation to disclose the details of its risk management and security procedures to you.
Fees
9.1 All fees payable under this Agreement are displayed during the purchase flow and shall be paid in Euro or any other currency that is agreed between Swell and the Customer.

9.2 Swell reserves the right to pursue any financial losses suffered due to you filing a chargeback procedure with your bank. These can include administration fees levied by the card acquirer and card schemes as well as the monetary value of the cryptocurrencies ordered / purchased.
Data protection law
10.1 You acknowledge that we may process personal data in relation to you, in connection with this Agreement, or the Swell Services. We will process and sometimes update this personal data in accordance with the Privacy Policy. Accordingly, you represent and warrant that:

10.1.1 your disclosure to us of any personal data was or will be made in accordance with all applicable data protection and data privacy laws, and those data are accurate, up to date and relevant when disclosed;

10.1.2 before providing any such personal data to us, you acknowledge that you have read and understood our Privacy Policy, a copy of which is available here.

10.1.3 from time to time we provide you with a replacement version of the Privacy Policy, you will promptly read that notice and provide updated copies of the Privacy Policy to, or re-direct towards a webpage containing the updated Privacy Policy, any individual whose personal data you have provided to us.
Liability
11.1 This clause 11 sets out Swell's entire financial liability (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer:

11.1.1 arising under or in connection with this Agreement;

11.1.2 in respect of any use made by the Customer of the Services or any part of them; and

11.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2 Except as expressly and specifically provided in this Agreement, Swell disclaims all warranties and conditions express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Services, their use and the results of such use.

11.3 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement to the fullest extent permitted by applicable law.

11.4 Whilst Swell takes every care to ensure that the standard of the Website remains high and to maintain the continuity of it, the Internet is not always a stable medium, and errors, omissions, interruptions of service and delays may occur at any time. As a result, we do not accept any ongoing obligation or responsibility to operate the Swell API.

11.5 Swell disclaims all liability associated with the use of Cryptocurrency, including:

11.5.1 unknown inherent technical defects;

11.5.2 regulatory or legislative changes; and

11.5.3 currency fluctuation.

11.6 Nothing in this Agreement excludes the liability of Swell:

11.6.1 for death or personal injury caused by Swell negligence;

11.6.2 for fraud, fraudulent misrepresentation or fraudulent misstatement; or

11.6.3 any statutory liability not capable of limitation.

11.7 Subject to clause 11.6, Swell will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, loss or corruption of data, depletion of goodwill and/or similar losses, or pure economic loss, or for any special, punitive, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement or for any loss, damage or corruption of any Cryptocurrency as a result of the instructions, acts or omissions of the Customer. This shall include any losses attributable to a failure by the Customer to keep secure any security or other information relating to the Wallet and access to it.

Except for the express statements set forth in this Agreement, you hereby acknowledge and agree that you have not relied upon any other statement or understanding, whether written or oral, with respect to you use and access of the Swell Services and Site.
Stored card details
13.1 We are legally obligated to secure your consent to allow us to store your card details for future use and cannot process your payment before you agree to such storing. By accepting these Terms of Use, you hereby give us permission to do so.

13.2 Your card will remain stored against your account for transactional purposes, unless you decide to remove it, or until the card expires. For legal and regulatory purposes, we will continue to store records of your transactions in accordance with our Privacy Policy.

13.3 We need to do this so that you will be able to deposit and withdraw more easily in future and it also helps us to prevent and detect any fraudulent activity.

13.4 Stored details are primarily used so that you don’t have to re-enter all your details for every transaction you make. In your account you will see the last 4 digits of the card number, and this forms the reference for you to reference the correct card you wish to use.

13.5 We also compare stored details in our fraud screening systems, to prevent your details being used on any other accounts and safeguard your data.

13.6 As per our policy, if you don’t agree to us storing your payment card details, we won’t be able to process your deposit from the card used.

13.7 Changes in the permitted use will require your agreement, we will notify you if this occurs.
Right of withdrawal
14.1 You have 14 (fourteen) calendar days to exercise your right of withdrawal from this Agreement, without having to justify any reason or pay any penalty. This withdrawal period begins on the day after the date that your application is accepted by us.

14.2 We will not normally provide the Services during the withdrawal period. Any Services, orders or purchases which are fully performed before a withdrawal cannot be reversed.

14.3 You must notify your withdrawal request to us within the allotted period by email to support@swellexchange.com.

14.4 If you exercise your right of withdrawal, this Agreement will be terminated at no cost to you.
Term
15.1 This Agreement will commence in the manner set out in clause 1 and will continue unless either party notifies the other of termination, in writing, in accordance with this Agreement.

15.2 This Agreement can be terminated immediately by the Customer providing written notice to Swell.

15.3 This Agreement can be terminated by Swell in accordance with all the provisions of this agreement.
Force majeure
16.1 No party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control.
Notices
17.1 We may (where allowed to do so by law) communicate with you by posting information in your Account or on the Website, in which case the information will be treated as received by you when it is posted by us.

17.2 We may also contact you at the postal or email address you provide us with when applying to open your Account. Notices sent by email will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9 am on the first Business Day following dispatch). Notice sent by post will be deemed to have been received on the second business day after posting.
Complaints
18.1 For any complaint relating to the Services, you are advised to contact support@swellexchange.com.
General
19.1 Your Compliance with Applicable Law. You must comply with all applicable laws, regulations, licensing requirements and third party rights (including, without limitation, data privacy laws) in your use of the Swell Services.

19.2 We grant you a limited, non-exclusive, non-transferable license, subject to the terms of this Agreement, to access and use the Site, and related content, materials, information (collectively, the "Content") solely for approved purposes as permitted by us from time to time. Any other use of the Site or Content is expressly prohibited and all other right, title, and interest in the Site or Content is exclusively the property of Swell and its licensors. You agree not to copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part.

19.3 "Swell", swellexchange.com and all logos related to the Swell Services or displayed on the Site are trademarks or registered marks of Swell or its licensors. You may not copy, imitate or use them without our prior written consent or any third party's copyright, trade secret, patent or other intellectual property rights, or rights of publicity or privacy.

19.4 Your use of the Swell Services and the Site is subject to international export controls and economic sanctions requirements. By sending, buying, selling, Cryptocurrencies through the Site or Swell Services, you agree that you will comply with those requirements. You are not permitted to acquire Cryptocurrency or use any of the Swell Services through the Site if:

19.4.1 you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan, or Syria or any other country subject to United States embargo, UN sanctions, the European Union or HM Treasury's financial sanctions regimes (each a "Sanctioned Country"), or if you are a person on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Commerce Department's Denied Persons List, Unverified List, Entity List, or the EU or HM Treasury's financial sanctions regime (a "Sanctioned Person"); or

19.4.2 you intend to supply any acquired or stored Digital Currency or Swell Services to a Sanctioned Country (or a national or resident of a Sanctioned Country) or Sanctioned Person.

19.5 We will notify of you any change to the Agreement on your first use of the Swell Services after any amendment. You will be deemed to have accepted the change if you continue to use the Swell Services. If you do not accept the change you should let us know, and the Agreement will terminate. You may also end the Agreement immediately and free of charge with effect at any time.

19.6 We may make all other amendments to the Agreement by posting the revised Agreement on the Site or by emailing it to you, indicating when the revised Agreement becomes effective. Although we will endeavour to provide you with advance notice where possible, where lawful we may indicate that the revised Agreement shall be effective immediately and if you do not agree with any such modification, you should close your Swell Account and cease using the Swell Services.

19.7 Copies of the most up-to-date version of the Agreement will be made available in the Site at all times and will be provided to you by email on your request.

19.8 Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, either you or Swell to be treated as partners or joint ventures, or either you or Swell to be treated as the agent of the other.

19.9 If you receive information about another user through the Swell Services, you must keep the information confidential and only use it in connection with the Swell Services. You may not disclose or distribute a user’s information to a third party or use the information except as reasonably necessary to carry out a transaction and other functions reasonably incidental thereto such as support, reconciliation and accounting unless you receive the user’s express consent to do so. You may not send unsolicited communications to another user through Swell.

19.10 Contact Information. You are responsible for keeping your email address and telephone number up to date in your Swell Account profile in order to receive any notices or alerts that we may send you (including notices or alerts of actual or suspected Security Breaches).

19.11 Entire Agreement. This Agreement (including documents incorporated by reference herein) comprise the entire understanding and agreement between you and Swell as to the subject matter hereof, and it supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of this Agreement), and every nature between and among you and Swell.

19.12 Section headings in this Agreement are for convenience only and shall not govern the meaning or interpretation of any provision of this Agreement.

19.13 This Agreement is personal to you and you cannot transfer or assign your rights, licenses, interests and/or obligations to anyone else. We may transfer or assign our rights licenses, interests and / or our obligations at any time, including as part of a merger, acquisition or other corporate reorganisation involving Swell, provided that this transfer or assignment does not materially impact the quality of the Swell Services you receive. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

19.14 Invalidity. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, this will not affect the validity of any other provision. If any provision is found unenforceable, the unenforceable provision will be severed, and the remaining provisions will be enforced.

19.15 We may not always strictly enforce our rights under this Agreement. If we do choose not to enforce our rights at any time, this is a temporary measure and we may enforce our rights strictly again at any time.

19.16 This Agreement and any information or notifications that you or we are to provide should be in English. Any translation of this Agreement or other documents is provided for your convenience only and may not accurately represent the information in the original English. In the event of any inconsistency, the English language version of this Agreement or other documents shall prevail.

19.17 Change of Control. In the event that Swell is acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you and our relationship with you (including this Agreement) as part of such merger, acquisition, sale, or other change of control.

19.18 All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, the Sections relating to suspension or termination, Swell Account cancellation, debts owed to Swell, general use of the Site, disputes with Swell, and general provisions will continue to be binding and operate after the termination or expiration of this Agreement.

19.19 This Agreement will be governed by, and construed in accordance with, the laws of Estonia and, subject to any overriding legal requirements, the parties irrevocably submit to the exclusive jurisdiction of the Estonian Courts. This Agreement and any information or notifications that you or we are to provide should be in Estonian.

19.20 If you have any feedback, questions, or complaints, you may contact us via our customer support webpage or at support@swellexchange.com.