Koinexpert Terms and Conditions

02 March 2021

1. Summary Guide

This table summarises the key features of the KOINEXPERT product, so that you can use this as a guide when reading the legal terms and conditions. This table is not a legal agreement. For a proper understanding, you must read all of the terms and conditions set out in the Agreement.

Parties You and KOINEXPERT will enter into an agreement which will allow you to take advantage of arbitrage opportunities within the Crypto Asset industry
What Is Crypto Asset Arbitrage? Crypto Asset arbitrage is a type of trading that exploits differences in prices to make a profit. These price differences commonly referred to as “arbitrage spreads”, can be used to buy a cryptocurrency at a lower price and then sell it at a higher price
Regulations Crypto assets is currently an unregulated activity in South Africa. This means that you don’t have the protection of legislation when investing
Arbitrage Trading Use Case
Use of licensed Authorised Dealers (AD) KOINEXPERT will facilitate, subject to certain volume and other limits, your Crypto Asset Arbitrage opportunity to the Authorised Dealer or its nominated juristic representative upon instruction
Trading Risks
Profits and Losses
  • Our service represents a speculative investment and involves a high degree of risk
  • An investment in our service should be discretionary capital set aside strictly for speculative purposes
  • Investors could lose all or a substantial portion of their investment. Investors must have the financial ability, sophistication, experience and willingness to bear the risk of an investment in any of our services

2. Introduction

2.1
This client agreement (“Agreement”) sets out the terms and conditions between you (being an individual or a Corporate Body acting through its Authorised Users) (“you” or the “Client”) and KOINEXPERT ARBITRAGE SERVICES (PTY) LTD to receive services from us primarily through your investment in Crypto Assets.
2.2
There are clauses in this Agreement that require your careful consideration. (To assist you, those terms which may limit any of your rights, or which provide for specific acknowledgements or warranties required by/ from you, are in bold font. You acknowledge that you have read and appreciated the importance of the terms and clauses in bold font.
2.3
You must ensure that you understand this agreement and the nature of our service before you begin to use our services.

3. Definitions

3.1
“Agreement” as defined in clause 2.1
3.2
“Authorised Dealer” any authorised dealer in foreign exchange duly authorised in terms of Exchange Control, appointed by Koinexpert from time to time to approve your Currency Transfer Requests
3.3
“Crypto Asset Provider” means an issuer and manager (if applicable) of crypto assets.
3.4
“Digital Token” means the digital representation using cryptography, in the form of a crypto asset token, of your investment interest in a single crypto or non-crypto asset or basket of crypto or non-crypto assets underlying the token which token is minted an issued by a Crypto Asset Provider in accordance with its rules and as may be confirmed for arbitrage trading via our services from time to time.
3.5
“KoinExpert”, Koinexpert Arbitrage Services (Pty) Ltd , a private company duly incorporated in the Republic of South Africa.

4. Links to Third Party Sites

4.1
The KOINEXPERT website may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of KOINEXPERT and KOINEXPERT is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. KOINEXPERT is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by KOINEXPERT of the site or any association with its operators.

5. Warranties and Undertakings

5.1
Each time you make use of our services, you represent and warrant to us that as the Client:
5.1.1
you enter into the Agreement with us as principal, in your own name, on your own behalf only for yourself and not on behalf of a third party as that party’s agent or representative;
5.1.2
you are fully authorised and legally entitled to enter the Agreement with us and to perform your obligations under the Agreement;
5.1.3
you are of legal age in the country in which you reside and have contractual capacity to enter into and perform your obligations under this Agreement;
5.1.4
you will use the services offered in this Agreement, in good faith and will not perform any act, whether intentionally or negligently, to defraud or cause any direct of indirect loss, harm or damage to KOINEXPERT;
5.1.5
if you are not resident in the Common Monetary Area for the purposes of Exchange Control:
5.1.5 (a)
you have obtained any necessary exchange control approvals which may be required to engage with our services;
5.1.5 (b)
you alone are responsible for confirming whether it is lawful under Applicable Laws in the country of your residence.
5.1.6
all information given by you in connection with the KOINEXPERT services provided in terms of this Agreement is true and correct, and KOINEXPERT may rely on the truthfulness and correctness of that information.

6. Liability

6.1
You agree that we shall not be liable for any consequential, indirect, incidental or special loss that result from your use of the Services, even if you have advised us of the possibility of such loss. Consequential loss includes pure economic loss, loss of profit, loss of business and likely loss whether direct or indirect.
6.2
You agree to indemnify us against any loss, liability, cost, claim, action, demand or expense incurred or made against us in connection with the proper performance of your obligations under this Agreement except where that loss, liability, cost, claim, action, demand or expense arises from our negligence, fraud or willful default or that of our employees.
6.3
Our failure to seek redress for violations, or to insist upon strict performance, of any condition or provision of this Agreement or our failure to exercise any right or remedy to which we are entitled under this Agreement, shall not constitute an implied waiver thereof.

7. Severability

7.1
Should any part of this Agreement be held by any court of competent jurisdiction to be unenforceable or illegal or contravene any rule, that part will be deemed to have been excluded from this Agreement from the beginning and this Agreement will be interpreted and enforced as though the provision had never been included and the legality or enforceability of the remaining provisions of the Customer Agreement or the legality, validity or enforceability of this provision in accordance with the law and/ or regulation of any other jurisdiction, shall not be affected.

8. Security and Confidentiality of the Koinexpert Service

8.1
Only authorised persons may use the KOINEXPERT bundle of services. KOINEXPERT may view, monitor, and record activity on our Websites without notice to or permission from you.
8.2
You acknowledge that by using our services that you will be providing us with personal data, which may be protected by data protection legislation, including amongst others, the Protection of Personal Information Act 2013 (“POPI”). You authorise us to:
  1. Process all such personal data;
  2. Transmit any such personal data to any Affiliate for the purpose of performing the Agreement and in furtherance of our legitimate interests including statistical analysis, marketing of our services and credit control;
  3. Transmit any such personal data to any Affiliate for the purpose of marketing our services and products and the services and products of any of our Affiliates.

9. Intellectual Property Rights

9.1
You acknowledge and agree that the copyrights, trademarks, service marks and all other intellectual property or other rights to any information distributed to or received by you whether sent by us or on our behalf, by any means (including but not limited to by Internet electronic communication or mobile phone), together with any advertising media, Website or other material connected to our services that contain or constitute the information, will remain our sole and exclusive property.
9.2
You will not permit or facilitate, and will take steps to prevent any sale, re-distribution, dissemination, re-publication or re-display of the information referred to in this clause, however received, to any third party.

10. Engaging In Arbitrage Trading

10.1
If as a result of problems with our services our computer records differ with your records or what you remember of your trade activity, the version of events recorded by our computer will apply and our obligations to each (including the obligation to pay any money) will be calculated on the basis that our computer records are correct.
10.2
We strongly recommend that you keep your own records of your instructions to us including details of the times, dates, and nature of your instructions. These details may be important if there is a dispute.

11. Indemnity

11.1
You agree to defend and indemnify KOINEXPERT, KOINEXPERT Nominees and all Affiliates, and hold them harmless from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including attorneys’ fees and litigation expenses), relating to or arising from any breach by you of this Agreement and any Applicable Law.

12. Assignment

12.1
The Agreement will operate for the benefit of you and KOINEXPERT. The Agreement is binding on you, us and our respective successors. You may not transfer (assign) any of your rights or obligations under this Agreement to any third party, unless a director of KOINEXPERT has agreed to the transfer in writing.
12.2
KOINEXPERT may, without your approval, transfer (assign) any part of its rights or obligations under the Agreement to any third party as of a date and on such terms notified to you in terms of the Agreement.

13. Duration

13.1
The Agreement shall commence on the date on which KOINEXPERT notifies you that you have been accepted as a client. The Agreement shall endure indefinitely until such time as it is terminated.
13.2
KOINEXPERT shall be entitled to payment of the Fees in accordance with the Fee Schedule.

14. Taxes

14.1
You will be responsible for all taxes, levies, value-added tax and duties payable in respect of the Trades and KOINEXPERT bears no responsibility in this regard.

15. Breach and Termination

15.1
Any Party may demand that a dispute be determined in terms of this clause 28 by written notice given to the other Parties in accordance with the Expedited Rules of the Arbitration Foundation of Southern Africa (“AFSA”).
15.2
This clause shall not prevent any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction, pending the decision of an arbitrator.
15.3
The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules of AFSA should either Party, by written notice, require the arbitration to be held on an urgent basis. In such event either Party may apply to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.
15.4
The arbitration shall be held –
15.4.1
at Cape Town;
15.4.2
with only the legal and other representatives of the Parties to the dispute present thereat; and 16.4.3 otherwise in terms of the Arbitration Act, No. 42 of 1965 (“Arbitration Act”), unless otherwise provided for herein.
15.5
The arbitrator shall be a practising advocate of the Cape Bar of at least ten years’ standing, appointed by agreement between the parties to the dispute, subject to clause 28.6.
15.6
Should the Parties fail to agree on an arbitrator within 14 (fourteen) days after the giving of notice in terms of clause 28.1, the arbitrator shall be appointed by the Chairperson of the Cape Bar Council (or by AFSA if the Cape Bar Council no longer exists), at the request of either Party to the dispute.
15.7
The Parties hereby consent to the jurisdiction of the High Court of South Africa in respect of the proceedings referred to in clause 28.8.
15.8
The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court referred to in clause 28.7, at the instance of any of the parties to the dispute.
15.9
The Parties agree to keep the arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
15.10
It is recorded that it is the intention of the Parties, that any dispute referred to arbitration in terms of clause 16.1 shall be resolved strictly in accordance with the provisions of this clause16. The Parties accordingly agree and undertake as follows –
15.10.1
that it shall not make any application to Court as contemplated in terms of section 3(2) of the Arbitration Act;
15.10.2
that it shall not make any application to court as contemplated in terms of section 20(1); and 16.10.3 the periods set out in section 23 of the Arbitration Act shall not be applicable to any arbitration proceedings arising out of the Trade Agreement.

16. Termination of Agreement

16.1
The Agreement may be terminated by the Client on not less than 5 (five) Business Days Written notice to KOINEXPERT, provided that the Client has duly perform under the terms of this agreement.

17. Force Majeure

17.1
In this clause 17 “Force Majeure” means an event of fire, lightning, explosion, flood, hurricane, act of God, power outages, war, terrorism, civil disorder, epidemics, plagues, strikes; boycotts, and lock-outs of all kinds and go-slows, excluding boycotts, strikes, lock-outs and go-slows by or of the relevant Party’s own personnel, which were outside of the control of the relevant Party or any other event beyond the control of the Party affected by the event, provided in all cases that the relevant Party has taken all steps and precautions which could reasonably be expected for it to have taken in order to prevent such act or event occurring and in order to mitigate and minimise the effects of the event and furthermore that the relevant Party is not at fault.
17.2
The Party affected by a Force Majeure (“the Affected Party”) will not be liable to the other Party for any default or delay in the performance of its obligations under the Trade Agreement if and to the extent that such default or delay is caused by Force Majeure provided however, that the Affected Party is without fault in causing such default or delay, and such default or delay could not have been prevented by the Affected Party through the use of alternative sources, workaround plans or other means.
17.3
The Affected Party shall notify the other Party as soon as reasonably possible of the occurrence or existence of a Force Majeure event or circumstance.
17.4
If KOINEXPERT is the Affected Party it may take reasonable steps that it considered necessary to address the Force Majeure, including but not limited to –
17.4.1
changing or restricting any hours within which the Client may issue Instructions;
17.4.2
terminating, closing out or not rolling over any Trade or cancelling any Instructions; or
17.4.3
taking any action which, it deems to be appropriate in the circumstances having regard to its business and its clients generally.

18. Amendments

18.1
KOINEXPERT shall be entitled to amend, add, supplement or replace the Agreement, at its sole discretion. KOINEXPERT shall notify the Client of any such amendment, addition or supplementation or replacement (“Amendment”) by –
18.1.1
posting a notice of the Amendment on the Website and updating the documents on the Website to reflect the Amendment; or
18.1.2
sending a Written notice of the Amendment to the Client.
18.1.3
The Amendment shall be effective on the date on which KOINEXPERT notifies the Client of the Amendment in terms of clause 19.1 or on such later date as set out in the notice of the Amendment. 19.3 All Amendments of which the Client has been notified in terms of this clause 19 shall be binding on the Client.

19. Use of Communication Services

19.1
The KOINEXPERT Website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
  • Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
  • Publish post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
  • Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
  • Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
  • Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
  • Conduct or forward surveys, contests, pyramid schemes or chain letters.
  • Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
  • Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
  • Restrict or inhibit any other user from using and enjoying the Communication Services.
  • Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
  • Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
  • Violate any applicable laws or regulations. KOINEXPERT has no obligation to monitor the Communication Services. However, KOINEXPERT reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. KOINEXPERT reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
19.2
KOINEXPERT reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in KOINEXPERT sole discretion.

20. Termination

20.1
KOINEXPERT reserves the right, in its sole discretion, to terminate your access to the KOINEXPERT website and the related services or any portion thereof at any time, without notice.

21. Interception and Monitoring

21.1
You agree that your communications on this Website may be intercepted, as defined in the Regulation of Interception of Communications Act 70 of 2002 (as amended), by the Owner or any other competent authority.

22. General

22.1
The Trade Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and save as may be expressly set out herein, no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
22.2
No indulgence, leniency or extension of time which any Party may give or allow to the other Party in respect of the performance of any obligation hereunder, shall in any way prejudice the Party giving or allowing the indulgence, leniency or extension or preclude such Party from exercising any of its rights an enforcing the obligations of the other Party in terms of the Trade Agreement.
22.3
No addition to, alteration, cancellation, variation or novation of the Trade Agreement and no waiver of any right arising from the Trade Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives by hand in manuscript. It is expressly recorded that the provisions of the Electronic Communications and Trades Act No. 25 of 2002 shall not apply to the provisions of this clause.
22.4
The person submitting the Application on behalf of the Client as a representative of a juristic person warrants his authority to do so.