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 “your” or “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 25 GOVERNS RESOLUTION OF CERTAIN DISPUTES.
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, your sole and exclusive remedy is to terminate the use of the Services and close your account.
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 are only allowed to register a Xapo Account and use the Services if you are at least 18 years of age and eligible in accordance with the laws of your jurisdiction or under the laws of any other jurisdiction to which you may be subject. Xapo has no obligation or capability to, and therefore does not, verify whether you are eligible to use any of the Services and we shall not bear any responsibility for your use of the Services.
3.2 Restricted Locations: You may not use the Services if you are located in, or a citizen or resident of any state, country, territory or other jurisdiction where your use of the Services would be illegal or otherwise violate any applicable law. You represent and warrant that you are not a citizen or resident of any such jurisdiction and that you will not use any Services while located in any such jurisdiction. You also may not use the Services if you are located in, or a citizen or resident of, any other jurisdiction where Xapo has determined, at its discretion, to prohibit the use of the Services. 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.
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 act 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 subsection 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
5.1 Xapo reserves the right in its sole discretion, to temporarily or permanently suspend and block Xapo Accounts This Account blocking or suspension may be a consequence of, among other cases considered reasonable on the sole discretion of Xapo, inconsistent information regarding your identity, a pending compliance review, the request of a third party, the request and/or order of an authority, governmental body, regulator, justice entity, police, etc.
5.2 YOU UNDERSTAND AND AGREE THAT YOU MAY NOT BE ABLE TO ACCESS YOUR FUNDS IF YOUR XAPO ACCOUNT IS SUSPENDED, BLOCKED OR IS OTHERWISE LIMITED.
5.3 In case the cause of the suspension is resolved, Xapo may require you to provide an external bitcoin wallet address in order to send you the available remaining funds in your Xapo Account, or may transfer funds to a third party upon an order of a competent regulator, justice entity, judge, court or other authority which is reasonable in the sole discretion of Xapo.
5.4 We further reserve the right in our sole discretion, to refuse or cancel any of our Services and/or refuse to distribute funds in your Xapo Account to any person for legitimate reasons, including, without limitation:
- if we have reason to believe that your activities or use of the Services may be illegal;
- if we may be harmed by any fiscal or pecuniary damage due to your activities on or through the Services; or
- if we consider that you have used the Services in a manner which contravenes any of these Terms at our sole discretion.
6. IDENTITY VERIFICATION
6.1 Xapo may, in its sole 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.
6.2 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:
- query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth);
- query account information associated with your linked bank account (e.g., name or account balance); and
- take action Xapo reasonably deems necessary based on the results of such inquiries and reports.
6.3 You further authorise all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests.
6.4 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, as a result of any identity verification or other screening procedures.
6.5 If Xapo (in its sole and absolute discretion) is satisfied with the information and documentation you have provided, Xapo shall verify your account (“Xapo Verified Account”).
8. XAPO FIAT TOKEN (“XFT”)
8.1 Xapo may deploy and activate a set of smart contracts (“Smart Contract System”) for the purposes of creating and issuing XFT in accordance with the parameters coded into the Smart Contract System by Xapo, as further described in these Terms.
8.2 XFT to be created by Xapo through the Smart Contract System shall be based on the ERC20 token standard.
8.3 XFT does not constitute any form of money or legal tender nor does it constitute any representation of money (including electronic money).
8.4 XFT are denominated in a range of Fiat Currencies. For example, if you purchase 100 XFT denominated in pounds sterling at a purchase price of one pound sterling (£1) per XFT, Xapo shall hold at least 100 hundred pounds sterling (£100) in the XFT Reserve or the equivalent amount in another currency to back those XFT.
8.5 XFT are 100% backed by a basket of national government issued currencies (such as pounds sterling) (“Fiat Currency”) held by a licensed and regulated bank (“XFT Reserve”) which in aggregate shall at least equate to the value of all outstanding XFT at any time.
8.6 You may redeem your XFT from Xapo at any time, subject to the limitations and conditions set out in these Terms.
9. DIGITAL CURRENCY
The term “Digital Currency” as used in these Terms refers to cryptocurrencies, such as bitcoin, and cryptographic tokens, such as XFT.
10. RISK DISCLOSURES; ASSUMPTION OF RISKS; RELEASE OF XAPO
RECEIVING, STORING AND TRANSFERRING DIGITAL CURRENCY, AND USE OF OTHER SERVICES PROVIDED BY XAPO, INVOLVES SIGNIFICANT RISKS AND POTENTIAL FOR FINANCIAL LOSSES.
10.1 By opening a Xapo Account and/or using the Services you expressly acknowledge, accept and assume the following risks and agree that Xapo shall not be responsible for or otherwise liable for any direct or indirect loss or damage of any kind whatsoever arising directly or indirectly from the occurrence in full or in part of any of the following risk events:
- the features, functions, characteristics, operation, use and other properties of any Digital Currency and the software, networks, protocols, systems, and other technology (including, if applicable, any blockchain) (“Underlying Technology”) used to administer, create, issue, transfer, cancel, use or transact in any Digital Currency may be complex, technical or difficult to understand or evaluate;
- any Digital Currency and its Underlying Technology may be vulnerable to attacks on the security, integrity or operation of the Digital Currency or its Underlying Technology (“Attacks”), including Attacks using computing power sufficient to overwhelm the normal operation of a blockchain or other Underlying Technology;
- any Digital Currency or Underlying Technology may change or otherwise cease to operate as expected due to a change made to the Underlying Technology, a change made using features or functions built into the Underlying Technology or a change resulting from an Attack. These changes may include, without limitation, a “fork” or “rollback” of a Digital Currency or blockchain;
- any Digital Currency may be cancelled, lost or double spent, or otherwise lose all or most of their value, due to forks, rollbacks, Attacks, or failure of the Digital Currency to operate as intended;
- any Digital Currency may decrease in value or lose all of its value due to various factors including discovery of wrongful conduct, market manipulation, changes to Digital Currency properties or perceived value of Digital Currency properties, Attacks, suspension or cessation of support for a Digital Currency by Xapo or other exchanges or service providers, and other factors outside the control of Xapo;
- any Digital Currency may decrease in value or lose all of its value due to legislative or regulatory activity, or other government action. Government regulation of Digital Currency is unsettled and rapidly evolving;
- any Digital Currency may be lost if sent to the wrong address (for example but without limitation, if the address is improperly formatted, contains errors, or is intended to be used for a different type of Digital Currency);
- unauthorized access by third parties of your login credentials to gain access to your Xapo Account, including through carelessness or forgetfulness by you, or the third party obtaining control over another device or account used by you in connection with any enhanced security measures enabled for your Xapo Account.
10.2 The risks described in this Section 10 may result in loss of Digital Currency, decrease in or loss of all value for Digital Currency, inability to access or transfer Digital Currency, inability to trade Digital Currency, inability to receive financial benefits available to other Digital Currency holders, and other financial losses to you. You hereby assume, and agree that Xapo will have no responsibility or liability for such risks. You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against Xapo and its shareholders, members, directors, officers, employees, agents and representatives related to any of the risks set forth herein.
10.3 You represent and warrant that you have:
- the necessary technical expertise and ability to review and evaluate the security, integrity and operation of any Digital Currency that you decide to acquire; and
- the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits and risks of any Digital Currency. You accept the risk of receiving, storing and transferring Digital Currency through the Services, and are responsible for conducting your own independent analysis of the risks specific to the Digital Currency and the Services.
10.4 The risks described above are not, nor are they intended to be, a comprehensive or exhaustive list of risk factors. You remain responsible for taking care to understand the technological, economic and legal nature of Digital Currencies and for carefully managing your exposure in accordance with that understanding and your risk appetite for innovative, volatile and speculative new technologies and Digital Currencies.
11. REFERRAL PROGRAMME
11.1. The Xapo Referral Programme (“Referral Programme”) is a programme that Xapo may offer from time to time through which you may earn a referral fee (“Referral Fee(s)”) that will be credited to your Xapo Wallet if you meet the Referral Programme requirements. The Referral Programme is subject to these Terms.
11.2 Under the Referral Programme, you may be eligible to earn a Referral Fee in a Digital Currency or another currency for referring a friend to us. You may use the Referral Programme by sharing a unique link. Provided you meet the requirements (as in force at that time) more than once, you are entitled to a Referral Fee each time you meet such requirements.
11.3 When available, the Referral Programme is open to all customers who have been verified by us and have a verified Xapo Account and are located in a region where the Referral Programme is made available to them. Any friends that you refer to us when the Referral Programme is available must not already have a Xapo account and you cannot refer yourself.
11.4 The Referral Programme and/or any of its features may be unavailable, inaccurate or interrupted from time to time for a variety of reasons. Xapo is not responsible for any unavailability, interruptions or errors of the Referral Programme or its features.
11.5 Xapo may delay your access to the Referral Programme or even crediting you with an earned Referral Fee where we have made an information request to you for information relating to your identity or any other request that we have made to you in relation to your Xapo Account.
11.6 The Referral Programme and all the information relating to it are provided entirely for information purposes only on an “as is” and “as available” basis. We make no warranties, representations, or guarantees of any kind, express or implied, including but not limited to, accuracy, currency, or completeness, the operation of the Referral Programme, the information, materials, content, availability, and products.
11.7 We shall have no liability for any printing, production, typographical, mechanical or other errors in the Referral Fee summaries or in your Xapo Account. We reserve the right to invalidate Referral Fees from your account if we determine that such Referral Fees were improperly credited or obtained illegally or fraudulently.
11.8 To the fullest extent permitted by applicable law, we disclaim all warranties, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose.
11.9 All Referral Fees earned shall be paid into your Xapo Wallet in an amount of the applicable Digital Currency equivalent to the amount of USD or other currency of the Referral Fee due. The USD price for the Digital Currency at the time of the Referral Fee being due will be used as the rate of exchange to determine the amount of Digital Currency we need to deposit into your Xapo Wallet for a Referral Fee.
11.10 You have the sole responsibility of ensuring that your Referral Fees are properly credited. Any claim for Referral Fees not credited accurately must be received by us within seven (7) days of the date of claimed accrual of such Referral Fees. Manual issuance of Referral Fees can take up to sixty (60) days.
11.11 You may only use our Referral Programme in good faith for lawful purposes. If we consider, at our sole discretion, that you are using the Referral Programme illegally or fraudulently, we reserve the right to refuse to credit you with earned Referrals Fees and to reverse them in the event they have already been credited to your Xapo Wallet.
11.12 Xapo reserves the right at any time and from time to time to restrict, suspend, modify or discontinue, temporarily or permanently, the Referral Programme or any part thereof with or without notice to you and without further obligations to you.
11.13 In the event that Xapo terminates the Referral Programme no further Referral Fees will be earned or redeemed after the date of termination.
11.14 Any conduct detrimental to us, or any misrepresentation or fraudulent activities in connection with the Referral Programme may result, in addition to any rights or remedies available to us, in the termination of your participation in the Referral Programme, as well as forfeiture of Referrals Fees obtained, all as determined by us in our sole discretion.
11.15 In the instance that fraudulent activity is suspected, we reserve the right to suspend your Xapo Account whilst further investigation is undertaken. In doing so we may request evidence in the form of receipts or other information to support the transactions associated with your Xapo Account.
11.16 Any attempt by any person to undermine the legitimate operation of the Referral Programme may be a violation of criminal and civil law, and, should such an attempt be made, we reserve the right to seek damages from any such person to the fullest extent permitted by applicable law.
11.17 You are responsible for the payment of all taxes which may result from participation in the Rewards Programme.
11.18 You represent and warrant to us that you have obtained the express consent from the individuals whose data you provide us with.
12. USER CONTENT
12.1 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.
12.2 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.
12.3 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.
12.4 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.
13. GENERAL SERVICE TERMS
13.1 Support for Bitcoin and XFT Only: Unless otherwise indicated to you, the only Digital Currency supported by Xapo is bitcoin and XFT. If you want to store, transfer and/or use any Digital Currency other than bitcoin or XFT, and this is not indicated to you, you cannot do it through the Xapo Services. If you send or transfer to your Xapo Wallet or Vault any Digital Currency that is not bitcoin or XFT or any other Digital Currency indicated to you as supported by Xapo, Xapo shall not be responsible for receiving or storing it in any way and you may lose any right in connection to such Digital Currency or value without any right or claim to Xapo.
13.2 The Xapo Services: Xapo provides a way to receive, transfer, store, and manage bitcoins, using our wallet service, which we call Xapo Wallet, and the Xapo deep cold storage service, which we call Xapo Vault. Xapo may from time to time also provide a mechanism to purchase and redeem XFT and this is also undertaken in the way set out in section 8.
13.3 Bitcoin Management: To manage your bitcoins with Xapo, simply click on the respective transaction button after logging in. You will be taken through a process that will display the relevant information to conduct the intended transaction. You shall pay transactions with available funds in your Xapo Wallet and available payment methods provided by Xapo, depending on your location and some other factors. It is personalized 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 Xapo Wallet.
Xapo does not charge fees for adding or withdrawing funds, but processing fees may apply depending on the payment method.
Your ability to fund and withdraw your Xapo Wallet may be subject to limits we may establish from time to time.
When funding or withdrawing your Xapo 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 shall be solely responsible for all costs, losses, damages and liabilities arising from any reversal of funds initiated by Xapo as a result of your failing to comply with the provisions of this Section 13. Xapo reserves the right to delay or not process incoming or withdrawing wires and/or payment processor method for any reason, and where required by governmental, regulatory or law enforcement requirements. Xapo is not liable for any act, omission, mistake, default, delay, negligence, misconduct or insolvency of any third party, including any bank, entity or person.
You acknowledge and agree that when you instruct Xapo to transfer funds between wallets, Xapo does an equivalent finance transaction in accordance with your instructions, incurring in a hedge for the risk of adverse price movements of bitcoin and/or the default currency to be transferred. Therefore, you acknowledge and agree that the cancellation of a transfer of funds from one 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.
13.4. Bitcoin/Fiat Denomination Service: In case the fiat Services rendered by Xapo Bank (Gibraltar) Limited are available in your jurisdiction, the following Terms will apply. In case such fiat Services are not available in your jurisdiction, Xapo provides you our Bitcoin/Fiat Denomination Service. You are solely responsible for determining whether the fiat Services rendered by Xapo Bank (Gibraltar) Limited are authorised in your jurisdiction according to local applicable laws and regulations and the terms provided in the link above.
The Bitcoin Fiat Denomination Service (“Fiat Accounts”) is a wallet service that allows you to keep your Xapo Wallet balance in Fiat currency, locking the value of your bitcoins in Fiat currency, at a certain conversion rate agreed by you through the process of the relevant transaction. Your Fiat Accounts will always hold bitcoins, displayed in the equivalent amount of Fiat currency locked by you upon conversion.
For the sake of clarity, Xapo will hold at all and any time in your Fiat Accounts bitcoins upon which you and Xapo agreed its value in Fiat currency.
13.5 Buy/Sell Bitcoins: To purchase and/or sell bitcoins with Xapo, simply click on the ‘BUY BITCOINS’ button after logging in. You will be taken through a process that will display a bitcoin price, allowing you to buy and/or sell bitcoins at such a price. If you are purchasing bitcoins, you shall pay for them with available funds in your Wallet, or available currencies and payment methods depending on your location and some other factors.
When an order to purchase and/or sell bitcoins has been completed, the relevant funds or bitcoins shall be debited/credited from your Xapo Account accordingly. If we discover an error on our own that results in you receiving less than the amounts of funds to which you are entitled, we will rectify it by crediting your Xapo Account for the difference. If we discover an error on our won that results in you receiving more than the amounts of funds to which you are entitled, we will rectify it by debiting from your Xapo Account the difference and in the case there aren’t any available funds we temporarily suspend some functions, until your Xapo Account is debt free.
13.6 Transactions Limits: Your 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 Services.
13.7 Buy/Redeem XFT: To purchase XFT from Xapo, simply click on the BUY XFT button after logging in. You will be taken through a process that will display an XFT price, allowing you to buy XFT at such a price. If you are purchasing XFT, you shall pay for them with available funds in your Xapo Account, or available currencies and payment methods depending on your location and some other factors.
You may only purchase XFT if you have a Xapo Verified Account.
Subject to compliance with the provisions of these Terms, XFT shall be autonomously issued and delivered by the Smart Contract System to your Wallet following receipt by Xapo of the purchase amount. If you have opted to pay for the XFT with available funds in your Wallet, the purchase amount shall be debited from the available funds in your Wallet.
To redeem XFT from Xapo, simply click on the REDEEM XFT button after logging in. At this stage Xapo may (in its sole and absolute discretion):
- carry out, to its satisfaction, all necessary “know your customer” and other similar checks which Xapo may be obliged to perform; and
- ensure, to its satisfaction, that it has complied with all applicable laws and regulations in connection with the redemption of XFT to you.
You agree that you shall, promptly upon Xapo’s request, supply such information and documentation as may be reasonably requested pursuant to the above. If Xapo (in its sole and absolute discretion) is satisfied with the information and documentation you have provided, Xapo shall re-verify your account and provide you with Xapo’s redemption wallet address (“Redemption Wallet Address”).
You may only redeem XFT if you have a Xapo Verified Account.
You acknowledge and accept that Xapo may refuse or reject to provide you with the Redemption Wallet Address until:
- you have provided all information and documentation that may be requested under these Terms; and
- we have determined that it is permissible to redeem XFT to you under applicable law.
Upon receiving the XFT to the Redemption Wallet Address Xapo shall, within 3 business days, credit your Wallet with the corresponding fiat amount. For example, if you purchased 100 XFT denominated in pounds sterling and your XFT were 1 to 1 pegged to pounds sterling, if you transfer 100 XFT to the Redemption Wallet Address, Xapo shall credit your Wallet with 100 pounds sterling (£100).
13.8 OTC Transactions: These Terms shall govern all OTC transactions entered into between Xapo and you (each such Transaction an “OTC Transaction”).
OTC Transactions shall be conducted by Xapo and you in accordance to industry custom and practice, which means industry standards, practices, methods and procedures conforming to the applicable laws and regulations, and the exercise of the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged within the cryptocurrency industry and business sector.
Any dispute, controversy or claim arising out of or in connection with the OTC Transaction entered into thereunder, including any question regarding its existence, validity, invalidity or any breach or termination thereof, shall be settled in accordance with Section 25 of these Terms. The Xapo address provided in these Terms shall be deemed to be the place of performance of all obligations arising under the Agreement and the OTC Transactions entered into hereunder.
13.9 Processing Fees: Please review carefully our current processing fees here.
Outgoing transactions. Outgoing bitcoin transactions from your Xapo Account to another Xapo Account are not subject to any processing fee. Outgoing bitcoin transactions from your Xapo Account to a bitcoin address outside of Xapo are subject to a processing fee that you can review here: Bitcoin Transaction Fees.
Incoming transactions. Incoming bitcoin transactions to your Xapo Wallet and/or Vault equal to or below a certain amount are subject to a special processing fee so as to cover the transaction cost of the Bitcoin network. This special processing fee shall be automatically deducted from the respective transaction. Please review our current special processing fee here.
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.
13.10 Xapo Bitcoin Reserve: Xapo maintains a proprietary reserve of bitcoins (“Bitcoin Reserve”) that is designed to ease the impact of bitcoin losses that are a direct consequence of certain incidents, as described below, and that are not related in any way with your own actions, omissions or errors. The Xapo Bitcoin Reserve is provided to you at no charge.
The Xapo Bitcoin Reserve is designed to cover direct and effective losses suffered by users as a result of attacks of hackers to our systems, theft by any third party and/or Xapo employee from our systems or facilities, break-ins at a physical location of our vaults, and/or our bankruptcy, which are not due to or related to your acts, omissions or errors (“Qualifying Losses”).
The Xapo Bitcoin Reserve does not cover cases of hacking of individuals’ and entities’ systems, devices and personal accounts, such as phones, computers, email accounts, etc. For example, a loss suffered as a result of your failure to maintain adequate security, control or confidentiality of your Xapo Account information, including any personal identification numbers (PINs), passwords, API keys or other codes associated with your Xapo Account and any activity occurring within that Xapo Account, will not be considered a Qualifying Loss.
The Xapo Bitcoin Reserve is primarily designed to cover the loss of bitcoins stored by our users in the Xapo Vault, our deep cold storage service that incorporates multiple layers of cryptographic security to help secure your bitcoins. These processes include multi-factor authentication and private key segmentation between others.
The Xapo Bitcoin Reserve is also designed to cover bitcoins held by Xapo in “Hot Storage” (i.e., connected to a network in order to meet the liquidity needs of Xapo Wallet users) and it is intended to hold an equal or greater amount of bitcoins than the bitcoins held by Xapo in Hot Storage.
WHILE WE HAVE DESIGNED THE XAPO BITCOIN RESERVE TO HELP LESSEN THE IMPACT OF BITCOIN LOSSES THAT ARE OUTSIDE OF OUR USERS’ CONTROL, WE DO NOT AND CANNOT REPRESENT OR WARRANT THAT THE XAPO BITCOIN RESERVE WILL HAVE A SUFFICIENT NUMBER OF BITCOINS TO COVER ANY OR ALL LOSSES SUFFERED BY OUR USERS IN THESE CIRCUMSTANCES.
In the event of a Qualifying Loss, bitcoins stored by users in our Vault will have priority to be covered by the Xapo Bitcoin Reserve. Qualifying Losses by Xapo Wallet users shall only be covered by the Xapo Bitcoin Reserve after the Qualifying Losses of Vault users have been covered, because bitcoins held in Xapo Wallets are subject to a higher propensity for cyber-attack, and we reward users that take their own security measures, including preferring our Vault Service.
In these cases, the Xapo Bitcoin Reserve shall cover the Qualifying Losses in the following priority order:
Qualifying Losses stored in the Xapo Vault of users. If the Xapo Bitcoin Reserve is not enough to cover 100% of Vault users’ Qualifying Losses, it shall cover Vault users’ losses on a pro rata basis, based upon the total value of their Qualifying Losses in proportion to the total value of bitcoin lost by all Xapo users as a result of the incident.
Qualifying Losses stored in the Xapo Wallet of our users. If the Xapo Bitcoin Reserve is not enough to cover 100% of Wallet users’ Qualifying Losses, it shall cover Xapo Wallet users’ losses on a pro rata basis, based upon the total value of their Qualifying Losses in proportion to the total value of bitcoin lost by all Xapo users as a result of the incident.
For avoidance of doubt, each Entity user is counted only once in the above calculations, regardless of how many authorized persons use the Services on behalf of that Entity user.
The use of the Xapo Bitcoin Reserve is optional for our users. As a condition to receiving any bitcoins and/or funds from the coverage of the Xapo Bitcoin Reserve, you agree to (i) timely cooperate with Xapo upon its request in connection with any coverage claim relating to your bitcoins, including by timely providing any information or documentation that Xapo reasonably requests, and (ii) sign any documents, including but not limited to a release of further claims against Xapo, that Xapo may require.
13.11 Forks: If, as a consequence of a “fork” (as such term is commonly known in the bitcoin industry), bitcoin holders are granted an equivalent or proportional amount of a new Digital Currency or values that are not bitcoin, Xapo shall not have any obligation whatsoever in connection to such new Digital Currency or value, provided, however, that Xapo may grant you, at its sole discretion, a reasonable term to withdraw such Digital Currency or value and transfer it to a third party. If you choose not to withdraw the total balance of the Digital Currency or value within such term, Xapo reserves the right to automatically convert the total balance of such Digital Currency into bitcoin and credit it to your Xapo Wallet. The above does not mean and shall not be interpreted in any way as an obligation of Xapo to provide any support or withdrawal option of any Digital Currency or value other than bitcoin.
13.12 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 or mobile apps.
13.13 Bitcoin Transactions: Xapo cannot and does not guarantee the value of bitcoins. You acknowledge and agree that the value of bitcoins is highly volatile and that buying, selling, and holding bitcoins involves a high degree of risk. Additionally, the bitcoin consensus network is solely responsible for verifying and confirming proposed transactions that you submit via the Services, and Xapo cannot and does not confirm, cancel, or reverse wallet-to-wallet transactions, other than confirmation of the Bitcoin network’s completion of a transaction. The Bitcoin network is operated by a decentralized network of independent third parties. Once a transaction request has been submitted to the Bitcoin network via the Services, the Bitcoin network will automatically complete or reject the request and you will not be able to cancel or otherwise modify your transaction request. You acknowledge and agree that Xapo is not responsible for any errors or omissions that you make in connection with any bitcoin transaction initiated via the Services. The Services help you submit your bitcoin transaction request for confirmation to the Bitcoin network. However, Xapo has no control over the Bitcoin network and therefore cannot and does not ensure that any transaction request you submit via the Services will be completed. You acknowledge and agree that the transaction requests you submit via the Services may not be completed, or may be substantially delayed, by the Bitcoin network. When you complete a transaction request via the Services, you authorize us to submit your transaction request to the Bitcoin network in accordance with the instructions you provide via the Services.
To increase the security of your bitcoins storage at Xapo, Xapo has designed high-level security measures to the Services. For that reason, Xapo bitcoin sending addresses are not designed to receive bitcoin for Xapo users. Therefore, Xapo cannot and does not guarantee that any bitcoin transaction reversed by a third party, and/or bitcoins sent directly to any Xapo sending address, shall be received by the Xapo user intended to receive such reversed transaction or bitcoins sent.
13.14 Bitcoin Transactions; Transmission Delays: Xapo Services include several security measures and layers to increase the security of your bitcoins storage at Xapo. For this reason, transaction(s) to a bitcoin address outside Xapo for a significant amount of bitcoins, may take longer than a standard transaction(s) of bitcoin. You acknowledge and agree that a transaction(s) to a bitcoin address outside of the Xapo system for a significant amount of bitcoins may be delayed.
Before processing any transaction(s), Xapo reserves the right to take the necessary time for the purpose of verifying your identity, verifying your activity and conducting security and other internal procedures in relation to your Xapo Account.
13.15 Wallet Address and Private Key: When you create a Xapo Account as an individual or Entity, the Services generate and store a cryptographic private and public key pair that you may use to send and receive bitcoins via the Bitcoin network. The public key generated by the Services serves as your bitcoin wallet address, and may be shared with the Bitcoin network and with others to complete bitcoin transactions. The private key uniquely matches the wallet address and must be used in connection with the wallet address to authorize the transfer of bitcoin from or to that wallet address.
13.16 Custody of Bitcoins: Xapo is a custodian of any bitcoins transferred to a Xapo Wallet or Xapo Vault. Xapo does not obtain any legal or beneficial right, title or interest in your bitcoins that you store in your Wallet and Vault. Please note, however, that Xapo may give you a small amount of bits in connection with your creation of an account with Xapo (bits are a fractional amount of bitcoins equal to 0.000001 of one bitcoin), but unless and until you have verified your identity with Xapo, you will not have a legal or beneficial right to these bits from Xapo and may be restricted in your ability to utilize the Xapo Services. Once you have verified your identity with Xapo and Xapo has determined that your use of the Xapo Services complies with applicable laws, these will become your bits and Xapo will no longer have any legal or beneficial right to these bits.
13.17 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 harm Xapo or 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.
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 actions, 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 occurs.
13.18 Authorised Uses of Our Services: You are permitted to use our Services, only as we have authorised. You are responsible for ensuring that the information in your Xapo Account is current and correct, including, as applicable, your Entity business phone number, your email address, and mobile phone number. You are also responsible for maintaining adequate security, control and confidentiality of your Xapo Account information, including any personal identification numbers (PINs), passwords, API keys or other codes associated with your Xapo Account and any activity occurring within that Xapo Account. If you are an Entity, you are responsible for ensuring that only authorized persons use the Services on your behalf, and you agree that each such authorized person must register and obtain individual Xapo Account access credentials. The loss or compromise of this Xapo Account information may result in unauthorised access of your Xapo Account, which may result in loss or theft of any Digital Currency held in your Xapo Account. If you believe your Xapo Account has been compromised, need to report a security incident, experience any operational problems, or have a security concern please contact us describing the issue at hand as thoroughly as possible including the date, type of problem and part of the Xapo Services where you experienced that problem. You are responsible for: (i) immediately notifying us of any unauthorised use of your password or Xapo Account or any other breach of security, and (ii) ensuring that you exit from your Xapo Account at the end of each session when accessing the Services. We accept no responsibility 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 Services.
13.19 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.
13.20 Export Controls: The Xapo Services may be subject to export control regulations under applicable law. By using the Xapo Services you represent that you are not an individual or Entity that is, or an Entity owned or controlled by persons or entities that are, (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, or any other governmental authority with jurisdiction over Xapo or the Xapo Services; (ii) identified on the Denied Persons, Entity, or Unverified Lists of the U.S. Department of Commerce’s Bureau of Industry and Security; or (iii) located, organized or resident in a country or territory that is, or whose government is, the subject of U.S. economic sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan, or Syria. You further represent that you will not use the Xapo Services to conduct any transaction with or on behalf of any person or Entity listed in clauses (i) through (iii) above or otherwise in violation of law. Xapo may cease to provide the Xapo Services to you for any reason, and with no notice, if it determines that you have violated any of the above representations. You understand and consent that Xapo may be legally required to detain, to deny your access to, and to report to one or more governmental authorities, such of your property or property interests as are in Xapo’s possession or control in the event of certain sanctions imposing these obligations. These representations, covenants, and obligations are continuing and you agree to notify Xapo immediately in writing if your status under any of the above covenants changes.
13.21 Transaction Reversals and Cancellations: Transactions you have initiated using the Services generally may not be reversed or cancelled by you once submitted to or accepted by Xapo. If your transaction involves a payment by you of Digital Currency and such payment is not successful or if your payment method has insufficient funds, you authorize Xapo, in its sole discretion, either to cancel the transaction or to debit your other payment methods that you have made available to us, including from other balances held in your Xapo Account or other linked accounts, in any amount necessary to complete the transaction. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, insufficient funds (NSF), a negative balance or similar fees charged by your payment provider. Xapo reserves the right to refuse to process, or to cancel or reverse, any purchases or sales of Digital Currency in its sole discretion, even after funds have been debited from your account(s), if Xapo suspects the transaction involves (or has a high risk of involvement in) money laundering, terrorist financing, fraud, or any other type of financial crime; in response to a subpoena, court order, or other government order; if Xapo reasonably suspects that the transaction is erroneous; or if Xapo suspects the transaction relates to a use prohibited by the Terms. In such instances, Xapo will reverse the transaction and we are under no obligation to allow you to reinstate a purchase or sale order at the same price or on the same terms as the cancelled transaction.
13.22 Negative Balance: You undertake to always have a zero or positive balance in your Xapo Account. If for whatever reason your Xapo Account goes into a negative balance, you agree to repay the negative balance immediately without any notice from us by adding funds to your Xapo Account, otherwise your failure to do so shall constitute a breach of these Terms.
You authorize Xapo, in its sole discretion, to debit your other payment methods that you have made available to us, including from other balances held in your Xapo Account or other linked accounts, in any amount necessary to remedy a negative balance.
Without prejudice to our right to set-off in these Terms, if you fail to remedy a negative balance we may block your Xapo Account and suspend your access to and/or use of our Services, send you reminders or take such other reasonable actions to recover the negative balance from you, for example, we may use our right to set-off, a debt collection service or take further legal actions. We will charge you for any costs we may incur as a result of these additional collection efforts.
13.23 Statements; Transaction Confirmations: Xapo does not provide periodic account statements for general Xapo Accounts. You may obtain a record of account balances, transfers and purchases and sales of Digital Currency by logging into your Xapo account or by contacting customer support at [email protected] Xapo will provide a transaction activity receipt to your email following each purchase or sale action relating to your account. Deposit information shall include the transaction date, type and amount deposited, and transaction IDs for Digital Currency deposits. Transfer information shall include the transaction date, type, destination address and amount transferred, and transaction IDs for Digital Currency transfers. Receipts for purchase and sale transactions shall include the transaction date, type, amount, and pricing information, if applicable.
13.24 Fees and charges: The rates, fees and charges we apply to your actions and use of our Services are clearly shown in your Xapo Account prior to you accepting them. You agree to pay all rates, fees and charges we apply on time. Prompt payment is essential and shall be made without previous demand and to no one but us or without our prior consent. We are entitled to grant time or other indulgence for the payment or satisfaction of any of your obligations under these Terms without affecting any of our rights, or operating as a waiver of such right in whole or in part. All fees and charges we apply shall be deducted either from the balance of your Xapo Account or other linked accounts, from the funds being credited to your account or any other payment method made available for such purposes.
13.25 Language of Communications: All our communications with you will be in English. Other languages may be used for convenience purposes only, but we do not warrant that we will use other languages other than English to communicate with you.
14. YOUR REPRESENTATIONS AND WARRANTIES
By creating a Xapo Account and/or by using the Services you hereby agree, represent and warrant that:
- you have read, understood and accept these Terms;
- you have the necessary authority and consent to accept these Terms, to enter into a binding agreement with Xapo and to perform the obligations set out therein;
- you have sufficient understanding of the functionality, usage, storage, transmission, mechanics, risks and intricacies associated with cryptocurrencies (such as Bitcoin), cryptocurrency storage facilities (including virtual current wallets), Blockchains and blockchain-based software systems;
- you have experience and sufficient knowledge in financial and cryptocurrency matters and are able to evaluate the benefits and risks of acquiring cryptocurrencies via the Services;
- if you are an individual, you are at least 18 years of age, you have sufficient legal capacity (in your jurisdiction) to accept these Terms and to enter into a binding agreement with Xapo on the terms set out therein;
- you are not a politically exposed person and you do not have any relationships (e.g. relative, associate etc.) with a person who holds or held during the last 12 months any public position;
- you are a citizen of, resident or domiciled in a Restricted Location or using the Services from a location in a Restricted Location, nor are you an entity (including, but not limited to, any company or partnership) incorporated, established or registered in or under the laws of a Restricted Location, nor are you using the Services for or on behalf of any such person or entity;
- you understand that laws regarding cryptocurrencies vary throughout the world, and that it is your responsibility to make sure you properly comply with any law, regulation or guideline in your country of residence or any other law or regulation which you are subject to regarding the use of the Services. To avoid any doubt, you confirm that you understand that your ability to access and use the Services does not necessarily mean that the Services and/or your activities through the Services are legal under the laws, regulations or directives relevant to you;
- you understand that investing in any virtual currency involves greater risks than associated with investment in traditional currencies or assets and as a result loss of capital may occur;
- you understand that you should not invest more than you can afford to lose and that you understand that any risks taken by you are solely your responsibility, and Xapo bears no responsibility whatsoever for funds lost whether directly or indirectly;
- you shall not use the Services for any purpose that is illegal and you shall not introduce any funds
such whose origin is such as but not limited to:
- human trafficking;
- money laundering, terrorist financing, proliferation of weapons of mass destruction;
- any goods of services that are illegal or the promotion, offer or marketing of which is illegal or that are offered in connection with illegal, obscene or pornographic content, depict children or minors in sexual postures, depict means of propaganda of signs of unconditional organisations glorifying war or violating human dignity;
- any goods or services, promotion, offer or marketing of which would violate copyrights, industrial property rights or other rights of any person;
- archaeological findings;
- drugs, narcotics or hallucinogens;
- weapons of any kind;
- llegal gambling services;
- ponzi, pyramid or any other “get rich quick” schemes;
- goods that are subject to any trade embargo;
- media that is harmful to minors and violates laws and, in particular, the provision in respect of the protection of minors;
- body parts or human remains;
- rotected animals or protected plants; or
- ny other illegal goods, services or transactions.
- you shall not use any funds you receive through the use of the Services to finance, engage in, or otherwise support any unlawful activities;
- you shall not interfere with or attempt to interrupt the proper operation of the website andor mobile application or the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, passwords or data mining, or any other means;
- using the Services is not unlawful or prohibited under the laws of your jurisdiction or under the laws of any other jurisdiction to which you may be subject and your use of the Services shall be in full compliance with applicable laws (including, but not limited to, in compliance with any tax obligations to which you may be subject in any relevant jurisdiction);
- you will comply with any applicable tax obligations in your jurisdiction arising from your use of the Services;
- you will monitor all and any changes to your Xapo Account and take all steps to maintain and ensure the confidentiality of your Xapo Account’s credentials, including, but not limited to passwords and emails and/or usernames;
- you will immediately inform us of any unauthorized use of your Xapo Account or password, or any other breach of security;
- you are responsible for any and all damages caused, and all liability actions brought against Xapo for any breach infringement of these Terms or of any third-party rights or violation of any applicable laws;
- nothing in these Terms excludes or limits your liability for fraud, death or personal injury caused by their negligence, breach of the Terms implied by operation of law or any other liability which may not be limited or excluded by laws;
- any errors or malfunctions caused by or otherwise related to the Services including your own failure to properly maintain or use your Xapo Account may result in the funds;
- you acknowledge and agree that Xapo may, where applicable, make payments to third parties that help initiate, conclude or maintain a business relationship between Xapo (or its affiliates) and its clients. These payments may include rebates, commission, widened spreads, and profit sharing;
- you will provide Xapo with correct and relevant documents and personal information upon request. In case you provide counterfeit documents and false personal information, such behavior will be interpreted as a fraudulent activity; and
- you are responsible for implementing all reasonable and appropriate measures for maintaining the confidentiality and security of your Xapo Account name, user ID, passwords, personal identification and mobile unlock codes that you use to access the Services.
15. INTELLECTUAL PROPERTY
15.1 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 15 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 or mobile apps without our permission. We reserve all rights not expressly granted herein.
15.2 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.
15.3 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.
16. 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.
17. DISCLAIMER OF WARRANTIES
OUR SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND.
Your use of our 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 Services for any purpose or their compliance with any accounting rules, principles or laws, and we expressly disclaim any representation or warranty that the Services will be free from errors, viruses or other harmful components, that communications to or from the Services will be secure and will not be intercepted, that the services, functions and other capabilities offered by the Services will be uninterrupted, or that their content will be accurate, complete or timely.
EXCEPT AS EXPRESSLY STATED IN THESE TERMS, WE DISCLAIM ALL WARRANTIES, AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY , INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE 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.
18. 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.
19. 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. You are solely responsible for withholding, collecting, reporting, paying, settling and/or remitting any/or all other taxes to which you may become liable to the appropriate tax authorities in such jurisdiction(s) in which you may be liable to pay tax howsoever arising. Xapo shall not be responsible for withholding, collecting, reporting, paying, settling and/or remitting any taxes (including, but not limited to, any income, capital gains, sales, value added or similar tax) which may arise from any action or transaction contemplated by these Terms or related to the Services.
20.1 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.
20.2 Xapo reserves the right to exercise sole control over the defense, at your sole cost and expense, of any claim subject to an indemnity set out in this section.
20.3 The indemnity set out in this section is in addition to, and not in lieu of, any other remedies that may be available to Xapo under applicable law.
21. LIMITATION OF LIABILITY
In no event will the aggregate liability of Xapo, our licensors, service providers, or subcontractors for any loss or damage that arises out of, or is connected with, any of the occurrences described above exceed the greater of $100 or the service fees that you paid to us for the service we provide through the Services during the month during which the incident occurred. The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this Section 21 will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose. 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.
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.
23. 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.
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.
25. ARBITRATION OF DISPUTES AND GOVERNING LAW
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 Services, except for disputes in which either party seeks equitable and other relief for any alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT. 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 in accordance with the Arbitration Act 1895 of Gibraltar; and (d) that the courts in Gibraltar will have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms and 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.
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 25 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 25 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 25; 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 25 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 25 will be enforceable.
26.1 If any money you owe us is overdue for payment, or if you fail to remedy a negative balance on your Xapo Account, with or without our prior notice, we may exercise our right to set-off. This means that we have the right to debit any amount necessary from other payment methods that you have made available to us, including from any other balances held in your Xapo Account or other linked accounts, to reduce or repay what you owe us or to remedy a negative balance.
26.2 Where applicable, if the amount to be set-off is expressed in different currencies we reserve the right to convert available balances in your Xapo Account at a market rate of exchange for the purpose of set-off.
26.3 Xapo will only do this if we consider it reasonable to do so, taking into account your circumstances and any regulatory requirements.
26.4 You have no right to set-off any claims that you may have against Xapo against any liability that you may have to Xapo.
26.5 Our right to set-off also applies to any other balances held in your Xapo Account or other linked accounts.
27. FORCE MAJEURE
Xapo shall not be liable or responsible to you, or be deemed to have breached these Terms, for any failure or delay in fulfilling or performing its obligations under these Terms, if and to the extent such failure or delay is caused by, results from or is otherwise connected to acts beyond its reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist, hacking or cyber threats, attacks or acts, or other civil unrest; (d) any laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders and decrees; or (e) action by any nation or government, state or other political subdivision thereof, any entity exercising legislative, regulatory, judicial or administrative functions of or pertaining to government, including, without limitation, any government authority, agency, department, board, commission or council.
28. UNCLAIMED PROPERTY; DEATH OF ACCOUNT HOLDER
28.1 Unclaimed Property: 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 Digital Currency it is holding in custody for you in accordance with applicable laws. Xapo reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by applicable law.
28.2 Death Of Account Owner: 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 of Digital Currency from a Xapo Account (a) provides evidence reasonably satisfactory to Xapo that demonstrates entitlement to a transfer; (b) complies with the Identity Requirement provisions set forth in Section 6 hereof; (c) indemnifies and holds Xapo harmless to the extent and in the form required by Xapo, including, but not limited to, claims of negligence; and (d) provides Xapo with any other information, evidence, documentation, confirmation or any other details or verification that we may reasonably require in order to allow us to process such a request.
29. NO WAIVER
Any delay or failure on our part to exercise or enforce any provision, right or remedy in these Terms will not constitute a waiver of that provision, right or remedy or preclude its exercise at any subsequent time.
30. 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]
Xapo VASP Limited
Suite 23, Portland House
Glacis Road, Gibraltar