and Conditions of Use
- Access to a Sherpany account
- Access to a Sherpany account at www.sherpany.com (formerly: shareholder account) is permitted only to persons who have verified their identity by submitting all required means of authentication, i.e. by entering
– his/her user ID: the most recently registered e-mail address used by the Shareholder or, in the case of initial access, the provided Shareholder number,
– his/her personal password, which may be freely chosen respecting the security parameters (combination of numbers and/or letters and/or special characters), or, in the case of initial access, the provided password (valid once) and
– any other means of authentication offered and/or required by Sherpany Ltd. (hereinafter referred to as the “Vendor”), in particular the account opening form.
The Vendor may supplement, modify, or replace the means of authentication at any time. The Shareholder may replace and/or change the means of authentication offered by and/or accepted from the Vendor at any time.
- Power of representation and forwarding of voting instructions
- The Vendor implements the Shareholders appointment of a Voting Proxy selected in good time by the Shareholder at www.sherpany.com by issuing a power of representation to the respective Voting Proxy in the name of the Shareholder. The Vendor shall not act as proxy itself. Both the Voting Proxy and the Company in question or its designated service provider shall be entitled to verify the power of representation.
- Voting instructions from the Shareholder shall be forwarded by the Vendor to the respective Voting Proxy or to a service provider designated by this proxy, although not to the Company in question itself. The Vendor shall not execute the voting instructions itself. The Voting Proxy or the service provider designated by the proxy shall be entitled to verify the voting instructions.
- Where the appointed Voting Proxy or the Company refuses an appointment or where the Voting Proxy refuses to accept voting instructions in part or in full or fails to execute the instructions for other reasons, or fails to do so correctly or validly, then only the Company and/or the Voting Proxy shall be responsible for such actions, but not the Vendor.
- The Shareholder acknowledges that in some cases, the proxy appointment and the forwarding of voting instructions shall not occur immediately after they are entered or around-the-clock, but rather regularly on specific workdays, and shall be dependent upon processing times. As long as the Vendor has exercised due care and diligence, it shall assume no liability for voting instructions that are not transmitted or executed within the deadline. The Shareholder therefore agrees that the most recent voting instructions at Sherpany (www.sherpany.com) shall be forwarded.
- The Shareholder acknowledges that his/her voting instructions shall be accepted and forwarded by the Vendor exclusively within the service provided for this purpose at Sherpany (www.sherpany.com) (i.e., not via e-mail, telephone, or by any other means).
- The shareholder acknowledges that registering for an Annual General Meeting or appointing a proxy technically creates a voting instruction in favor of the proposals of the Board of Directors that the shareholder can modify at any time until the period for instructions is closed.
- In the event of any technical security risks, changes, or interruptions, the last known voting instruction at Sherpany (www.sherpany.com) shall be considered as the voting instruction to be forwarded.
- Shareholders duty of care
- The Shareholder must ensure that all means of authentication are kept confidential by him or her and (or) other Shareholders, and are protected against misuse by unauthorized persons. In particular, passwords should not be written down after they are created, and should not be stored in an unprotected terminal. The Shareholder shall bear all risks resulting from the disclosure of his or her means of authentication or those of a Co-User.
- If there is reason to suspect that unauthorized third parties have obtained knowledge of a means of authentication, then the affected means of authentication must be changed.
- The Shareholder shall be responsible for all consequences of the use, including misuse, of his/her means of authentication or those of a Co-User.
- Security at Sherpany, Exclusion of Vendor liability
- Despite all state-of-the-art security precautions, absolute security cannot be assured by either the Vendor or the Shareholder. The Shareholders terminal is part of the system, but is outside of the Vendors control and can become a weak point in the system. Despite all security measures, the Vendor cannot assume any responsibility for the terminal.
- The Shareholder acknowledges the following risks in particular:
– Insufficient knowledge of the system and insufficient security precautions on the terminal may facilitate unauthorized access (e.g. insufficiently protected data storage on the hard drive, file transfers, etc.). The Shareholder is responsible for keeping him/herself accurately informed regarding the necessary security precautions, and for instituting such precautions.
– It is impossible to preclude the creation of a traffic profile for the Shareholder by the network operator (e.g. Internet, SMS provider), i.e. it is possible for the network operator to trace with whom the Shareholder is in contact and when.
– There is the latent risk that a third party may obtain undetected access to the terminal during the use of Sherpany.
– There is the risk that when using a network (e.g. Internet, SMS), viruses and similar programs could be disseminated on the terminal when the terminal initiates contact with the network. Appropriate security software available on the market can support the Shareholder in his/her security precautions.
– It is important for each Shareholder to work only with software from a trusted source.
- In most cases, the Vendor does not mediate technical access to its services. This is the Shareholder’s sole responsibility. The Shareholder acknowledges in particular that as a rule, the Vendor does not sell the special security software required for Sherpany. The Vendor therefore offers no guarantee for either network operators (e.g. Internet, SMS providers) or the security software required for Sherpany.
- The Vendor offers no guarantee for the accuracy and completeness of the data and information made available to the Shareholder at Sherpany (www.sherpany.com).
- Any liability of the Vendor for losses incurred by the Shareholder as a result of transmission errors, technical defects, overload, interruptions (including required system maintenance), disruptions, illegal interference and willful blocking of telecommunication equipment and networks, or other shortcomings on the part of the telecommunication equipment and network operators shall be precluded.
- As long as the Vendor exercises due care and diligence, it shall not be liable for the consequences of disruptions and interruptions, particularly during processing, in the Sherpany system (e.g. caused by illegal interventions in the Vendors system).
- For the rest, the Vendor explicitly precludes liability for any software that it supplies (e.g. downloads) and hardware (including means of authentication), as well as for consequences that occur due to and during transmission of the software via a network (e.g. the Internet).
- Should the Vendor ascertain security risks, then in order to protect the customer, the Vendor reserves the right to interrupt at any time the services of Sherpany until such risks are eliminated. The Vendor shall assume no liability for any losses incurred as a result of this interruption.
- The Vendors liability for losses incurred by the Shareholder vis-à-vis third parties due to the nonperformance of contractual obligations, and for indirect losses and consequential damages such as lost profit or third party claims, shall be precluded.
- In the case of slight negligence, the Vendor shall assume no liability for losses caused by its agents or servants in the performance of their duties.
- Activation and blocking of the Sherpany Account
- The Sherpany Account shall be activated only when the Vendor or the service provider designated by the Vendor receives the application for the Sherpany Account with a handwritten signature. Any proxies and voting instructions issued prior thereto shall be considered invalid and shall not be executed if the signed application is not received or is not received by the deadline.
- The Vendor shall be entitled to block access by any Shareholder to one or all Sherpany services at any time, without prior notice and without statement of reasons, if it considers this to be necessary at its own discretion for legitimate reasons.
- The Shareholder acknowledges that the data will be transferred by means that include an open, publicly accessible network (e.g. Internet, SMS). The data may be transferred across national borders in an unmonitored fashion. This applies even if the data transmission occurs between a sender and recipient within Switzerland.
- Data entered by a Shareholder ("individual data") shall be treated as fully confidential by the Vendor. The Vendor complies strictly with applicable data-protection regulations of Swiss law. Nevertheless, the Vendor shall be entitled to provide the respective Voting Proxy with access to the Sherpany Account, particularly to the voting instructions and the authorization, and to provide the Company in question participating in Sherpany with access to the existing authorization, although not to the Sherpany Account.
- The Shareholder therefore agrees that individual data, particularly the voting instructions, will be transmitted through appropriate technical interfaces to the shareholder register and to the systems handling the Shareholders' Meeting or any system of the Company or a system of a third party assigned by the Company.
- Foreign legal systems
- The Shareholder acknowledges that foreign regulations could be violated if Sherpany services are used outside the country. The Shareholder shall be responsible for obtaining information in this regard. The Vendor rejects any liability in this regard.
- The Shareholder further acknowledges that import and export restrictions could exist for the encryption algorithms, and that the Shareholder could violate such restrictions if he/she uses Sherpany services from outside the country.
- If the Sherpany services are offered for a Company that is not incorporated under Swiss law, the Vendor shall then be authorized to execute those acts that are necessary for the use of the Sherpany Account by the Shareholder for such Companies pursuant to the law to which they are subject.
- Amendment of the agreement
- The Vendor reserves the right to amend at any time both these terms and conditions and the offer of Sherpany services. The Shareholder shall be notified of any such amendments via e-mail or by another appropriate means, and such amendments shall be considered as approved in the absence of written objection within one month of their announcement, and in any case upon the next use of the Sherpany services. In particular, the Vendor shall have the right to change at any time the domain (www.Sherpany.com) under which the Sherpany services can be accessed.
- Should the Shareholder declare that he/she does not agree to an amendment pursuant to 8.1, and should he/she submit his/her written objection within the deadline, then his/her Sherpany Account shall be continued with the existing Sherpany services under the existing terms and conditions. Should the Vendor be unable, as a result of the objection, to continue to provide the Sherpany services to the respective Shareholder, or be unable to do so at reasonable expense, then the Sherpany Account shall be automatically terminated.
- If the Sherpany services are no longer offered for a specific Company, then the Shareholder shall also no longer be entitled to receive corresponding Sherpany services with respect to this Company.
- Data processing for security purposes
The Shareholder and/or Co-User agree to the processing of all data by the Vendor for security purposes. The profiles generated in this manner shall be used to prevent any fraudulent activities and thus to protect the user.
- The Sherpany Account may be terminated by the Shareholder or the Vendor in writing at any time. If the Sherpany Account is terminated by the Shareholder, all powers of attorney issued to the respective Voting Proxies by the Vendor for a still pending Shareholders Meeting, as well as the voting instructions issued at Sherpany (www.sherpany.com), shall be canceled.
- Neither the inactivity of a Shareholder with respect to a Shareholders Meeting nor the acceptance and/or rejection or the cancellation of a specific power of representation of a Voting Proxy shall influence the validity of the rights and duties in connection with the use of the Sherpany Account, and in particular shall not constitute a revocation of the Vendors authorization for issuance of a power of representation to a Voting Proxy. Should this authorization of the Vendor expire, it shall come into effect again through the next use of the Sherpany services by the Shareholder.
- Statutory provisions
- Any statutory provisions governing the operation and use of the telecommunications equipment and networks shall remain reserved, and shall also apply for this access to Sherpany following their enactment.
- The Shareholder acknowledges that additional restrictions with respect to Sherpany services and functionalities could exist for Shareholders domiciled in certain countries.
The Vendor reserves the right to introduce fees for services at any time and/or to change existing fees.
- Governing Law and Jurisdiction