Xapo Gibraltar Limited

Last Updated: August 6, 2019

PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY. BY CLICKING TO ACCEPT, OR BY ACCESSING OR USING OUR SERVICES (AS DEFINED HEREIN), YOU AGREE TO BE BOUND BY THESE TERMS OF USE IN THEIR ENTIRETY AND ALL TERMS INCORPORATED BY REFERENCE.

You may register a user account, access and use our Services as an individual or on behalf of a corporation, partnership, limited liability company, or business entity of any kind established under the laws of Gibraltar or a foreign jurisdiction other than the United States of America (collectively, “Entity”). If you are using our Services on behalf of an Entity, (a) all references to “you” or “user” throughout these Terms will include that Entity, (b) you confirm that you are authorised to accept these Terms on that Entity’s behalf, and (c) in the event you or the Entity violates these Terms, that Entity agrees to be jointly and severally liable to us. Please note that there may be specific terms or conditions applicable to entities detailed herein.

THE ARBITRATION CLAUSE IN SECTION 20 GOVERNS RESOLUTION OF CERTAIN DISPUTES.

#1. SCOPE

These are the Terms of Xapo (Gibraltar) Limited, which shall hereinafter be referred as “Xapo”, “we”, “our” or “us”. Xapo is a company incorporated under the laws of Gibraltar.These Terms apply to any access and use of our website at https://xapo.com, our online services, our Android and iOS mobile apps, and any of our services related to or utilizing any of the foregoing, which we refer to in these Terms, collectively, as our “Services” or “E-money Services”. These Terms govern both individuals and entities that access and/or use the Services even if such individual or Entity does not register a user account. If you are a United States resident or Entity using our Services in the United States, please note that you are not engaging with Xapo (Gibraltar) Limited but instead with Xapo, Inc., a Delaware corporation and a wholly-owned subsidiary of Xapo Holdings Limited.

# 2. MODIFICATION OF TERMS

We may make changes to these Terms, including when there are changes in our Services, technology, regulation and for other reasons. If we do, we will provide you notice of such changes by posting the updated Terms on our website and changing the “Last Updated” date above. You should therefore refer to and read these Terms from time to time. Any amended Terms will become effective no earlier than fourteen (14) days after they are posted and apply prospectively to use of the Services after such changes become effective, except that changes addressing new functions of the Xapo Services or changes made for legal reasons will be effective immediately. Your continued use of the Services following the effective date of such changes will constitute your acceptance of such changes from time to time. If you do not agree to any amended Terms, you must discontinue using the Services.

# 3. ELIGIBILITY AND AGREEMENT

3.1. General Requirements. The Services are intended solely for users who are 18 or older and who satisfy the criteria described in these Terms. You represent and warrant that you: (a) are of legal age to form a binding contact (at least 18 years old); (b) have not previously been suspended or removed from using our Services; and (c) have full power and authority to agree to these Terms.

3.2. Restricted Locations. You may not use the Services if you are a Restricted Client (as the same is defined in Schedule 1 to the Terms) or where your use of the Services would be illegal or otherwise violate any applicable law. You represent and warrant that you are not a Restricted Client, you are not acting illegally or in violation of any applicable law and that you will not use any Services while located in any jurisdiction listed in Schedule 1. Additionally, you may not use the Services if you are located in, or are a citizen or resident of, any other jurisdiction which Xapo has designated, from time to time and at its discretion, as a country where the use of the Services is prohibited. Xapo may implement controls to restrict access to the Services from any jurisdiction prohibited pursuant to these Terms. You agree to comply with these Terms even if Xapo’s methods to prevent the use of the Services are not effective or can be bypassed.

3.3. If you do not agree to be legally bound by these Terms, you must not use our Services. If you use our Services, you agree to do so in compliance with these Terms and with applicable laws and regulations.

#4. XAPO ACCOUNT

4.1. Account. You may need to register for an account to access some or all of our Services (“Xapo Account”). To create or maintain your Xapo Account, or enable functions on your Xapo Account, you will be required to provide Xapo with certain information and documentation, including, as applicable, the information and documentation associated with identity verification and other screening procedures. You will: (a) create a unique password; (b) provide complete and accurate information; (c) promptly update any information you have provided so that the information is complete and accurate at all times; (d) maintain the security of your Xapo Account by protecting your password from unauthorised access or use; (e) promptly notify Xapo if you discover or suspect any unauthorised access or use of your Xapo Account or any security breaches related to your Xapo Account; and (f) be responsible for all activities that occur under your Xapo Account, and accept all risks of any authorised or unauthorised access to your Xapo Account. Xapo may refuse to permit you to register a Xapo Account or limit the number of Xapo Accounts that an individual or Entity may establish at its sole discretion. Xapo reserves the right in its sole discretion to refuse to open a Xapo Account or to temporarily or permanently suspend a Xapo Account, including, without limitation, where we are required or recommended to do so by applicable governmental, regulatory or law enforcement requirements, or where you fail to provide us with sufficient information, to our satisfaction, to verify your identity. The E-money Services are for the sole and exclusive use of the registered account holder.

4.2. Entities. Unless your Xapo Account is opened on behalf of an Entity, you will use the Services and your Xapo Account only for your own account and not on behalf of, or for the account of, any third party. If your Xapo Account is opened on behalf of an Entity, you will use the Services and your Xapo Account solely for the account of the specified Entity. If you use any Services on behalf of an Entity, you agree to these Terms on behalf of yourself and any such Entity, and you represent and warrant that you have the authority to bind the Entity to these Terms and that both you and the Entity will be jointly and severally liable under these Terms for any violation of these Terms or any other acts or omissions by the Entity or by you.

4.3. Responsibility for Account Activities. You will be bound by, and hereby authorise Xapo to accept and rely on, any agreements, instructions, orders, authorisations and any other actions made, provided or taken by anyone who has accessed or used your Xapo Account regardless of whether the access is authorised or unauthorised. Upon receipt of written notice from you that the security of your Xapo Account has been compromised, Xapo will take reasonable steps to protect your Xapo Account, including, for example, to cease to allow actions initiated using any compromised Xapo Account passwords. But, the first sentence of this Section 4.3 will continue to apply to any other Xapo Account password, and any suitable password issued to replace the compromised Xapo Account password.

#5. SUSPENDED ACCOUNTS

Xapo reserves the right, at any time and in its sole discretion, to temporarily or permanently suspend any account. If we decide to suspend and block your account, we will give you a notice of suspension at least 72 hours in advance. Notwithstanding the foregoing, Xapo shall also be entitled to immediately suspend an account without prior notice to you, in the event of, amongst other things, (a) any violation by you of these Terms, including but not limited to any violation of the “Prohibited Activities” section above; (b) the provision by you of any incorrect, incomplete or inconsistent information relating to your identity as part of the account creation process and/or as part of a pending compliance review; (c) a request made by a third party; (d) an order made by any competent authority, governmental body, regulator, court, justice entity, police or any similar authority or entity, provided always that Xapo, acting in its sole discretion, considers such suspension to be reasonable in the above mentioned circumstances.

YOU UNDERSTAND AND AGREE THAT YOU MAY NOT BE ABLE TO ACCESS FUNDS IN YOUR E-MONEY WALLET IF YOUR ACCOUNT IS SUSPENDED, BLOCKED OR IS OTHERWISE RESTRICTED, AS DETAILED IN THIS SECTION.

If the cause of the suspension is resolved, Xapo may require you to provide an external e-money wallet address operated by another e-money institution in order to send you the available funds remaining in your E-money Wallet. Alternatively, Xapo shall transfer funds to a third party upon an order of a competent regulator, justice entity, judge, court or other authority.

# 6. IDENTITY VERIFICATION

Xapo may, in its discretion, require identity verification and other screening procedures with respect to you or transactions associated with your Xapo Account. These verification and screening procedures may include, without limitation, checking the information you provide against any list issued by any governmental or international authority prohibiting or limiting business activities or transactions with any persons. You may be required to provide Xapo with certain personal information, including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, photograph of your government-issued ID or other photographic proof of your identity, information regarding your business, and information regarding your bank account. You hereby authorise Xapo, directly or through a third party, to make any inquiries Xapo considers necessary to verify your identity or protect against fraud, including but not limited to: (a) query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth); (b) query account information associated with your linked bank account (e.g., name or account balance); and (c) take action Xapo reasonably deems necessary based on the results of such inquiries and reports. You further authorise all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests. Xapo will have no liability or responsibility for any permanent or temporary inability to access or use any Services, including your inability to interact with service providers through the Site, as a result of any identity verification or other screening procedures.

#7. OUR PRIVACY POLICY

Please refer to our Privacy Policy located at https://static.xapo.com/terms/privacy-policy.html . Our Privacy Policy describes how we collect, use, and share your personal information.

As provided in our Privacy Policy, if you already are an existing user of any Xapo entity, you accept and agree that upon your acceptance of the Terms, your KYC information and/or documents may be shared with Xapo, as part of your on-boarding procedure.

#8. USER CONTENT

Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Xapo.

You grant Xapo a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you.

When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others.

You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.

# 9. GENERAL SERVICE TERMS

9.1. The Xapo E-money Services. Xapo provides a way to store, use, and manage electronic money (“E-money”) issued by Xapo in accordance with an E-money licence (“Licence”) granted by the Gibraltar Financial Services Commission (“GFSC”), through our E-money wallet service, which we call our “E-money Wallet”.

9.2. Xapo E-money Wallet. The E-money Wallet is an E-money account which enables you to store and redeem E-money and to transfer and receive E-money to or from third parties, through the mobile application specifically developed by Xapo for these purposes.

You acknowledge, agree and understand that you can open only one Xapo E-money Wallet in your own name and/or on behalf of an Entity. Xapo will only activate your E-money Wallet when the relevant due diligence procedures have been carried out to our satisfaction.

9.3. E-money Wallet Management. To add, exchange, move, and withdraw funds with Xapo, simply click on the respective button after logging in. You will be taken through a process that will display different available currencies and methods to conduct the intended transaction. The currencies and payment methods available to you will depend on your location and some other factors. The E-money Wallet is personalised to each user and certain factors involved, so only certain payment options may be shown for each order. At the end of the process, the transaction shall be debited from or credited to the respective account of your E-money Wallet.

Funds received by Xapo to add funds to your E-money Wallet will be exchanged for E-money. Your E-money Wallet will not be credited until cleared funds are received by Xapo and the necessary procedures and checks have been carried out to our satisfaction. Your ability to fund and withdraw your E-money Wallet may be subject to limits that we may establish from time to time.

If there is a negative balance on your E-money Wallet for any reason, you will be required to repay such negative balance by adding sufficient funds to your E-money Wallet without delay. Failure to do so shall constitute a breach of these Terms. Repayment of the negative balance is due immediately without notice. During such period when the E-money Wallet has a negative balance and until you make the required payment, Xapo reserves the right to block your E-money Wallet and suspend your access to and/or use of our E-money Services. We also reserve the right, at any time, to send you reminders or to take other debt collection measures, including but not limited to, mandating a debt collection agency or solicitors to pursue a claim in court. You agree to indemnify, defend and hold us harmless against any and all fees and other expenses reasonably incurred by us in connection with any debt collection or enforcement measures that we decide to take.

For the purposes of a funding transaction through a payment account or credit or debit card or other payment instrument, Xapo shall be the recipient of the payment and not a payment service provider.

When funding or withdrawing your E-money Wallet through wire transfer and/or any payment processor and/or payment method, incoming or withdrawn funds can be sent from or to an account in your own name or in the name of a third party. You are solely responsible for ensuring the accuracy of the information included in your transfer of funds, including account number, bank routing number, your Xapo-specific reference number and any other information requested by us. Xapo cannot revoke or cancel a wire once it has been initiated by a bank. You agree to indemnify, defend and hold us harmless against any and all costs, losses, damages, fees, charges, expenses and liabilities arising from any reversal of funds initiated by Xapo as a result of your failure to comply with the provisions of this section. Xapo reserves the right to delay or not process any incoming payment method for any reason including (but not limited to) where required by governmental, regulatory or law enforcement requirements. Xapo shall not be liable (to the fullest extent permitted by law) for any act, omission, mistake, default, delay, negligence, misconduct or insolvency of any third party, including any bank, payment processor, entity or person.

9.4. People Nearby Feature. People Nearby Feature is a marketplace platform that allows Xapo users, as independent third parties, to contact with other Xapo users to agree directly to add or withdraw funds from their E-money Wallets, by exchanging funds among them (“Transaction”), subject to the terms, conditions, rates and payment methods agreed directly among the parties involved in such Transaction.

You acknowledge and agree that Xapo shall not be party to any Transaction. You acknowledge and agree that Xapo only acts as the provider of the platform, allowing contact between Xapo users.

People Nearby Feature may be available or discontinued in selected territories at Xapo’s sole discretion, according to these Terms and applicable laws and regulations.

You acknowledge and agree that Xapo is not responsible for any errors, committed by your acts and/or omissions in connection with any Transaction. You acknowledge and agree that your use of People Nearby Feature is at your sole risk. Any payments in connection with any Transaction shall be agreed, processed, received and confirmed directly by the parties of the Transaction, at the sole risk of each party.

You represent, warrant and covenant that you will use the People Nearby Feature in a professional and workmanlike manner, according to good faith practices.

9.5. E-money Transactions. Your E-money Wallet transactions may be subject to limits due to security and legal requirements. You should ensure that your limits are sufficient to cover any transaction you intend to make as well as any applicable fees.

You acknowledge and agree that Xapo is not responsible for any errors committed by your acts and/or omissions in connection with any transaction initiated via the E-money Services.

#9.6. Xapo Debit Card. Xapo may from time to time offer a payment card as a service to compliment your Xapo Account. Your Xapo Card will be governed by separate applicable terms which will be made available to you at the same time as the Xapo Card is available for order.

A Xapo Card is a payment card which can be used worldwide to pay for goods and services at participating merchants that accept the card programme being used. The Xapo Card can also be used to withdraw money from cash machines (ATMs); these may charge you for your withdrawal.

You can only use the Xapo Card to spend funds which are available in your E-Money Wallet and we do not guarantee that a particular merchant will accept the Xapo Card so please check with the merchant before attempting the transaction if you are unsure.

If a Xapo Card is made available to you then you will be able to order a Xapo Card by following the applicable process in your Xapo Account and accepting applicable terms separate to these Terms. You will be notified when the Xapo Card is available to you. When the Xapo Card is available in your region, it becomes a mandatory service which means that if you have a Xapo Account you must follow the Xapo Card order process, agree to applicable terms and maintain active a Xapo Card.

To avoid the closure of your Xapo Account and to continue enjoying its functionality, you must have ordered your Xapo Card and accepted its applicable terms by no later than two months from the date when the Xapo Card is made available to you ( “Long Stop Date”). By the Long Stop Date all Xapo users will have to have ordered a Xapo Card. Xapo reserves the right to close the Xapo Account of all users who by the Long Stop date have not ordered a Xapo Card and accepted applicable terms without further notice. If at the Long Stop Date you have an active Xapo Card but you then subsequently cancel it or do not replace it, a two months’ prior notice of our intention to terminate our agreement with you and close your Xapo Account will apply.

If your Xapo Card expires, is lost, broken or stolen, you inform us that you do not want a replacement card or if you terminate your agreement for the Xapo Card, in these circumstances we also retain the right to terminate our agreement with you and close your Xapo Account by giving you two months’ notice of our intention to do so.

Upon termination of your agreement with us and closure of your Xapo Account for whatever reason, we will process the refund of any remaining balance belonging to you as quickly as we can. We are required to allow 5 days for any outstanding purchases made on your Xapo Card to arrive before we process the refund and most high street banks then take a further 2-3 working days before they show the refund in your personal bank account. For that reason, we ask you to allow 8-10 working days for the refund to show in your personal bank account. We do recommend that if you require the funds more swiftly you withdraw these via an ATM.

Your Xapo Card will expire on the expiry date on the card, at which point, subject to your Xapo Account being in good order, we may issue you a new Xapo Card to you shortly before the expiry date. We are not obliged to do so, and may elect not to issue a replacement Xapo Card at our sole discretion. If we do not issue a replacement card we reserve the right to terminate our agreement with you and close your Xapo Account by giving you two months’ prior notice. If we do issue a new Xapo Card, a new expiry date will apply and the new Xapo Card will expire on that expiry date.

9.7. Processing Fees. Xapo does not charges fees for adding or withdrawing funds to or from your E-money Wallet, but processing fees may apply depending on the payment method used to fund or withdraw your E-money Wallet.

At the end of the process of funding or “topping up” your E-money Wallet, the amount received by Xapo will be credited in your E-money Wallet less any applicable fees. At the end of the process of withdrawing your E-money Wallet, the amount transferred by Xapo will be debited in your E-money Wallet plus any applicable fees. Details of such fees will be made known to you during the E-money Wallet funding or withdrawing process and before any transaction to fund or withdraw your E-money Wallet may be submitted for processing. Additionally, details of our fees will be set out in the transaction receipt, which you will receive after the transaction has been processed.

Xapo reserves the right to charge additional fees or to change the amount of fees, and we will provide you at least 30 days advance notice of any such change. Xapo reserves the right to waive and/or reduce any fee at any time, with or without notice.

9.8. Safeguarding and Segregation of Funds. The funds deposited in your Xapo E-money Wallet are fully segregated in accordance with the safeguarding requirements imposed on electronic money institutions under the Gibraltar Financial Services (Electronic Money) Regulations 2011 (as amended from time to time). This means that the funds held in E-money Wallets on behalf of users are held by Xapo in safeguarding accounts with a credit institution that is duly authorised by the FSC. By placing the funds in a safeguarding account, those assets are being clearly identified as not being the property of Xapo, and will be protected from the claims of other Xapo creditors.

In the event of Xapo’s insolvency, funds held in a safeguarding account shall be protected and paid to users from such asset pool, in priority to all other creditors of Xapo (less any costs of distributing the asset pool), irrespective of Xapo’s financial position.

E-money stored in an E-Money Wallet constitutes a claim of the relevant user against Xapo, which is personal to such user. Subject to the “Assignment” Section of these Terms below, we will not assign or transfer our obligations towards our users in this regard nor will we grant any security right or other legal interest to any third party over our users’ E-money or over any funds held in a safeguarding account.

9.9. Continuity of Services. Our Services may evolve over time. This means we may make changes, replace, or discontinue (temporarily or permanently) our Services at any time for any reason with or without notice. In this case, you may be prevented from accessing or using our Services. If, in our sole discretion, we decide to permanently discontinue our Services, we will provide you with notice via our website.

9.10. Unacceptable Use or Conduct. You will not:

  • violate any law, regulation, contract, intellectual property or other third-party right, or commit a tort while using the Services;
  • use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
  • use the Services to pay for, support, or otherwise engage in any illegal gambling activities, fraud, money-laundering, or terrorist activities, or other illegal activities;
  • use any robot, spider, crawler, scraper, or other automated means or interface not provided by Xapo to access the Services or to extract data;
  • use or attempt to use another user’s Xapo Account without authorisation;
    attempt to circumvent any content filtering techniques Xapo employs, or attempt to access any service or area of the Services that you are not authorised to access;
  • introduce to the Services any malware, virus, trojan worms, logic bombs, or other harmful material;
  • develop any third-party applications that interact with our Services without our prior written consent, or unless otherwise agreed;
  • provide false, inaccurate, or misleading information;
  • post content or communications that are, in our sole discretion, libellous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
  • post content containing unsolicited promotions, political campaigning, or commercial messages (SPAM) or any chain messages or user content designed to deceive or trick the user of the Service;
  • post content containing private information of any third-party including, but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; or
  • encourage or induce any third party to engage in any of the activities prohibited under this Section 9.10

If you are blocked by Xapo from accessing the Xapo Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Use of our Services in connection with any transaction involving illegal products or services is prohibited. Xapo reserves the right to temporarily or permanently suspend your Xapo Account or otherwise restrict your use of the Xapo Services if any violation of this Section 9.10 occurs.

9.11. Authorised Uses of Our E-money Services. If you are an Entity, you are responsible for ensuring that only authorised persons use the Services on your behalf, and you agree that each such authorised person must register and obtain individual Xapo Account access credentials through Xapo’s website. You are permitted to use our E-money Services, only as we have authorised. You are responsible for ensuring that your personal information in your account profile is current and correct, including your email address and mobile phone number. You are also responsible for maintaining adequate security, control and confidentiality of your account information, including any personal identification numbers (PINs), passwords, application programming interface (API) keys or other codes associated with your account and any activity occurring within that account. The loss or compromise of this information may result in unauthorised access of your account, which may result in loss or theft of any funds held in your E-money Wallet. If you believe that: (a) your account has been compromised; (b) you need to report a security incident or have a security concern; and/or (c) you have experienced or are experiencing any operational problems, please contact us immediately describing the issue at hand as thoroughly as possible including the date on which you experienced the issue, a description of the nature of problem and details of the relevant part or function of the E-money Services where you experienced that problem. You are responsible for: (i) immediately notifying us of any unauthorised use of your password or account or any other breach of security, and (ii) ensuring that you logout of your account at the end of each session when accessing the E-money Services. We accept no responsibility or liability to you for any loss that you suffer as a result of failing to comply with this section or your failure to follow or act on any notices or alerts that we may send to you in relation to your use of or access to our E-money Services.

9.12. Using SMS/Text. To use the Xapo Services, whether as an individual account holder or a person authorised on behalf of an Entity account holder, you must provide a valid mobile phone number. This number is used as part of the authentication process. As part of using the Xapo Services, you are agreeing to receive SMS/text messages from us. Please note that while we do not charge you for SMS/text messages, your mobile carrier’s standard messaging rates will apply. Failure to provide a valid mobile phone number may result in restriction of your use of the Xapo Services. If Xapo suspects that your mobile number is invalid or that you are using a VOIP service to circumvent the requirement to provide a valid mobile phone number, Xapo may suspend or otherwise restrict your use of the Xapo Services.

9.13. Currency Exchange Transaction Rules. You acknowledge and agree that when you instruct Xapo to transfer funds between E-Money Wallets that are not denominated in the same currency, Xapo does an equivalent finance transaction in accordance with your instructions, incurring in a hedge for the risk of adverse price movements of the selected currency to be transferred. Therefore, you acknowledge and agree that the cancellation of a transfer of funds from one E-Money Wallet to another is not neutral, and it may be subject to an adjustment equivalent to the difference between the prices involved in the entire transaction. Xapo does not earn any profit from these eventual adjustments. Transfers between E-Money Wallets denominated in the same currency, are not subject to this adjustment.
Please review carefully our current Currency Exchange Transactions Rules here.

# 10. INTELLECTUAL PROPERTY

10.1. Ownership of Intellectual Property Rights. We and our licensors retain all right, title, and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in our Services and all content on our Services, including our trademarks, service marks, designs, logos, URLs, and trade names that are displayed on our Service, which we refer to in these Terms, collectively, as the “Xapo Materials”. We hereby grant you a limited, nonexclusive, and non-sublicensable license to access and use the Xapo Materials for your personal or internal business use. Such license is subject to these Terms and does not permit any resale of the Xapo Materials; the distribution, public performance or public display of any Xapo Materials; modifying or otherwise making any derivative uses of the Xapo Materials, or any portion thereof; or any use of the Xapo Materials other than for their intended purposes. The license granted under this Section 10 will automatically terminate if we suspend or terminate your access to the Services. We will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas or other information or materials regarding Xapo or our Services that you provide, whether by email, posting through our Services or otherwise, which we refer to in these Terms as Feedback. Any Feedback you submit is non-confidential and will become the sole property of Xapo. We will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You may not use, copy or retransmit anything on our website without our permission. We reserve all rights not expressly granted herein.

10.2. Trademarks. Xapo and the Xapo logo are Xapo’s or our licensor’s trademarks, registered trademarks or service marks. Any other trademarks mentioned in our website or mobile apps are the property of their respective owners.

10.3. Feedback. You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Xapo or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Xapo’s sole discretion. You understand that Xapo may treat Feedback as non-confidential.

# 11. THIRD-PARTY CONTENT

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Xapo does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

# 12. DISCLAIMER OF WARRANTIES

OUR E-MONEY SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. Your use of our E-money Services is at your sole risk. We and our licensors, service providers or subcontractors (if any) make no representations or warranties about the suitability of the information, software, products and services contained in our E-money Services for any purpose or their compliance with any accounting rules, principles or laws, and we expressly disclaim any representation or warranty that the E-money Services will be free from errors, viruses or other harmful components, that communications to or from the E-money Services will be secure and will not intercepted, that the services, functions and other capabilities offered by the E-money Services will be uninterrupted, or that their content will be accurate, complete or timely. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, WE DISCLAIM (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED AND WHETHER IMPOSED BY STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES RELATING TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY STATEMENT, WARRANTY OR REPRESENTATION EXCEPT THOSE EXPRESSLY AND SPECIFICALLY SET FORTH IN THESE TERMS AND THAT YOU SHALL HAVE NO REMEDIES IN RESPECT OF ANY STATEMENT, WARRANTY, REPRESENTATION OR CONDITION THAT IS NOT EXPRESSLY AND SPECIFICALLY SET FORTH IN THESE TERMS. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.

#13. NO ADVICE

Xapo is not acting and cannot act as an advisor, including as to any financial, legal, investment, insurance and/or tax matters. Any information provided by Xapo is for general information only. You are solely responsible for determining whether any contemplated transaction is appropriate for you.

# 14. COMPLIANCE WITH LAW; TAXES

You are responsible for complying with all applicable laws related to your activities and other use of the Services, including without limitation any reporting obligations and payment of all applicable taxes.

#15. INDEMNIFICATION

You agree to indemnify, defend and hold us, our employees, agents, consultants, subsidiaries, partners, affiliates, and licensors, harmless against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) arising from or in any way related to your use of our Services, your violation of these Terms, or your violation of any rights of any other person or Entity.

# 16. LIMITATION OF LIABILITY

IN NO EVENT WILL WE, OUR SUBSIDIARIES, PARTNERS, AFFILIATES, AGENTS, EMPLOYEES, LICENSORS, SERVICE PROVIDERS OR SUBCONTRACTORS (IF ANY) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL OR ANY SIMILAR OR LIKE LOSS), ARISING AS A RESULT OF OR IN CONNECTION WITH THESE TERMS, THE PERFORMANCE OR OPERATION OF OUR E-MONEY SERVICES, YOUR ACCESS TO, DISPLAY OF OR USE OF OUR E-MONEY SERVICES, ANY DELAY OR INABILITY TO ACCESS, DISPLAY OR USE THE E-MONEY SERVICES, ANY COMPUTER VIRUSES, INFORMATION, SOFTWARE, LINKED SITES, PRODUCTS OR SERVICES OBTAINED THROUGH THE E-MONEY SERVICES, OR THE ACT OR OMISSION OF ANY PERSON, BUSINESS OR OTHER THIRD PARTY USING OUR E-MONEY SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE, OUR LICENSORS, SERVICE PROVIDERS OR SUBCONTRACTORS SUBSIDIARIES, PARTNERS, AFFILIATES, AGENTS OR EMPLOYEES, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Notwithstanding the foregoing provision, in no event will the aggregate liability of Xapo, our subsidiaries, partners, affiliates, agents, employees, licensors, service providers, or subcontractors (if any) for any loss or damage that arises as a result of, or in connection with, any of the occurrences described above exceed the greater of $1000 or the service fees that you paid to us for the service we provide through the E-money Services during the month in which the incident occurred. The limitation of liability reflects the allocation of risk between the parties. The limitations of liability provided in these Terms inure to the benefit of us, our licensors, service providers and subcontractors subsidiaries, partners, affiliates, agents and employees.

SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

#17. RELEASE

To the fullest extent permitted by applicable law, you release Xapo from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.

# 18. TRANSFER AND PROCESSING DATA

In order for us to provide our Services, you agree that we may process, transfer and store information about you in other countries, where you may not have the same rights and protections as you do under local law. Xapo will, however, ensure that all transfers of Personal Data (as the same is defined in Regulation (EU) 2016/679 the “Regulation”) outside of the EU shall be carried out in compliance with the Regulation for as long as the same applies to Xapo.

#19. SEVERABILITY

If, for any reason, a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

# 20. ARBITRATION OF DISPUTES

PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.

You and Xapo agree to arbitrate any dispute arising under or in connection with these Terms or your use of our E-money Services, except for disputes in which either party seeks equitable and other relief for any alleged infringement or unlawful use of copyrights, trademarks, trade names, logos, trade secrets, patents or other intellectual property rights. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Xapo agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Xapo shall be sent to [email protected] You and Xapo further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that the seat or legal place of any arbitration will be Gibraltar; (c) that arbitration will be conducted confidentially by a single arbitrator appointed by the Gibraltar Chamber of Commerce; (d) the arbitration shall be conducted in accordance with the rules of International Chamber of Commerce; and (e) that the courts in Gibraltar will have exclusive jurisdiction over any appeals of an arbitration award. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.

WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND XAPO WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.

The arbitrator, Xapo, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

Any claim arising out of or related to these Terms or our Services must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred, which means that you and Xapo will not have the right to assert the claim.

If any portion of this Section 20 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 20 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 20; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 20 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 20 will be enforceable.

# 21. GOVERNING LAW AND JURISDICTION

These Terms and any dispute or claim between you and Xapo arising out of or in connection these Terms or any terms incorporated into these Terms by reference or their subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of Gibraltar, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Subject to the “Arbitration” section above, the courts of Gibraltar shall have exclusive jurisdiction to settle any dispute or claim between you and Xapo arising out of or in connection with these Terms or any terms incorporated into these Terms by reference or their subject matter or formation (including non-contractual disputes or claims).

# 22. UNCLAIMED PROPERTY; DEATH OF ACCOUNT OWNERS

22.1. Under applicable law, after a specified period of inactivity by you with respect to your Xapo account, Xapo may be required to report and/or remit any funds it is holding in custody for you in accordance with applicable laws.

22.2. Xapo reserves the right to deduct a dormacy fee or other administrative charges from such unclaimed funds, as permitted by applicable law.

22.3. In the event that a Xapo Account owner dies or is otherwise incapacitated, Xapo will cooperate with duly authorized representatives in accordance with applicable laws and regulations. Upon notice of the death of a Xapo Account owner, Xapo will suspend activity in such Xapo Account, pending verification or resolution of such notice. Notwithstanding the foregoing, Xapo reserves the right to require that the recipient or ultimate beneficiary of any transfer from a Xapo Account (a) provide evidence reasonably satisfactory to Xapo that demonstrates entitlement to a transfer and (b) comply with the Identity Requirement provisions set forth in Section 6 hereof.

#23. NO WAIVER

Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of that right or provision.

# 24. ASSIGNMENT; ENTIRE AGREEMENT

Xapo may assign these Terms to its parent company, affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets. These Terms, together with any other agreements that apply to you, such as our Developer Terms, constitute the entire and exclusive agreement between us and you regarding its subject matter, and supersede and replace any previous or contemporaneous written or oral contract, warranty, representation or understanding regarding its subject matter.

You agree to first contact Xapo and attempt to resolve any complaint or claim at the following:

E-mail: [email protected]
Phone number: +350 200 08125‬

Xapo (Gibraltar) Limited
Suite 23
Portland House
Glacis Road
Gibraltar
Gibraltar
GX11 1AA

SCHEDULE 1

In compliance with UN/OFAC and statutory regulations as well as Xapo’s own internal assessment of risk associated with serving customers of specific countries, Xapo has determined that it will not provide its Services to several countries. Further, for some countries Xapo has taken additional steps to prevent access to Xapo’s platform from users located in those countries. The list and breakdown of these countries are as follows, and the following persons shall be referred to as “Restricted Clients” and each a “Restricted Client”.

Xapo does not allow on-boarding of persons located in the following countries/regions:

  1. Crimea (Krym) Region
  2. Cuba
  3. Iran, Islamic Republic of
  4. Korea, Democratic People’s Republic of
  5. Sudan
  6. South Sudan
  7. Syrian Arab Republic

Xapo will not allow on-boarding of nationals of the following countries/regions:

  1. Afghanistan
  2. Belarus
  3. Congo, The Democratic Republic of the
  4. Cote D’Ivore (Ivory Coast)
  5. Crimea (Krym) Region
  6. Cuba
  7. Eritrea
  8. Iraq
  9. Iran, Islamic Republic of
  10. Korea, Democratic People’s Republic of
  11. Lebanon
  12. Liberia
  13. Lybia
  14. Myanmar (Burma)
  15. Sudan
  16. Sierra Leone
  17. Somalia
  18. South Sudan
  19. Syria (Syrian Arab Republic)
  20. Yemen
  21. Zimbabwe