Terms of Use

Dated: 19-Dec-2018

Legal & Regulatory

General Business Terms & Conditions

Dated: 19-Dec-2018

This document encompasses these General Business Terms & Conditions, including the Storage Agreement, the Risks Disclosures and the User Agreement, hereinafter collectively referred to as the Terms. These Terms govern the contractual relationship between the user of the STO SHERPAS Platform and SMART SHERPAS GROUP, LLC. The Terms are legally binding. Please read them carefully before using any of SMART SHERPAS services. This document comes into force upon its publication. Words in the singular include the plural, and vice versa, those in masculine also include the feminine.

Introduction

 

1.Definitions

  1. SMART SHERPAS GROUP, LLC, hereinafter referred to as “SMART SHERPAS”, is a company incorporated under Law of the State of Wyoming with its registered office in the Sheridan, WY, USA. SMART SHERPAS is a financial intermediary, whose focus is to enable trading in Digital Assets to a wide community. SMART SHERPAS operations are carried out through its online trading platform, hereinafter referred to as “STO SHERPAS Platform”.
  2. “Client” or “Clients” are both corporate bodies (legal entities, foundations, associations, etc.) and individuals who are using and/or intending to use the services provided by SMART SHERPAS through the STO SHERPAS Platform.
  3. “Cryptocurrency” means a type of digital currency based on blockchain technology.
  4. “Fiat Currency” means an official currency regulated by a government and is not backed by a physical commodity.
  5.  “Digital Assets”, for the purposes of these Terms shall include, but shall not be limited to, generally accepted crypto-currencies (e.g. Bitcoin, Ether, etc.) and other forms of tokenized assets (e.g. protocol, utility and payment tokens, etc.) and all associated contracts and options for present or future delivery of tokenized assets. A tokenized asset is understood as a digital representation of an asset on or off a blockchain.
  6. “Ticker”, for the purpose of these Terms, mean the symbol used to uniquely identify Digital Assets and tokens traded on the STO SHERPAS Platform or other crypto exchanges.
  7. The “STO SHERPAS Platform” is on an online trading platform (crypto to crypto) for Digital Assets. In addition, the STO SHERPAS Platform does provide Fiat Currency trading capabilities, therefore, being subjected to stringent regulations e.g. international regulations on Anti-Money Laundering and Countering of Terrorism Financing.
  8. SMART SHERPAS Account” means, for the purposes of these Terms, an arrangement made between the Client and SMART SHERPAS. The Client may deposit, withdraw and use funds for investing into Digital Assets traded on the STO SHERPAS Platform. For withdrawals of Digital Assets, certain restrictions apply.
  9. These Terms describe the conditions which Clients accept and abide throughout its relationship with SMART SHERPAS. It is the Client’s responsibility to read and understand these Terms and its amendments. Click here to check the Risks Disclosures. Click here to check the User Agreement.
  10. The Client understands and acknowledges that SMART SHERPAS may change the provisions set forth herein and that the Terms are not, under any circumstance, negotiable. Changes will be published online on smartsherpas.com or by other communication means deemed appropriate by SMART SHERPAS.

2. Scope

The Terms shall govern the relationship between the Client and SMART SHERPAS (hereinafter collectively referred to as the “Parties”), subject to general industry standards and established rules of financial service practice. In particular, the provisions set forth below shall govern the legal relationship between the Parties with regard to the use of the STO SHERPAS Platform for the purpose of executing transactions via the STO SHERPAS Platform.

Provision of services

 

3.0 Registration and Relationship Acceptance

When registering a SMART SHERPAS Account to enable trading through the STO SHERPAS Platform, the Client goes through the registration and the relationship acceptance procedures (“acceptance procedure”). The Client must be duly accepted. The acceptance procedure is defined exclusively by SMART SHERPAS.

3.1. International Restrictions

The Client understands that SMART SHERPAS complies with international restrictions imposed by countries on Digital Assets trading. The Client, therefore, accepts that SMART SHERPAS may decline a registration and/or relationship with Clients who fall under the mentioned restrictions.

3.2.Account Creation

In order to engage in any trades or services on the STO SHERPAS Platform, the Client must create a SMART SHERPAS Account and provide any requested information by SMART SHERPAS. When a SMART SHERPAS Account is created, the Client agrees to:

  • create a strong password, following SMART SHERPAS instructions, which is used exclusively for SMART SHERPAS;
  • provide accurate and truthful information;
  • maintain and promptly update the SMART SHERPAS Account information;
  • maintain the security of the SMART SHERPAS Account by protecting the password and restricting access to the SMART SHERPAS Account;
  • promptly notify SMART SHERPAS if the Client discovers or otherwise suspects any security breaches related to the SMART SHERPAS Account; and
  • take responsibility for all activities that occur under the SMART SHERPAS Account and accept all risks of any authorized or unauthorized access to the SMART SHERPAS Account, to the maximum extent permitted by law.

3.3 Joint Accounts

The client is not allowed to share the account with another individual or entity.

3.4. Account Security Incidents

If the Clients suspects that his SMART SHERPAS Account or any of the security details have been compromised or the Client becomes aware of any fraud or attempted fraud or any other security incident (including a cyber-security attack) affecting the SMART SHERPAS Account and/or SMART SHERPAS (together a “Security Breach”), you must notify SMART SHERPAS as soon as possible by email free of charge at smartsherpas.com and continue to provide accurate and up to date information throughout the duration of the Security Breach. The Client must take any steps that are reasonably required to reduce, manage or report any Security Breach. Failure to provide prompt notification of any Security Breach may lead to the loss of Digital Assets maintained on the SMART SHERPAS Account.

3.5. Username and Password

In order to access SMART SHERPAS services, the Client is required to create or be given security details, including a username and password. The Client is responsible for keeping the electronic device through which he accesses the STO SHERPAS Platform safe and maintaining adequate security and control of any and all security details used to access the STO SHERPAS Platform. This includes taking all reasonable steps to avoid the loss, theft or misuse of such an electronic device and ensuring that such electronic device is encrypted, and password protected. Any loss or compromise of the Client´s electronic device or security details may result in unauthorized access to the SMART SHERPAS Account by third-parties and the loss or theft of any Digital Assets and/or funds held in the SMART SHERPAS Account and any associated accounts, including your linked bank account(s) and credit card(s).

3.6. Authorization

Any person logging onto the system by entering the correct email/username and personal password or identifying himself to SMART SHERPAS as a SMART SHERPAS Account authorized person by giving the correct email/username and personal password shall have access to the STO SHERPAS Platform. The Client shall be obliged to keep the password secret at all times, to keep it out of reach of third parties and to protect it from misuse. The Client is advised to change the password regularly. The Client shall bear sole responsibility for any consequences of the loss or misuse of his email/username and/or password. SMART SHERPAS shall not be liable for any damage resulting from the loss or misuse of the Client’s email/username and/or password. Except for gross negligence on the part of SMART SHERPAS, any loss or damage arising from invalidity or undiscovered fraud shall be borne by the Client. The Client undertakes to inform SMART SHERPAS immediately if the SMART SHERPAS Account needs to be blocked or the email/username and/or password need to be blocked or replaced. At its discretion, SMART SHERPAS may likewise introduce and require additional levels of identification, such as 2-Factor-Authentification.

3.7. Irrevocable entitlement

Any person verifying his identity in accordance with item 3.5 above shall be considered entitled to use the STO SHERPAS Platform on the Client’s behalf. SMART SHERPAS shall be entitled to assume that orders and instructions arising in this manner have been duly approved and issued by the Client and/or authorized persons.

3.8 Documentation

3.8.1 During the acceptance procedure, SMART SHERPAS will request documentation and/or information (e.g. through a form) from the Client. The Client must provide SMART SHERPAS with all documents and information promptly and accurately. The Client accepts that delays from his/its side to provide documents and/or information may delay the acceptance procedure.

3.8.2 SMART SHERPAS shall request additional information and/or documentation when deemed necessary to clarify any doubts relating to the Client’s identity, the purpose of the relationship and/or related to any other topic. The Client accepts that depending on the service chosen, SMART SHERPAS may request further information and documents.

3.8.3. SMART SHERPAS is not, under any circumstance, obliged to return the documents provided by the Clients.

3.9 Acceptance

SMART SHERPAS shall unilaterally accept or reject potential Clients in accordance with its own internal rules, as well as international Anti-Money Laundering and Countering of Terrorism Financing regulations and guidelines (hereafter, “AML & CTF regulations and guidelines”).

3.10 Provision of cross-border services (local restrictions)

The Client confirms that he took the steps to open a SMART SHERPAS Account on his own initiative and that SMART SHERPAS did not approach him in this regard; if this is not the case, the Client undertakes not to finalize the registration. The Client shall request information on other services provided by SMART SHERPAS to which he has not yet subscribed. SMART SHERPAS shall decide at its sole discretion whether or not to communicate such information to the Client. The Client is aware that SMART SHERPAS may not be able to provide him with all or some of its services and/or products based on his place of residence and/or status. Similarly, smartsherpas.com may not be accessible based on the Client’s place of residence. This applies in particular to Clients resident in a country where the distribution of the information contained on smartsherpas.com contravenes laws in that country. The Client is obliged to inform SMART SHERPAS of any change in place of residence or status which could affect the provision of services and/or products by SMART SHERPAS. Unless otherwise indicated by SMART SHERPAS, the information published on smartsherpas.com or sent to the Client shall not be construed as constituting an offer.

3.11 Blocking access

SMART SHERPAS reserves the right to block the Client’s access at any time, without explanation and without notice, to the extent it deems such blockage appropriate. The Client may at any time request SMART SHERPAS to block its SMART SHERPAS Account with immediate effect. The blockage can only be revoked by the Client in writing.

3.12. Declaration of non-US status or US status

SMART SHERPAS is committed to facilitating the implementation of the “Foreign Account Tax Compliance Act” (hereinafter, the FATCA Regulations”) with the US tax authorities (hereinafter the ” IRS”) pursuant to Agreements between countries SMART SHERPAS operates in and the United States of America (hereinafter the “USA”).

3.12.1. Individuals

If the Client is an individual, he has confirmed that:

(i) he is a “non-US person”, i.e. he is not a US citizen (be it by single, dual or multiple nationalities) and does not have a “resident alien” status (e.g. he is not holding a “Green Card” and has not been a long-term resident in the USA in the current year and the previous two years). Further, the Client confirms that he is the beneficial owner of the funds transferred to the STO SHERPAS Platform and the income generated therewith in accordance with US tax law. SMART SHERPAS is entitled to ask for further documentation if US indicia are identified; OR

(ii) he is a “US person”, i.e. he is a US citizen (be it by single, dual or multiple nationalities) or he has a “resident alien” status (e.g. because he is holding a “Green Card” or has been a long-term resident in the USA in the current year and the previous two years). Further, the Client confirms that he is the beneficial owner of the funds transferred to the STO SHERPAS Platform and the income generated therewith in accordance with US tax law. If the Client is or becomes a US person, the FATCA Regulations require that the Client provides SMART SHERPAS with an appropriate W-Form. By providing a W-Form to SMART SHERPAS, the Client accepts that SMART SHERPAS shall provide, directly or indirectly, the IRS, SMART SHERPAS’s withholding agents and custodians, or any related parties, with confidential and personal information about the Client and his Accounts with SMART SHERPAS, such as the Client’s identity, name and address, his Tax Identification Number (“TIN”), the SMART SHERPAS Account value and income and gains as well as documents such as IRS forms. The Client hereby irrevocably consents to such disclosure and fully releases SMART SHERPAS from its obligations of confidentiality and/or data protection under any applicable law(s) which might otherwise preclude the disclosure of such information.

If the Client is an individual, he shall inform SMART SHERPAS immediately of any change to his “non-US person” status. In such event, the FATCA Regulations require that the Client provides SMART SHERPAS with a new W-Form within 90 days. If no W-Form is provided, the Client acknowledges that, in accordance with the FATCA Regulations, SMART SHERPAS shall (a) report his Account(s) details to the IRS in an aggregated form, (b) deliver under a mutual assistance procedure specific information concerning his Account(s) to the respective competent authority, which may exchange this information under the double taxation agreement with the IRS and (c) under certain circumstances set forth in the FATCA Regulations, levy a withholding tax of 30% on his income and earnings in accordance with US tax law.

3.12.2. Legal Persons

If the Client is not an individual,

(i) it is a “non-US person”, i.e. it has not been created, is not registered or incorporated in the USA and it is not a US person for any other reason. Further, the Client confirms that it is the beneficial owner of the transferred funds and the income generated therewith in accordance with US tax law.

SMART SHERPAS is entitled to ask for additional documentation;

OR

(ii) it is a “US person”, i.e. it has been created, is registered or incorporated in the USA or it is a US person for any other reason. Further, the Client confirms that it is the beneficial owner of the transferred funds and the income generated therewith in accordance with US tax law. If the Client is or becomes a US person, the FATCA Regulations require that the Client provides SMART SHERPAS with an appropriate W-Form. By providing a W-Form to SMART SHERPAS, the Client accepts that SMART SHERPAS shall provide, directly or indirectly, the IRS, SMART SHERPAS’ withholding agents and custodians, or any related parties, with confidential and personal information about the Client and its Accounts with SMART SHERPAS, such as the Client’s identity, name and address, its Tax Identification Number (“TIN”), the SMART SHERPAS Account value and income and gains as well as documents such as IRS forms. The Client hereby irrevocably consents to such disclosure and fully releases SMART SHERPAS from its obligations of confidentiality and/or data protection under any applicable law(s) which might otherwise preclude the disclosure of such information. In the case where the Client is not the ultimate beneficial owner of the securities held and the income generated therewith in accordance with US tax law, the Client shall inform SMART SHERPAS and disclose the details about the beneficial owner.

If the Client is not an individual, it shall immediately inform SMART SHERPAS of any change to its “non-US person” status. In such event, the FATCA Regulations require that the Client provides SMART SHERPAS within 90 days with a new W-Form. If no W-Form is provided, the Client acknowledges that, in accordance with the FATCA Regulations, SMART SHERPAS (a) may be obliged to report its account(s) details to the IRS in an aggregated form, (b) may be obliged to deliver under a mutual assistance procedure specific information concerning its account(s) to the respective competent authority which may exchange this information under the double taxation agreement with the IRS and (c) under certain circumstances set forth in the FATCA Regulations, may levy a withholding tax of 30% on its income and earnings in accordance with US tax law. SMART SHERPAS my ask for further documentation/confirmation to confirm the Client’s FATCA status according to the FATCA Regulations.

The Client acknowledges that, for legal and operational reasons, SMART SHERPAS reserves the right to prevent US persons from trading any US related Digital Assets offered on the STO SHERPAS Platform. In view of the above, in particular where the Client holds US Digital Asset in the SMART SHERPAS Account at the time he/it becomes a US person, the Client agrees that SMART SHERPAS may ask the Client to sell all US Digital Assets held in Account and that, if no W-Form is provided within 90 days, the proceeds of the sale of the US Digital Assets may be subject to “Backup Withholding Tax” at the rate applicable at the time of the sale (currently 28 percent), which is to be paid to the IRS.

3.13. Residence for tax purposes

On 21 July 2014, the Organization for Economic Co-operation and Development (OECD) released a Standard for Automatic Exchange of Financial Account Information in Tax Matters (the “Standard”). The Standard and its current and future related international and national laws (together, the “AEOI Regulations”) call on governments that have signed at least one automatic exchange of tax information agreement (the “Reporting Jurisdictions”):

(i) to obtain, from their financial institutions, detailed account information and

(ii) to have their respective competent authorities exchange that information automatically with other Reporting Jurisdictions on an annual basis, where both respective jurisdictions have entered into a mutual agreement to exchange such tax information.

3.13.1 The Client understands that SMART SHERPAS may need to apply enhanced due diligence procedures to record the residence for tax purposes of the Client, including where the Client is not a resident for tax purposes in a Reporting Jurisdiction. In the above-mentioned context and, in particular, as part of the SMART SHERPAS acceptance procedure, the Client:

(i) confirms his/its residence(s) for tax purposes (i.e. the jurisdiction s) in which the Client is treated as being tax resident, according to each such jurisdiction’s domestic tax legislation),

(ii) provides SMART SHERPAS with one or more valid Taxpayer Identification Number(s) (the “TIN(s)”) or any other high integrity number with an equivalent level of identification (as determined by each jurisdiction for AEOI purposes),

(iii) provides SMART SHERPAS with his date of birth, and

(iv) if requested by SMART SHERPAS, provides any reasonable documentation or explanations in order to support the above.

3.13.2 In addition, where the Client must be regarded as an entity, the Client:

(i) confirms its status as a reporting financial institution (FI), non-reporting FI, active non-financial entity (NFE) or a passive NFE,

(ii) ensures the provision of the residence(s) for tax purposes, TINs and dates of birth of every controlling person (as defined by the AEOI Regulations and provided that the entity must be regarded as having one or more controlling person(s) pursuant to the AEOI Regulations), and

(iii) if requested by SMART SHERPAS, provides any reasonable documentation or explanations in order to support the above.

3.13.3 The Client understands that SMART SHERPAS may be required to report certain Client information and, where relevant, information on the entity’s controlling persons (including, but not limited to, name, address and date of birth) as well as certain Client’s SMART SHERPAS Account(s) information (including, but not limited to, balance and sales proceeds from Digital Assets) to the competent authority. The Client understands that the competent authority may then pass on such information to the tax authorities of each Reporting Jurisdiction for which the Client is regarded, pursuant to the AEOI Regulations, as a resident for tax purposes, but only to the extent that there is an agreement in place for the exchange of tax information between the competent authority and the other Reporting Jurisdiction(s). By agreeing to the Terms, the Client hereby acknowledges that such information may be reported to the competent authority, provided that SMART SHERPAS, in its sole discretion, determines that such information must be reported pursuant to the AEOI Regulations.

3.13.4 The Client acknowledges that his/its information may then be used, by the competent authorities of these Reporting Jurisdictions, for other purposes than those set forth by the AEOI Regulations, albeit within the confines of any applicable law. The Client shall inform SMART SHERPAS immediately of any change to his/its residence(s) for tax purposes, TIN(s) or of any other relevant change in circumstances. In such event, the Client shall provide SMART SHERPAS, in due time, with any documentation or explanations that SMART SHERPAS can reasonably expect in order to comply with the AEOI Regulations. The Client understands that where the information provided to SMART SHERPAS is inaccurate or incomplete; SMART SHERPAS may need to report the Client as being resident for tax purposes in more than one Reporting Jurisdiction. The Client understands that if he/it provides SMART SHERPAS with incorrect information, be it intentionally or negligently, the Client may incur a fine imposed by any competent authority. In complying with the above, the Client may need to refer to a tax advisor and/or to sources publicly available. Without prejudice to the above, the Client may also qualify as a U.S. person. This Section must, therefore, be read in conjunction with Item 3.7 and following above.

3.14. Fiscal responsibility

The Client is aware and accepts that SMART SHERPAS does not provide any tax or legal advice of any kind. The Client confirms that he is in compliance with the tax regulations of the country or countries in which he assumes fiscal responsibility. SMART SHERPAS shall not verify the fiscal integrity of the Client and accepts no responsibility in this regard. The Client is aware that it is his responsibility to ensure that the fiscal implications of his activities with SMART SHERPAS are controlled. The Client will, if need be, request advice from legal or tax experts

3.15. Lack of legal capacity

Damage resulting from the Client’s lack of legal capacity shall be exclusively borne by the Client. In any event, the Client shall bear any damage resulting from lack of legal capacity on the part of other third parties having access to the Client’s SMART SHERPAS Account.

4. STO SHERPAS Platform

SMART SHERPAS provides an online trading platform. The STO SHERPAS Platform is comprised of an order book and a matching engine. In general, transactions are matched directly between counterparties. SMART SHERPAS may be one of the counterparties, and SMART SHERPAS may, in certain cases, act as intermediary to adhere to legal and regulatory requirements.

4.1. SMART SHERPAS undertakes to make its technical systems and specialist knowledge available to Client to enable the latter to execute transactions on the STO SHERPAS Platform. SMART SHERPAS grants its Clients the access to and right to use the STO SHERPAS Platform. Certain services are subject to fees according to a separate fee schedule.

4.2. The access and right of use are non-exclusive and non-transferable. The Client shall not be entitled in any event to copy, modify, reproduce the software provided by SMART SHERPAS nor to distribute it in any other way, except when explicitly allowed by SMART SHERPAS. Exceptions may apply to certain parts of the software under open source licensing when explicitly announced by SMART SHERPAS. The Client shall be liable to SMART SHERPAS for any damage resulting directly or indirectly from any infringement of this provision.

5. Information disclosed on the STO SHERPAS Platform

SMART SHERPAS strives to maintain the accuracy of information published on smartsherpas.com. However, it cannot guarantee the accuracy, suitability, reliability, completeness, performance or fitness for purpose of the content on smartsherpas.com and will not accept any liability for any loss or damage that may arise directly or indirectly from the content. Information on smartsherpas.com can be subjected to change without notice and is provided for the primary purpose of facilitating Clients to arrive at independent decisions.

6. Client’s investment decisions

The Client is aware that, while he may be able to access Digital Assets specific research reports and selection and advisory tools via smartsherpas.com (without being limited to computerized online services), the availability of such information and tools does not constitute, neither implies a recommendation to buy or sell any of the Digital Assets mentioned therein. The Client’s investment decision shall be based solely on his own evaluation of his financial circumstances, investments objectives and risk appetite. Check the Risk Disclosures by clicking here.

The Client shall bear sole responsibility for all orders placed on the STO SHERPAS Platform in respect of accounts for which he has authorization. The data published or transmitted shall not represent an offer unless SMART SHERPAS expressly indicates the contrary. The Client undertakes not to hold SMART SHERPAS or any of its officers, directors, employees, agents, subsidiaries or affiliates liable for any trading losses or other losses caused by the Client’s investments decisions.

It is the Client’s responsibility to make qualified/informed investment decisions. The Client commits to research and accurately understand the suitability of the Digital Asset in which intends to invest on. In case the Client does not have the means to make qualified/informed investment decisions, The Client commits to seek professional advice before trading in Digital Assets.

7.Trading hours

The STO SHERPAS Platform is available around the clock, except during maintenance time and/or unavailability due to exceptional reasons, e.g. cyber-attacks.

8. Transactions

As a general rule and subject to express authorization in special cases, in order to execute orders, SMART SHERPAS shall require that the Client’s account contain purchasing power equal to or greater than the cost price of the Digital Assets prior to the trading date. The Client shall be responsible for ensuring the account contains sufficient funds. He shall bear liability for all his orders, including any which exceeds the funds available in the Client’s account. Where SMART SHERPAS receives from the same Client multiple orders with a combined total exceeding the funds available or the approved credit line, SMART SHERPAS shall be entitled to decide which orders to execute wholly or in part, regardless of the order in which they were received. If SMART SHERPAS has executed an order despite a lack of sufficient funds in the Client’s account, the Client shall be obliged to provide sufficient cover in his account without delay e.g. by depositing or transferring additional funds to the account. The Client accepts that placed orders may not be necessarily executed in case of any failure on the STO SHERPAS Platform, due to technical and security reasons and/or any failure from services providers.

9.Erroneous or delayed execution of orders

In the event of erroneous, incomplete or delayed execution of an order, SMART SHERPAS’s liability shall be limited to the interest lost unless it has been alerted to the risk of more extensive damage.

10. Erroneous transactions and erroneous entries (mis-trades)

The Client is aware and accepts that SMART SHERPAS reserves the right to declare an executed transaction invalid if, for example, authorities believe the transaction is clearly the result of an erroneous transaction or entry. If in the meantime, the Client has sold on the digital asset affected by the erroneous transaction or entry, this constitutes a short sale. The Client accepts and assumes the risk of erroneous transactions, erroneous entries and short sales. The Client is aware and agrees that short sales are not allowed and will thus automatically be covered by SMART SHERPAS without further notification, i.e. negative positions will be closed out. SMART SHERPAS expressly draws attention to the fact that digital assets to be sold by the Client must be present in the Client’s account in a long position permitting proper delivery on or before the settlement date of the respective transaction. Save where guilty of willful intent or gross negligence, SMART SHERPAS shall not be liable for any damage in connection with such a declaration from the exchange. Upon learning that assets credited to his account must in all good faith be assumed to have been credited erroneously, the Client shall be obliged to notify SMART SHERPAS immediately of the credit entry either in writing or orally.

11.Account currencies

SMART SHERPAS Accounts will be maintained in cryptocurrencies, Digital Assets value respectively.

12. Authentication and verification of identity

SMART SHERPAS undertakes to verify with all due care the identity of the Clients and their authorized agents. SMART SHERPAS shall not be obliged to take further identification measures. SMART SHERPAS shall not be held responsible for the consequences of any falsifications or identification errors that it has failed to recognize despite exercising due care.

13. Combating Money Laundering and Terrorist Financing

SMART SHERPAS shall be entitled to ask the Client to supply information regarding circumstances or background of certain transactions. Where necessary, the Client must supply such information immediately. If a Client fails to supply the information requested by SMART SHERPAS, SMART SHERPAS shall be entitled to decline the execution of the instructions received from the Client, in particular, those requiring the transfer of assets. If SMART SHERPAS deems the information supplied to be unsatisfactory or incomplete, it may at its discretion immediately terminate the business relationship with the Client or have access to the assets blocked. Furthermore, pursuant to the provisions of AML & CTF regulations and guidelines and other applicable legislation, SMART SHERPAS may notify the relevant authorities and freeze the Client´s Digital Assets and/or block and/or cancel the SMART SHERPAS Account until the authorities have reached a decision on the matter. Provided SMART SHERPAS has complied with the provisions and regulations set forth in international legislation for the prevention of money laundering enacted by the respective competent authority, it shall not be liable for losses resulting from any failure to execute Client instructions or from their faulty or delayed execution.

14. The right of lien and set-off

For the purpose of redeeming all debts and other liabilities of the Client to SMART SHERPAS, SMART SHERPAS has a right of lien on Digital Assets held or kept in storage now or in future by SMART SHERPAS in favor of any existing or future Client’s SMART SHERPAS Account, including any account in which the Client may have an interest. SMART SHERPAS shall have the right to set off against any amounts due from SMART SHERPAS all its existing claims against the Client regardless of whether such claims are due or of the currencies in which they are denominated. Upon expiration of the time limit allowed to the Client, SMART SHERPAS shall be entitled at its discretion to proceed with the compulsory realization of pledged Digital Assets or to realize them on the open market through sale or appropriation. SMART SHERPAS has a duty to provide a settlement statement and shall credit any surplus to the Client’s SMART SHERPAS Account. The Client hereby authorizes SMART SHERPAS and SMART SHERPAS shall be entitled to transfer Digital Assets held on behalf of the Client or his representative from or to any SMART SHERPAS Account held by the Client whenever SMART SHERPAS deems such transfer necessary for its own protection. The Client hereby expressly authorizes SMART SHERPAS, in the event of an interest being established in favor of a third party, to draw SMART SHERPAS’s attention to any higher-ranking interest accruing to the pledger pursuant to the SMART SHERPAS and the Client.

15. Outsourcing

SMART SHERPAS reserves the right to outsource all or part of its activities under its monitoring and its own responsibility, with respect to the applicable legal and regulatory provisions in this regard. SMART SHERPAS is thus authorized to call on the assistance of Group entities or independent companies. Where information regarding the Client is communicated to an external service provider or another Group entity, this is covered by the rules on data protection.

16. Exclusion of liability

SMART SHERPAS shall not be held liable by the Client for proven damage resulting from any action or omission, except in the event of malicious intent or gross negligence. In the event of an error made by a service provider, SMART SHERPAS shall only be responsible if it neglected its obligations of due diligence when selecting and instructing the service provider.

Storage of Digital Assets

 

17. Scope of application

As part of the Terms, this Digital Asset Storage Agreement (hereinafter “Storage Agreement”) shall apply to the Digital Assets entrusted to and accepted by the STO SHERPAS Platform. Any separate agreements or special conditions governing SMART SHERPAS Accounts shall apply in addition to this Storage Agreement. In the event of differences, this Storage Agreement shall prevail.

18. Acceptance of assets

SMART SHERPAS shall accept Digital Assets allocated to the Client´s SMART SHERPAS Account to be deposited and stored on the STO SHERPAS Platform. Fiat currencies defined as official currencies regulated by a government are only accepted to be exchanged into Digital Asset as part of the SMART SHERPAS account creation. Fiat currencies cannot be deposited and stored on the STO SHERPAS Platform.

19. Duty of diligence

SMART SHERPAS shall keep and manage the entrusted Digital Assets with due care.

20. Transfer of Digital Assets

The Client may transfer Digital Assets into its SMART SHERPAS Account at any time. Withdrawals of Digital Assets will be delivered or made available to Clients private wallets according to the necessary time for settlement of the transaction on the STO SHERPAS Platform. This includes the need for further Client authentication and verification, as well as the operational preparation of such transactions. SMART SHERPAS may require additional verifications from the Client before authorizing a withdrawal. The costs of delivery shall be borne in accordance with the fee schedule.

21. Form of storage

To ensure the secure and safe storage of Digital Assets, SMART SHERPAS manages multiple online, offline and hybrid wallets dedicated to supported cryptocurrencies and assets. Those wallets are either fully operated and controlled by SMART SHERPAS, or partially managed through a third-party service provider. This form of storage may result in the Client’s assets being pooled or placed in an omnibus account. Unless instructed otherwise, SMART SHERPAS is entitled to hold Digital Assets and cryptocurrencies with other assets of their kind, transfer them to a third party for safekeeping or hold them in the collective depository. SMART SHERPAS is in particular explicitly authorized to store Client´s Digital Assets using third-party services partially operated offline from the related blockchain. The third-party service provides secure means to maintain and administer Digital Assets traded on the STO SHERPAS Platform.

A service partially operated offline from the blockchain is a service where internal transactions may occur without being recorded on the blockchain and/or where some transactions are not possible without an additional validation/operation made offline from the blockchain. If the service is never connected to the blockchain, this leads to an offline wallet. If the service is connected to the blockchain (either only occasionally for being synchronized or for part of the transactions), this leads to a hybrid wallet.

STO SHERPAS Platform relies in particular on hybrid wallets that can automatically receive incoming transactions but for which outcoming transactions are restricted by internal security policy before being built and broadcasted to the blockchain.

22. Period of validity

The validity of the Storage Agreement is generally not subject to any specific time limit. The legal consequences established with this Storage Agreement shall not lapse with the death, incapacity or bankruptcy of the Client.

23. Statements of digital assets held

SMART SHERPAS shall issue a statement to the Client of the Digital Assets held in their SMART SHERPAS account. This notification is usually made at the end of the year. This statement may include Digital Assets other than those covered by the present provisions (e.g. options).

24. Applicable rules and provisions

All transactions for account of the Client shall be subject to the bylaws, constitution, rules, provisions, oversight, customs and usages of the exchange or market, and its clearing house, if any, on which such transactions are executed and/or cleared by SMART SHERPAS or its agents, including but not limited to SMART SHERPAS´s subsidiaries and affiliates.

Fees

 

25. Fees, remuneration and compensation

SMART SHERPAS shall credit and debit interest, commission, agreed or standard fees, and taxes due in accordance with the schedule published on its website. SMART SHERPAS reserves the right to modify its interest rates and commission at any time, particularly in the event of changes in market conditions. It shall inform the Client thereof by means of circular, publication on its website, e-mail, notification in the Client’s account, or by any other means deemed appropriate. These changes are considered to have been approved unless challenged in writing within one month. The Client acknowledges and accepts that SMART SHERPAS may be required to pay to third parties compensation, remuneration and other benefits, including retrocessions and other indirect monetary benefits (hereinafter “remunerations”) for the acquisition of clients and/or the provision of services. These remunerations are calculated in principle as a percentage of fees and commissions paid by the Client and/or based on the assets held by SMART SHERPAS. SMART SHERPAS shall inform the Client on request of remunerations affecting him. The Client also acknowledges and accepts that SMART SHERPAS receives and retains indemnities (e.g. commissions for distribution, portfolio management or acquisition), fees and other payments from third parties (including companies that are part of the same group as SMART SHERPAS) and that it may redistribute these to third parties in the course of its commercial activity and its business relationship with the Client. Where SMART SHERPAS receives remuneration which, in the absence of contractual regulation, should be passed on to the Client pursuant existing regulations, the Client formally renounces the transfer thereof and accepts that SMART SHERPAS may retain this sum as a supplementary compensation. SMART SHERPAS shall provide the Client on request additional information on remunerations concerning him. In the event of conflicts of interest based on the services indicated above, SMART SHERPAS shall ensure that the Client’s interests are protected. SMART SHERPAS is free to set the amount of compensation which it may debit directly from the Client’s account for complementary services which are not subject to a fee or service tariff but which it has provided to the Client at his request and in his presumed interest and, based on the situation, which may only be requested in return for compensation.

The Client authorizes SMART SHERPAS to debit directly from his account any fees, commissions, expenses or other costs due connected with the additional services that he has requested.

26. Additional services

The Client hereby authorizes SMART SHERPAS to debit all fees, commissions, expenses or other costs incurred in connection with services requested by him directly to his SMART SHERPAS Account.

Confidentiality

 

27. Confidentiality and renunciation of confidentiality

SMART SHERPAS is committed to adhering to confidentiality and secrecy regulations. SMART SHERPAS is aiming to observe the strictest discretion regarding business relationships with its Clients. The provided confidentiality remains valid, even after these relationships have ceased. The Client hereby releases SMART SHERPAS from its duty of confidentiality insofar as this is necessary in order to protect the Client’s and/or SMART SHERPAS’ legitimate interests, in particular:

  • in the event of supervisory or other competent authorities’ actions
  • in the event of legal action being instigated by the Client against the SMART SHERPAS;
  • to secure SMART SHERPAS’ claims or realize collateral provided by the Client or third parties;
  • for the purpose of establishing interests in favor of a third party;
  • for the purpose of collecting claims held by SMART SHERPAS against the Client;
  • in the event of accusations made by the Client against SMART SHERPAS in public or before domestic or foreign authorities;
  • for domestic or cross-border payment transactions or transactions involving foreign digital assets. SMART SHERPAS is entitled to communicate the Client’s information, such as name, address and IBAN (International Bank Account Number) or his account details, to the parties concerned (in particular, the correspondence banks of SMART SHERPAS, to operators of payment transaction systems, SWIFT (Society for Worldwide Interbank Financial Telecommunication) and to beneficiaries. By giving a payment order or acquiring an investment, the Client formally authorizes SMART SHERPAS to communicate his client data and to pass on information;
  • National and cross-border transactions as part of corporate actions, as well as transactions executed by SIC/SWIFT. SMART SHERPAS is entitled to communicate to the banks, central depositories and US, EU and other foreign system operators concerned the name, address, IBAN, account number or custody account number of the final beneficiary account holder, the registered shareholder or other parties involved in the transaction;
  • In the event of investments made abroad, SMART SHERPAS is entitled, in accordance with the legislation of the country concerned, to communicate on request in particular the surname and the first name of the order originator or depositor of the digital assets as well as other client details (in particular regarding the beneficial owner) to the responsible authorities to third-party custodians or to suppliers of products.

SMART SHERPAS is explicitly authorized to disclose confidential information to fulfill its legal, administrative and/or statutory duties of disclosure.

Various

 

28. Confirmations and/or Notifications

All notifications from SMART SHERPAS may, at its own discretion, be sent by e-mail or any other mode of communication deemed appropriate by SMART SHERPAS, and in particular by means of messages left in the inbox of the Client’s SMART SHERPAS Account. Notifications shall be deemed duly delivered as soon as they have been sent to the most recent address supplied by the Client to SMART SHERPAS or left in the SMART SHERPAS Account inbox. The Client shall bear all risk of delay, loss or falsification of the notifications sent to him. Clients are fully responsible for acknowledging the content and consequences of the notifications, as well as take the necessary actions where required. The Clients, at their own discretion, will have the option to enable or disable all or some notifications.

29. Monitoring and recording of the communication

The Client explicitly authorizes SMART SHERPAS to record and store, without further prior notice, telephone conversations and other communications, particularly electronic communications, in a manner which SMART SHERPAS at its discretion deems appropriate, and to monitor the Client’s electronic communications with SMART SHERPAS. In the event of disputes, SMART SHERPAS reserves the right to make use of such recordings as a means of evidence.

30. Hardware/Software and access to SMART SHERPAS website

The Client shall assume responsibility for technical access to SMART SHERPAS’ services. The Client shall be responsible for acquiring, installing and configuring hardware and software appropriate to establish a connection to the STO SHERPAS Platform (computer, modem, bowser, etc.), as well as contracting Internet service provider. Consequently, SMART SHERPAS shall not assume any responsibility for the Internet service provider or for any software and hardware failure. Save where guilty or gross negligence or willful intent, SMART SHERPAS shall not be liable for any damage resulting from the Client’s failure to perform his contractual obligations due to lack of Internet access and/or any hardware or software deficiency towards SMART SHERPAS or in connection with trading and exchanging operations. SMART SHERPAS is not liable for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect the Client´s computer or other equipment, or any phishing, spoofing or other attacks. SMART SHERPAS advises the regular use of a reputable and readily available virus screening and prevention software. The Client should be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from us. SMART SHERPAS client support will never ask to screen share or otherwise seek to access Client´s computer or account; similarly, SMART SHERPAS will not ask for the two actor authentication codes. The Client should always log into his SMART SHERPAS Account through smartsherpas.com to review any transactions or required actions in case of any uncertainty regarding the authenticity of any communication

31. Reservation of legal requirements

All existing or future statutory provisions, administrative regulations and other applicable regulatory requirements in the field of the provided services, data protection, money laundering and the operation and use of the Internet and any other provision or regulation governing the services offered by SMART SHERPAS are reserved and shall apply to the provision of SMART SHERPAS’s services as of their entry into force.

32. Client support

Any complaint by the Client concerning the execution or non-execution of any order, and any objections concerning a SMART SHERPAS Account statement or any other notifications from SMART SHERPAS must be made immediately upon receiving the corresponding notification, but not later than one month after receipt (discuss potential inconsistency with notifications item). After this period, the execution or non-execution or, as applicable, the statement or notification concerned shall be deemed to have been approved. Where the Client has received no notification, he must make the complaint as if such notification had been duly received. The Client shall bear the consequences of any delay in making the complaint. Express or tacit acknowledgment of an account or custody account statement shall be deemed to constitute approval of all the items it includes and of any reservation made by SMART SHERPAS.

33. Saturday treated as a public holiday

In all relations with SMART SHERPAS, Saturday is treated as an official public holiday.

34. Dormant assets

The Client undertakes to take all appropriate measures to prevent assets deposited with SMART SHERPAS from becoming dormant (also known as unclaimed assets). The Client undertakes to maintain regular contact with SMART SHERPAS and, in particular, to notify SMART SHERPAS immediately of any change of domicile (including fiscal), address for correspondence, e-mail address, name, telephone number or any other details or element of his identity and/or situation which may result in contact between SMART SHERPAS and the Client being interrupted, and to take any steps necessary to allow contact to be re-established in that event. The Client must notify SMART SHERPAS of any change by entering (if possible) the new details in his user profile via the STO SHERPAS Platform. The Client authorizes SMART SHERPAS to take all appropriate or necessary steps to locate him or his beneficiaries once it notes that communications addressed to the Client are not reaching him or should there be no contact with the Client within a specific period, which SMART SHERPAS will stipulate at its sole discretion. If such research proves unsuccessful and the assets are deemed to be dormant within the meaning of the provisions applicable, the Client recognizes that SMART SHERPAS is obliged to notify a central claims office of the existence of the account relationship. SMART SHERPAS shall charge the expenses incurred for such research as well as the individual handling and monitoring of the dormant assets to the Client. The fees and taxes generally debited by SMART SHERPAS apply for as long as the relationship exists. SMART SHERPAS shall protect the Client’s rights when assets become dormant. SMART SHERPAS is authorized to take action that diverges from the current Terms if it is in the Client’s assumed interest.

35.Amendment of these Terms

SMART SHERPAS shall be entitled to amend the provisions of this Agreement and the services offered unilaterally at any time. Such amendment shall be notified to the Client in an appropriate manner and shall be deemed accepted unless the Client submits a written objection within one month of the date on which the amendment was notified. Should any provision of the present Conditions and Regulations be or become invalid or partially ineffective, the other provisions shall not be affected, and the Parties shall use their best efforts to reach agreement or have the invalid provision replaced by a valid arrangement coming as close as possible to the purpose of the invalid provision and to the intention of the parties affected by this provision.

The Client accepts the Terms and all legal information published on www.smartsherpas.com

Access to and use of the SMART SHERPAS Account and the STO SHERPAS Platform services shall be subject to the client’s compliance with all provisions set forth in the Terms.