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Introduction
Under this Bitstamp Custody Terms (the “Custody Terms”) Bitstamp Europe S.A. (“Bitstamp” or “we” or “our”) provides Custody Services of Virtual Assets and Digital Assets that you, registered customer of Finary SAS (“you” or “your”) purchased via Finary SAS (“Finary”).
Acceptance of the Custody Terms
By using our Custody Services, you agree to accept and comply with the Custody Terms. You should read the entire Custody Terms carefully before using custody services.
IF YOU DO NOT ACCEPT BITSTAMP CUSTODY TERMS OUTLINED BELOW, YOU MAY NOT ACCESS CUSTODY SERVICES.
These Custody Terms were last updated on July 3, 2023. We reserve the right to change, add or remove parts of these Custody Terms at any time and at our sole discretion. You will be notified of any changes in advance by Bitstamp notifying Finary about those changes, and Finary therefrom notifying you. Upon such notification, it is your responsibility to review the amended Custody Terms. Your continued use of our Custody Services signifies that you accept and agree to the changes, and that all subsequent transactions by you will be subject to the amended Custody Terms.
About Bitstamp and the Custody Service
Bitstamp is a payment institution authorised and regulated by the Luxembourg financial regulator, the Commission de Surveillance du Secteur Financier (hereafter “CSSF”) and a virtual asset service provider, registered in Luxembourg with CSSF for AML/CFT supervision. Bitstamp is, among others, registered as virtual asset service provider also in France with Autorité des Marchés Financiers (AMF).
Bitstamp is entered into Luxembourg Trade and Companies Register under the number B196856, VAT number LU 27823117, with its registered address at 40, avenue Monterey, L-2163 Luxembourg, Grand Duchy of Luxembourg.
Under this Custody Terms, Bitstamp provides the following service to you:
The Custody Service is registered with CSSF for AML/CFT supervision in accordance with the Law of 12 November 2004 on the fight against money laundering and terrorist financing, as amended.
For the avoidance of doubt, we do not provide any investment advice in connection with the Custody Service described in these Custody Terms. We may provide information on the price, range and volatility of Virtual Assets and other Digital Assets that are available on Site and events that have affected the price of such Virtual Assets and Digital Assets, but this must not be considered investment advice, nor should it be construed as such. Any decision to purchase or sell Virtual Assets and other Digital Assets is solely your decision and we shall not be liable for any loss suffered.
Our Relationship
By accepting these Custody Terms, you appoint Bitstamp to provide Custody Services and Bitstamp is willing to perform such services either directly or through any appointed sub-custodians selected by Bitstamp.
The provider of account platform through which you make transactions of Virtual or Digital Assets that are subject to Custody Services under these Custody Terms, is Finary SAS, registered as a Digital Asset Service Provider (DASP) by the Autorité des Marchés Financiers (AMF), the French regulator, with head office at 95 avenue du Président Wilson, 93100 Montreuil, France, registered with Bobigny Trade and Companies Register under number 892 357 724, VAT number FR60892357724.
Finary acts as your agent (meaning that Finary has legal authority to act on your behalf within the scope of the authority given by you to the Finary in the Finary Terms) in respect of Custody Services provided to you by Bitstamp under these Custody Terms. Bitstamp and you are hereinafter referred separately each as a “Party” and together as the “Parties”. Finary is not a party to these Custody Terms.
Before You Start Using Custody Service
Representation & Warranties
By accepting these Custody Terms, you expressly represent and warrant:
Our Custody Services are provided without a warranty of any kind, either express or implied, and, in particular, without implied warranties of merchantability and fitness for a particular purpose.
How We Verify Your Information
In order to comply with certain applicable laws against money laundering and funding of terrorism (“AML/CFT”), we need to obtain, verify, and record certain information that identifies each person or entity that uses Custody Services (“KYC Information”).
You hereby represent and warrant that you have authorized Finary to provide us any and all KYC Information that may be required by us pursuant to applicable laws and regulations, and that all such KYC Information provided to us by Finary on your behalf pursuant to these Custody Terms or otherwise is true, accurate and not misleading in any respect. If any such information changes, it is your obligation to update such information as soon as possible.
You acknowledge that in order for us to be able to provide the Custody Services to you as described herein, we may be required to obtain additional information from you (i) before we start offering custody services to you or (ii) at any time while you are using Custody Services. All information and data collection and transfer of such information and data to Bitstamp is carried out by Finary, for which you represent and warrant that you have authorized Bitstamp to carry out on your behalf.
The requested information may include Personal Data (please refer to our Privacy Policy).
Jurisdictional Limitations
Our Custody Services are not available in jurisdictions which we determine we would not be able to or choose not to offer Custody Services. Due to the dynamic nature of regulatory requirements and interpretations in the cryptocurrency market, we reserve the right to update the list of prohibited jurisdictions and reject persons/entities that we determine we would be unable to accept for regulatory or policy reasons in our sole and absolute discretion.
Keep your Virtual and Digital Assets Safe
In relation to the custody of your Virtual Assets or other Digital Assets, we are acting as custodian of your Virtual Assets or other Digital Assets. Under this service, we are your contractual counterparty for Custody Services, and we owe you duties in relation to the safekeeping and custody of your Virtual Assets or other Digital Assets, albeit you accept to solely bear the risks affecting our sub-custodians or the Virtual Assets or other Digital Assets held with them.
Where Finary (as your agent) instruct us to arrange for any Virtual Assets or other Digital Assets owned by you to be held by us, until we receive further instruction from Finary (as your agent) to move any Virtual Assets or other Digital Assets owned by you out of our custody, we will provide you with Custody Services. You acknowledge that Finary has agreed with Bitstamp certain arrangements regarding the identity of Authorized Persons and their activities and does so on behalf of you. Bitstamp shall bear no responsibility for any transactions, or resultant losses or damages to you caused by any acts or omissions of Authorized Persons.
You expressly agree and accept that we may appoint sub-custodians to hold your Virtual Assets or other Digital Assets. Whilst we act with reasonable care in selecting such sub-custodians, a list of which is available here, we do not accept any liability towards you in case of any event affecting Virtual Assets or other Digital Assets at the level of the sub-custodians and/or in case of their inability to satisfy any of their obligations, whether such events or inability is due to force majeure or not. You accept to solely bear the risks of any such events and/or such inability. You accept that your Virtual Assets or other Digital Assets will be held in omnibus accounts held by us with sub-custodians. If for any reason it is possible to retrieve only part of the Virtual Assets or other Digital Assets held in the omnibus account, you accept to share the loss proportionately to your share in the Virtual Assets or other Digital Assets held in the omnibus account.
Given the specific nature of Virtual Assets or other Digital Assets, the custody of such assets consists of storing and keeping confidential private keys in respect of such Virtual Assets or other Digital Assets. We do not, and you agree that we do not, have or acquire any rights, title or interest in any Virtual Assets or other Digital Assets that are held on your behalf by the sub-custodian(s).
In order to satisfy our duty of restitution as custodian in relation to Virtual Assets or other Digital Assets, it is sufficient for us to either, amongst others:
We may at our sole discretion select the way in which we satisfy our duty of restitution.
Standard of Care & Performance Exemptions
Bitstamp will use its best efforts in fulfilling its obligations under these Custody Terms.
Notwithstanding anything to the contrary in these Custody Terms, Bitstamp shall not be responsible to you for failure or inability to perform under these Custody Terms or for any loss of Virtual Assets or other Digital Assets custodied by Bitstamp or appointed sub-custodians to the extent Bitstamp did not, through its negligence, cause or contribute to such loss and such failure, inability or loss is attributable to:
Prohibited Activities
You agree not to use the Custody Services to perform criminal activity of any sort, including but not limited to, money laundering, illegal gambling operations, terrorist financing, malicious hacking or any criminal or illegal activity.
You shall not engage in any activity which may be deemed by Bitstamp its sole discretion to be potentially harmful to the reputation or business or Bitstamp or its Affiliates.
Fees
You will not be charged any fee for the Custody Services directly by Bitstamp.
This does not prejudice the fact that the Custody Services are provided by us for you, and Finary’s role in respect of Custody Services is limited to acting as your agent.
Term & Termination
Customer acknowledges that the Custody Terms apply until Custody Services are performed by Bitstamp, namely until Finary’s agreement with Bitstamp terminates or expires or when Customer ceases to use Finary as trading platform.
Bitstamp may close or suspend your use of Custody Services in appropriate circumstances and at our discretion, for any reason, including without limitation:
Risks
Bitstamp is not acting under these Custody Terms as investment adviser or any other kind of advisor to you and/or Finary, and responsibility for the selection, acquisition and disposal of the Virtual Assets or other Digital Assets remains with you at all times.
Make sure you are sufficiently knowledgeable about the crypto market, Virtual Asset and Digital Asset trading and our Custody Service, and you are able to make informed decisions based on timely and accurate information.
We engage with third-party custody providers in order to hold Virtual Assets and Digital Assets on your behalf as sub-custodians of Bitstamp. Your Virtual Assets and Digital Assets will be held on your behalf in a wallet in the name of Bitstamp together with other Bitstamp’s clients’ Virtual Assets and/or Digital Assets. They may also from time to time be held in the wallet together with Bitstamp’s Virtual Assets and/or Digital Assets which reflect Bitstamp’s fees, but which are recorded on Bitstamp’s ledger as belonging to Bitstamp. We will maintain detailed records of all Virtual Assets and Digital Assets which clients hold with sub-custodians appointed by us.
As set out above, we will act only on the instructions of Finary (as your agent) in respect of Virtual Assets and Digital Assets, and do not otherwise acquire any right, title or interest in them. Whilst Bitstamp uses reasonable care in the appointment of sub-custodians, in the event of a third-party custodian becoming insolvent or entering into an insolvency process in a relevant jurisdiction, you or we may have only an unsecured claim against the sub-custodian, your Virtual Assets or Digital Assets may be at risk subject to any protections provided at law in the relevant jurisdiction. The same risks exist in case the sub-custodian is for any other reason not able to meet its obligations towards you or us.
Our Approach to Forks or Airdrops in Virtual Assets
We have no control over the software protocols which govern or constitute the framework of virtual currencies. Therefore, we assume no responsibility for the update or any modification of the underlying protocols, and we are not able to guarantee their functionality, security, or availability.
By accepting the present Custody Terms, you acknowledge and accept the risk that underlying software protocols relating to any of the virtual currencies available on the platform are likely to be subject to sudden changes in operating rules (“Fork”) or distribution of Virtual Asset event (“Airdrops”), and such Forks or Airdrops may materially affect the value, function and/or the name of the virtual currencies that are custodied with Bitstamp.
You understand that neither custodian nor sub-custodian is under any obligation to support any Forks or Airdrops or handle them in any manner.
Bitstamp will use reasonable endeavours to provide notice of Forks or Airdrops by publishing such a notice on Site, including, to the extent possible, whether Bitstamp intends to support airdrops, either or both branches of a Fork, and it is your responsibility to read such notices in order to make a decision in that respect. However, we have no obligations to support any specific Forks, Airdrops, or similar distribution events.
It is your responsibility to make yourself aware of, and consider how to deal with, upcoming Forks or Airdrops. In the event of a Fork or Airdrops, there is a risk that we may need to temporarily suspend operations in relation to that Fork or Airdrops without providing advance notice to you. We may, in our reasonable discretion, decline to support either or both branches of a Fork or Airdrops.
You acknowledge that sub-custodian may operate Fork or Airdrops policies and, under their terms, may not be obliged (or able) to support all or any Forks or Airdrops. Notwithstanding that a sub-custodian may support a particular Fork or Airdrop; this will not oblige Bitstamp to support that Airdrop or Fork.
In the event of a Fork or an Airdrop which affects Virtual Assets or other Digital Assets pursuant to these Custody Terms, and which is unsupported by Bitstamp:
By agreeing to the present Custody Terms, you acknowledge the risks presented by Forks and Airdrops and you accept that we have no responsibility to assist you to move Virtual Assets of an unsupported branch of a forked protocol or airdropped protocol.
Collection and Use of Your Data
Privacy is very important to us. Full details of our Privacy Policy can be found at Privacy Policy. We recommend reading the Privacy Policy carefully so that you know the data we collect, how we use it and who we share it with.
We may disclose information to third parties about you or related to your Virtual Assets or Digital Assets custodied with us, among others, for the following purposes: (i) where it is necessary for performing the Custody Service to you; (ii) in accordance with these Custody Terms; (iii) if you give us your written permission; (iv) in order to comply with competent authorities; and (v) if so required under applicable laws and regulations.
Limitation of Liability
We are not liable to you for claims, costs, losses, or damages caused by an event that is beyond our reasonable control. To the extent permitted by law, Bitstamp will not be held liable for any damages, loss of profit, loss of revenue, loss of business, loss of opportunity, loss of data, indirect or consequential loss unless the loss suffered arose from gross negligence, wilful deceit or fraud. Nothing in these terms excludes or limits the liability of either Party for fraud, death or personal injury caused by its gross negligence, breach of terms implied by operation of law or any other liability which may not be limited or excluded by law.
Indemnity
To the full extent permitted by applicable law, you hereby agree to indemnify Bitstamp and its partners against any action, liability, cost, claim, loss, damage, proceeding, or expense suffered or incurred if directly or indirectly arising from your use Custody Services or from your violation of these Custody Terms.
Taxes
It is your responsibility to determine whether, and to what extent, any taxes apply to any actions you conduct for using Custody Service, and to withhold, collect, report, and remit the correct amounts of taxes to the appropriate tax authorities.
You duly undertake to be solely responsible for declaration of any inflow and outflow of crypto assets for the purpose of your domestic tax returns and any related declarations.
You assume full responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through Bitstamp, to withhold, collect, report, and remit the correct amounts of taxes to the appropriate tax authorities and release Bitstamp from any liability in the event of non-compliance with these provisions. Bitstamp waives any responsibility arising from your failure to meet its responsibilities hereunder.
Legal/Regulatory Process Affecting Your Virtual Assets or other Digital Assets
If legal action such as an attachment, garnishment, seizure, liquidation, levy, or other legal process (“Legal Process”) is brought against you affecting your Virtual Assets or other Digital Assets custodied with us, we may refuse to permit (or may limit) withdrawals or transfers of such Virtual Assets or other Digital Assets until the legal process is satisfied or dismissed.
We may also be required to transfer, freeze, seize or perform any other actions on your Virtual Assets or other Digital Assets custodied with us if mandated by the competent authority, required under applicable laws and regulations or in accordance with Bitstamp’s internal policies and procedures (“Regulatory Process”).
We will not contest on your behalf any such Legal/Regulatory Process and may take action to comply with such Legal/Regulatory Process as we determine to be appropriate in the circumstances without liability to you. If we incur any expenses, including without limitation, reasonable attorney’s fees, in connection with any such Legal/Regulatory Process, we may charge any expenses and fees to your Virtual Assets or other Digital Assets custodied with us without prior notice to you. Any garnishment, seizure, liquidation, or other levy against your Virtual Assets or other Digital Assets custodied with us is subject to our right of setoff and security interest.
Governing Law and Jurisdiction
The Custody Terms shall be governed and construed in accordance with the law of Luxembourg. The parties hereto agree to irrevocably submit to the exclusive jurisdiction of the court of Luxembourg.
Communication
In case you have any question, complaint or other request with regards to these Custody Terms, Custody Services, Bitstamp, or any other matter you can contact Finary at [email protected].
In case you reach out to us directly, we have a right to redirect you to Finary.
Definitions
Affiliate. An entity which is directly or indirectly owned or controlled or under common control by or with Bitstamp.
Authorized Person. An employee or officer of Finary who has been designated by Finary as an authorized person to access and use the Account, including to send digital currency for deposit into the Account and withdraw digital currency from such Account under these Custody Terms. Such persons will continue to be Authorized Persons until Bitstamp receives Instruction (as defined below) from Finary that any such person is no longer an Authorized Person.
Digital Asset(s). Digitalised right to use in a binary format.
Finary Terms. Terms of use that Finary has in place with you from time to time.
Instruction. An instruction from Finary (as agent for Customer) that has been given by Authorized Peron or which Bitstamp believes in good faith to have been given by an Authorized Person.
Personal Data. Information that identifies an individual, such as name, address, email address, trading information and banking details. “Personal Data” does not include anonymised and/or aggregated data that does not identify a specific user.
Virtual Asset(s). Digital representation of value that can be digitally traded, or transferred, and can be used for payment or investment purposes. Virtual Assets such as cryptocurrencies are a form of Virtual Asset designed to work as a medium of exchange that uses strong cryptography to secure financial transactions, control the creation of additional units and verify the transfer of assets. Virtual Assets use decentralised control as opposed to centralised digital currencies and central banking systems.
